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Opinion by
Green, C.:
This was an action brought by Chester R. Plaskett, by his next friend and father, G. R. Plaskett, against the Atchison, Topeka & Santa Fé Railroad Company, for damages alleged to have been caused by the negligence of the defendant. The action was tried before the court and jury in McPherson county, and resulted in a verdict and judgment for $6,000 for the plaintiff. A number of errors are assigned, for which a reversal is asked.
The undisputed facts in this case are: That on the 5th day of December, 1887, a freight train consisting of 27 or 28 cars passed through McPherson, between three and four o’clock in the afternoon, going east. The railroad track, in the limits of the city,, is located about the middle of Simpson street, which runs east and west; among the streets running north and south, and in the order named extending east, are Main, Ash, Elm, and Oak. As the train crossed the last-named street, it whistled and stopped for the Rock Island crossing. The plaintiff, who was at that time seven years and two months old, was returning from school along Oak street, to his home, situated on the north side of the track from the school-house, which was located one block from the intersection of Simpson and Oak streets. The child was accompanied by some eight or ten boys and girls about his own age, going north along Oak street, on the sidewalk. As they reached the crossing, they found the street obstructed by this freight train, and, according to the evidence of the plaintiff, it had been standing there about a minute, when he went up to the train and one of his schoolmates said to him, “Let us climb over across and go home;” and when that was said he started to climb over, and the train moved; that he caught hold of the rod or ladder by which the brakemen climb to the top of the cars, before the train • started; that the boy with him helped him to get onto the cars, and, after he got hold, the train moved. The movement of the train jerked him under the cars and the wheels passed over his right leg, making amputation necessary below the knee. There was no flagman or gates at this crossing, which was one of the principal crossings of the city, which contained at that time a population of some 5,000. The special findings of the jury are as follows:
“1. Did the plaintiff, Chester R. Plaskett, take hold of defendant’s train ? Ans. Yes.
“ 2. If yes, was the said train in motion and moving and being moved at the time plaintiff took hold of it? A. No.
“ 3. Did the plaintiff attempt to get on the defendant’s train while the same was in motion ? A. No.
“4. Did the plaintiff know that there was danger in attempting to get on the defendant’s train under the circumstances? A. No.
“ 5. If your answer to the last question be no, state fully the reason that he did not know of said danger. A. He was too young to know danger.
“6. Was the defendant guilty of willful and gross negligence toward the plaintiff under the circumstances? A. They were guilty of gross negligence, not willful.
“ 7. If yes, state fully in what such willful and gross negligence consists ? A. In the train-men knowing this place was frequented by school children, and not being on the lookout.
“8. Was the defendant guilty of ordinary negligence under the circumstances? A. Yes. •
“ 9. If your answer to the last question be yes, state particularly in what said negligence consisted. A. The train-men not being at their proper places.
“10. How many school children necessarily used the sidewalk and crossing where the accident occurred ? A. From 40 to 60.
“11. If you find for the plaintiff, how much damages do you allow him for physical pain and mental suffering? A. One thousand dollars ($1,000).
“12. How much do you allow — how much damages do you allow plaintiff as the natural and probable result of the injury ? A. Five thousand dollars ($5,000).
“13. How much do you allow plaintiff as exemplary damages ? A. 000.
“14. Did the acts of the plaintiff contribute to the injury? A. Yes.”
The first, and perhaps the only question for our determination in this case is, whether the railroad company was guilty of any negligence, or violated any duty which it owed to this child, as it ran its train through the city of McPherson. It is unnecessary for us to discuss the different degrees of negligence, for the reason that most courts of last resort, notably the supreme court of the United States, fail to recognize any negligence unless it be culpable. The findings of the jury, upon which negligence is predicated in this case, consist in the fact that the train-men knew that the crossing where the accident occurred was frequented by children going to and from school; that they were not on the lookout for persons crossing the track, or in a proper position upon the train to prevent persons from climbing on the ears. These were the only findings imputing negligence to the defendant below. It was a proper precautionary measure for the company to stop its train at the crossing of another railroad, and one which the law recognizes. The evidence indicated that the train was running at a slow rate of speed through the city, and came to a full stop as it approached the Rock Island crossing, and immediately started again; the engineer, fireman and forward brakeman were on the engine, and looked to see that the track was clear; they did not see the plaintiff attempt to board the train. Can it be successfully claimed that the defendant owed a duty to this child to have men posted at proper intervals on top of the train to keep vigilant watch and see that he did not attempt to climb upon its cars ? While greater care is demanded in the operation of trains in populous cities than in sparsely-settled districts through which a railroad may run, we do not think the law imposes any such a duty upon a railroad, even in cities. It would be difficult to conceive how a train could be successfully guarded so as to prevent persons from climbing on to the cars at crossings, or moving at a low rate of speed through towns and villages.
But it is claimed that the railroad company did owe to this child the duty of active vigilance, to see that he was not injured; that the condition of things at the crossing in question, the population of the city, and the almost constant travel over the railroad track, being but a block from the school-house where 700 or 800 children were in attendance; and that the safety of these children demanded the utmost care and the greatest precaution upon the part of the company. It is doubtless true that this crossing was used a great deal by children going to and from school, and it therefore became necessary to exercise a great degree of care to prevent accidents, but the regulation of this and the other crossings rested primarily with the city authorities, and the failure to properly guard these crossings can hardly be charged as negligence upon the part of the defendant when no ordinance of the city required it. To uphold the verdict and judgment in this case, there must be some negligence chargeable to the railroad company. The tender years of the child may indeed excuse him from concurring negligence in this case, but his inability to contribute to the cause of the injury, on account of his youthfulness, cannot supply that negligence which the law says must exist before he would be entitled to recover damages. In a ease not unlike this in many respects, this court has said:
“ In all courts culpable negligence consists in the failure to exercise the amount of care required, whether that amount be slight, ordinary, or great, and whether the corresponding degree of negligence be called gross, ordinary, or slight, or merely negligence. In the present case, we take it that all the parties having any connection with said accident were required to exercise that degree of care and diligence which an ordinarily prudent person would exercise under.like circumstances. This is ordinary care, and the failure to exercise it would be ordinary negligence, or culpable negligence, or, as some courts would say, merely negligence, and if all the parties in this case exercised ordinary care, then no one was guilty of culpable negligence. Now, all negligence, to be culpable, necessarily implies the failure to properly perform some duty. Now, what duty did the railroad company owe to Charles W. Heuigh which it did not properly perform? No relation existed between them. He was not a passenger, nor an employé, and had no business with the railroad company of any kind or character. He had no right to climb upon said car as he did, nor to touch it, nor even to go upon the company’s premises. Technically, he was a mere trespasser, and the company owed to him no duty except such as it owes to trespassers in genera], or except such as it owes to all mankind. We have heretofore held that all persons must use their property and conduct their affairs with reference to the rights of all other persons, and with reference to all known or anticipated surroundings, and that even trespassers have a right to expect that such will be done. (K. C. Rly. Co. v. Fitzsimmons, 22 Kas. 686, 690, et seq.; K. P. Rly: Co. v. Brady, 17 id. 380, 384, et seq.) And we will still adhere to this doctrine. But no person is bound to anticipate something which is not likely to occur, or to so conduct his affairs as to prevent accidents which are not likely to happen. This has reference where no specific duty exists, but only such general duties as all mankind owe to each other.” (C. B. U. P. Rld. Co. v. Henigh, 23 Kas. 347.)
See also the case of A. & N. Rld. Co. v. Flinn, 24 Kas. 627.
The principle decided in these two cases settles the question of the liability of the railroad company in this ease. We do not think any wrong was shown upon the part of the plaintiff in error.
We recommend a reversal of the judgment of the court below.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam:
The case of A. T. & S. F. Rld. Co. v. Plaskett, No. 5665, was submitted with the case of the same title, also from McPherson district court. All of the questions involved in this case were also involved in that, and the judgment of the court below is reversed upon the authority of that case. | [
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The opinion of the court was delivered by
Valentine, J.:
Two proceedings in habeas corpus have been instituted in this court, in each of which the validity of the organization of Garfield county is attempted to be challenged. In the first proceeding, it appears that Mrs. Cordelia Short was regulary charged in the district court of that county upon a criminal information with committing the offense of manslaughter in the first degree. She obtained a change of venue from that court to the district court of Hodgeman county, where she was tried and convicted, and sentenced to confinement in the penitentiary for the term of five years; and it is now claimed that, because of the alleged invalidity of the organization of Garfield county, she is unlawfully restrained of her liberty by George H. Case, the warden of the state penitentiary. In the other case, the petitioner, James Cross, was charged before a justice of the peace of Center township, in Garfield county, with committing the offense of assault and battery, and was tried and convicted, and sentenced to pay a fine of §2.50, and to stand committed to the county jail until such fine and the costs of suit should be paid; and he now claims that he is unlawfully restrained of his liberty by J. B. Newbold, a constable of said Center township.
It appears that the county of Garfield was created as a territorial entity by an act of the legislature which took effect on March 23, 1887. (Laws of 1887, ch. 81, §6; Gen. Stat. of 1889, ¶ 1491.) It was to contain, and now contains, twelve congressional townships of land, to wit, townships number 21, 22 and 23 south, of ranges number 27, 28, 29 and 30 west. This creation of the county had nothing to do with its subsequent organization as a political entity, a municipal county, a corporation or quasi corporation. Afterward, and on April 16, 1887, the county was duly organized as a municipal county, a corporation, under the statutes of Kansas as they then ex isted. (Comp. Laws of 1885, ¶¶ 1400-1412; Gen. Stat. of 1889, ¶¶ 1577-1593.) It was divided into six municipal townships according to existing law, one of which was the above-named Center township. A full set of county and township officers was duly elected, and they qualified and served; a county-seat was duly established, and named “ Eminence,” and since that time the county has had a full and complete county organization as a county municipality; and it has in fact and at alLtimes since acted as a duly- and legally-organized and existing county under the statutes of Kansas relating to counties and county officers; (Comp. Laws of 1885, chs. 25, 26, ¶¶ 1429-1736; Gen. Stat, of 1889, chs. 25, 26, ¶¶1611-1929;) and it has at all times since and by all persons been recognized as a duly- and legally-organized and existing county; and it is an organized and existing county defacto, if not such de jure. It will therefore be seen that the county was created territorially by a statute, and it was afterward organized as a municipality under the statutes, and has since acted and continues to act as such under the statutes; and no question has ever been raised or could fairly be raised as to the legality or validity of any one of these statutes except as to the first, the one by which the county, or rather its territorial boundaries, was originally created.
The petitioners, however, now raise the question of the validity of said first-mentioned statute in these proceedings. Or in other words, they claim that the act creating Garfield county territorially, or, in other words, defining its boundary lines, is unconstitutional and invalid, although no claim is made that the statutes under which the county was organized, and the statutes under which the county has been and is now acting as a county, are subject to any such infirmities, or that they are not amply sufficient and adequate to authorize counties to organize arid to act under them as legal and valid county organizations. The parties, however, agree that the county of Garfield in area contains only “four hundred and thirty ánd one-half square miles, and no more, as shown by the plats, field-notes and records of the original government survey, now on file in the office of the auditor of state in the state capitol; ” while the constitution requires that no county shall be organized with a less area than 432 square miles. (Const., art. 9, § 1.) It is therefore claimed by the petitioners, upon the facts as, set forth in the aforesaid agreement, and upon no other facts or evidence, that the organization of Garfield county was and is absolutely void; that the county now has no legal or valid existence as a municipal entity; that therefore the aforesaid criminal prosecutions were and are absolutely void; that the judgments rendered therein, to wit, the judgment rendered by the district court of Hodgeman county against Cordelia Short, and the judgment rendered by the justice of the peace of Garfield county against James Cross, were and are absolutely void, and therefore that the imprisonment of these two persons is without authority of law, and illegal. We do not think, however, that the question of the validity or invalidity of the organization of Garfield county can be raised in these collateral proceedings or in any collateral manner. The question can be raised only by the state, in an action or proceeding in the nature of quo warranto. Where a public organization of a corporate or quasi-corporate character has an existence in fact and is acting under color of law, and its existence is not questioned by the state, its existence cannot be collaterally drawn in question by private parties. (Dill. Mun. Corp., 4th ed., §43a; Cooley, Const. Lim., 6th ed., pp. 309, 310. See also the following cases: Voss v. School District, 18 Kas. 467; School District v. The State, 29 id. 57; Back v. Carpenter, 29 id. 349; Ritchie v. Mulvane, 39 id. 241, 255, 256, 257; Mendenhall v. Burton, 42 id. 570; Tisdale v. Town of Minonk, 46 Ill. 9; Nettering v. City of Jacksonville, 50 id. 39; Town of Geneva v. Cole, 61 id. 397; City of St. Louis v. Shields, 62 Mo. 247; Inhabitants of Fredericktown v. Fox, 84 id. 59; The State v. Fuller, 96 id. 165; The People v. Maynard, 15 Mich. 463, 470; Stuart v. School District, 30 id. 69; Bird v. Perkins, 33 id. 28; Arapahoe Village v. Albee, 24 Neb. 242; Town of Henderson v. Davis, 106 N. C. 88; Speck v. The State, 7 Baxt. [Tenn.] 46; Ford v. Farmer, 9 Humph. [Tenn.] 152,159,160; Sherry v. Gilmore, 58 Wis. 324; Austrian v. Guy, 21 Fed. Rep. 500; Hill v. City of Kahoka, 35 id. 32. See also the cases of Worley v. Harris, 82 Ind. 493; The State v. Leatherman, 38 Ark. 81. And as to officers de facto see the following cases: Ex parte Strang, 21 Ohio St., 610; Brown v. O’Connell, 36 Conn. 432; The State v. Carroll, 38 id. 449; Laver v. McGlachlin, 28 Wis. 364; Cole v. Black River Falls, 57 id. 110; Burt v. W. & St. P. Rld. Co., 31 Minn. 472.)
As before stated, the county of Garfield was organized under valid laws, it is now acting under valid laws, and the only question which we are now asked to consider is, whether the statute defining its boundaries, is valid or not. It is claimed that the statute does not give to it territory enough by 1-)-square miles, or 960 acres, to make it valid. We do not think that we can consider this question in these proceedings. But we might say, however, that the plats and field-notes of the original government survey are not conclusive evidence upon this subject. They are only prima facie. They may be rebutted or impeached as to their accuracy and correctness, and the fact that the legislature and the governor have created the county, and that it has been duly organized and is now acting as a county, is some evidence against their correctness, provided they show what the parties have agreed they show in this case. The question, however, as to whether the county has sufficient area or not cannot be litigated in either of these present habeas corpus proceedings.
The writ of habeas corpus prayed for will therefore be denied, and a judgment will be rendered in each case against the petitioner for costs.
All the Justices concurring. | [
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Opinion by
Strang, C.:
John F. Carter, one of the defendants in error, began this action in the court below, April 12,1888, to recover a judgment against F. M. Coffey for lumber and building material amounting to $457, sold by the former to the latter, for the erection of a dwelling upon lots 33, 34, 35, and 36, block 21, Santa Fé addition to the city of Florence, Marion county, Kansas, and to foreclose a lien for material thereon. The other defendants in error were made defendants in the court below because of some interest claimed by them in the premises, and each of said defendants filed a cross-petition asking for affirmative relief in the form of a judgment and foreclosure of lien. F. M. Coffey, defendant below, made default, and the court, when the case came up for hearing, entered judgment for Carter on his petition, and foreclosed his lien on the lots described. The other defendants were given judgments on their cross-petitions, and each had his lien for material or labor foreclosed. All these judgments were entered May 28, 1888. November 19, 1888, the plaintiff in error went into the district court and filed a motion to vacate all the judgments in the case, which motion was sustained as to the judgment of the Badger Lumber Company for $54.19, and overruled as to the other judgments. Coffey brings the case here, alleging that the other judgments should have been vacated, and points out several reasons why the ruling of the district court on the motion to vacate should be reversed. Without examining the alleged errors pointed out by the plaintiff in error, we think there are several reasons why he cannot insist upon a reversal of this case. Firs.t, before the suit was begun in the court below, Coffey, the defendant therein and plaintiff in error, had sold and conveyed by a quitclaim deed all his interest in the premises described in the petition to one Richard Wilson, who had assumed the payment of the liens thereon. It follows, then, that when his motion was filed Coffey had no interest in the controversy, and, therefore, no standing in court, and could not be heard to complain about a matter in which he had no interest. Besides, he had allowed judgment to go against him by default, after personal service, and had waited nearly six months, and until the property had been sold by the sheriff' on an order of sale growing out of the judgment and foreclosure of the liens thereon, before he went into court to attack the proceedings by his motion to vacate. This was inexcusable delay in asserting his rights, if he had any, in the premises. He should have defended against the judgments of foreclosure, if he had any defense, or moved their vacation soon after their rendition, and not have waited until after a sale of the premises had been had thereon. Suppose the proceedings upon which the judgments were had were irregular: it would avail nothing to set them aside, after the premises had been sold at sheriff’s sale.
Again, the plaintiff in error made no showing of any defense to the actions on which the judgments were rendered, in-connection with his motion to vacate said judgments. A mere allegation in the affidavit in support of his motion that he had a defense is not sufficient.. The facts constituting the defense must be stated, so that the court may adjudge whether or not a defense exists. Having made no showing of any de fense to the action in which the judgments were rendered, the plaintiff in error failed to put himself in a position to entitle him to a vacation of the judgments, even if subject to such a motion as made by him, and hence it was not error for the trial court to overrule such motion. (Gen. Stat. of 1889, ¶4673.) “A judgment shall not be vacated on motion or petition until it is adjudged that there is a defense to the action on which the judgment is rendered.” (Anderson v. Beebe, 22 Kas. 768.)
For the reasons given above, and without examining further the errors complained of, 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
Horton, C. J.:
This action was brought by T. J. Hadley and C. M. McEntire, as assignees of Mrs*. M. A. Bowen, to recover the sum of $500, alleged to have been deposited with Hogue, Burch & Miller, real-estate agents, by Thomas Durham, as part purchase-money for certain real estate alleged to have been purchased by Durham from Mrs. M. A. Bowen, through Hogue, Burch & Miller, as her agents. Afterward, by order of the court, Thomas Durham was made a party defendant, and filed his answer claiming the money. Hogue, Burch & Miller answered, admitting the payment of the money to them as agents of Mrs. Bowen, disclaiming all right thereto, and brought it into court to be paid to the party entitled thereto.
Trial was had by the court, without a jury, and, at the request of Durham, the court made special findings of fact and conclusions of law. Judgment was afterward rendered in favor of Hadley and McEntire, and against Hogue, Burch & Miller for the recovery of the money, and against Durham for the costs of suit. Durham excepted, and brings the case here.
It appears from the record that $400 in cash and a note of $100 were deposited, on March 30, 1887, by Thomas Durham with Hogue, Burch & Miller, agents of Mrs. M. A. Bowen, on a contract for the sale of land, which contract was never consummated. On February 13, 1888, the day before this action was brought, Mrs. M. A. Bowen assigned her claim to the $500, in writing, to Hadley and McEntire. After the written contract of the 30th of March, 1887, the evidence shows that Mrs. M. A. Bowen remained in possession of the land. After the contract was delivered, T. J. Hadley, the son-in-law of Mrs. M. A. Bowen, furnished an abstract of title of the land to Thomas F. Durham, the agent of Thomas Durham. As soon as the abstract was furnished and examined, Durham objected to the title, and paid nothing further upon the contract. Mrs. Bowen deposited a deed of the land with Hogue, Burch & Miller, and then demanded the money stipulated in the contract, and, when it was not paid over, she claimed the $500 as a forfeit or penalty. In 1860, Charles H. Thompson was the owner of the land by a patent from the government. On the 3d of March, 1859, he conveyed the land by warranty deed to Simeon F. Hill. On the 11th day of May, 1859, Simeon F. Hill and wife executed a mortgage on the land to Charles H. Thompson to secure $834, payable February 10, 1860. This mortgage was duly recorded in the office of the register of deeds of Johnson county on May 23, 1859. No assignment of the mortgage appears of record, and no release thereof appears on the margin of the record. On May 30, 1862, Benjamin M. Jewett and Matilda Jewett filed a release and quitclaim deed, reciting that Simeon F. Hill had paid to them the mortgage executed to Thompson. It was decided in O’Neill v. Douthitt, 40 Kas. 689, that —
“ Where an abstract of title shows that a mortgage on the land has been recorded, it is then necessary, in order that the abstract shall show a good and complete title, that it shall also show that the mortgage was not only re]easec[ an(j discharged of record, but also that the person releasing or discharging the same had full and complete authority of record to do so.”
There is nothing in the office of the register of deeds of Johnson county showing, or tending to show, that Benjamin F. Jewett and wife had any authority to release or discharge this mortgage. The title of the property described in the contract executed by Mrs. Bowen and Thomas Durham was clouded or affected by the real-estate mortgage when the contract was executed, and the cloud had not been removed when Mrs. Bowen tendered her deed. It is said in O’Neill v. Douthitt, supra, that—
“ The general policy of the law in this state is to require, as far as practicable, every interest in real estate to be evidenced, not only by writing, but also by some public record of the county in which the real estate is situated. (See statutes of frauds and perjuries, §§ 5 and 6; statutes relating to trusts and powers, § 1; registry laws; acts relating to conveyances, to mortgages, to the records of courts, to mechanics’ liens, to other liens, and to taxes.) Under our statutes and in law, as contradistinguished from equity, everything affecting real estate must be in writing, (see statutes above cited,) and every instrument in writing affecting real estate may be recorded, (conveyance-act, § 19,) and, to be considered as valid as against persons without actual notice, it must be recorded. (Conveyance Act, § 21.) Now the release or discharge of a real-estate mortgage certainly affects real estate, or, to speak more accurately, it affects the title thereto or some interest therein. Hence, a valid release of a real-estate mortgage should not only be shown by a valid writing, but it should also be shown by a valid record. Such has always been the view taken by this court. (Burhans v. Hutcheson, 25 Kas. 625; Lewis v. Kirk, 28 id. 497; Perkins v. Matteson, 40 id. 165; same case, 19 Pac. Rep. 633.)”
The question therefore arises., whether, upon the conclusions of fact, Thomas Durham was compelled to perform his contract of the 30th of March, 1887, and, if he did not do so, whether the $500 deposited by him can be treated as a forfeit or penalty. The trial court found that Mrs. Bowen had fully complied with all of the conditions of the contract upon her part, and that she was the owner of the land in controversy, free and clear of all incumbrances. But, notwithstanding this fact, it appears from the records that the title to the land is doubt ful, or at least clouded, on account of the non-release upon record of the mortgage of $834, with interest. Mrs. Bowen agreed in her written contract that she would “convey and assure to Thomas Durham the 32 acres of land described therein in fee-simple, clear of all incumbrances whatsoever, by a good and sufficient warranty deed.” Under the contract, Durham was entitled, as the purchaser of the land, not only to a good title, but to a marketable title. In every contract for the sale of land there is always an implied warranty by J L J J the vendor that he has good title, unless such warranty be expressly excluded by the terms of the contract. The implied warranty exists so long as the contract remains executory, i. e., until the deed is given, when the party must rely on the covenants in the deed, unless there has been fraud, in which case relief may be afforded in equity.
It is undoubtedly true that, where an incumbrance is discovered upon land, the vendor must discharge it before he or she can compel the payment of the purchase-money by the vendee at law or in equity. In this case, it is claimed that no incumbrance existed, because the mortgage had been paid; but the records in the office of the register of deeds show no release and no payment to any party having authority to release or accept payment. If Mrs. Bowen had commenced an action for specific performance of the contract against Durham, she could not have succeeded, because it is the rule that, in actions by a vendor,, the parties will not be forced to complete the contract unless the title is free from any reasonable doubt. Again, a specific performance will never be decreed at the action of the vendor, whenever the doubt concerning his title is one which can only be settled by further litigation. A vendee “will not be compelled to buy a lawsuit.” (Pom. Contr. §§ 198-208.) ' •
In this case, under the decision of this court in O’Neill v. Douthitt, although Mrs. Bowen may have had title to the land free from any incumbrance, neither the abstract of title nor the county records so showed, and as Durham not only wanted a good title, but a good, marketable title, one which appeared from the records of the county to be good and free from all incumbrances. he could not be comnelled to accept the deed of which he had notice, or be compelled to pay bhe money upon the contract, and then permit Mrs. Bowen to settle her title by litigation in the future, or be compelled to quiet his title by future litigation. Mrs. Bowen ought, before she made her contract, or offered her deed, or at least before this action was brought, to have had Charles H. Thompson release on the record the mortgage of $834 and all interest, if it is paid, or she ought to have had the written assignment of the mortgage to Benj. F. Jewett recorded, if Jewett was ever the legal owner thereof. She did none of these things, and none of these things have yet been done. The title is clouded with an apparent incumbrance, and the land, whether bought by Durham for speculation or for other purposes, is in no condition to be sold, as the seeming ineumbrance, not legally released, must affect the value thereof and interfere with the sale of the land to a reasonable purchaser. It is said, however, that Mrs. Bowen never agreed to furnish any abstract, and therefore that this case differs from the O'Neill-Douthitt case. It is immaterial whether there was any agreement to furnish an abstract or not. The cost of the abstract is not in controversy. The abstract was furnished, and whether Durham ascertained from the abstract, or from the records in the office of the register of deeds, that the title of the land was clouded by an apparent incumbrance, is of no concern. The facts ai~e, that Durham could not and cannot obtain a good marketable title. He cannot be compelled to accept any other title. The quitclaim deed of Durham of the 15th of November, 1887, is of no importance. If he had no title or interest in the land, the quitelaim deed transferred nothing.
Upon the facts, we do not think that the money deposited with Hogue, Burch & Miller can be claimed as a forfeit or penalty; therefore the judgment must be reversed, and the cause remanded, with direction to the trial court to enter judgment upon the findings of fact in favor of Thomas Durham, and against Hadley and McEntire, the plaintiffs below.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 7th day of September, 1887, the plaintiff in error commenced its action in the district court of Cloud county, alleging in its petition the following material facts: On the 10th day of December, 1885, one George H. Wells and wife executed to one R. F. Hermon a promissory note for $375, securing payment of the same by a mortgage on the northwest quarter of section 23, town 7, range 1 west of the sixth principal meridian. Hermon sold and transferred the note and assigned the mortgage to the plaintiff in error on the 30th day of November, 1886. On the 5th day of November, 1886, George H. Wells and wife sold and conveyed said mortgaged tract of land to John F. Randolph, who assumed and agreed to pay the mortgage given by Wells and wife to Hermon and assigned to plaintiff in error. On the 6th day of November, 1886, Randolph and wife conveyed the land by warranty deed to one W. J. Nye. On the 8th day of November, 1886, Nye and wife executed and delivered to the plaintiff in error two promissory notes amounting to $727.60, and to secure the payment of the same they gave the plaintiff in error a mortgage on the same land. This tract of land was subject to two prior mortgages in favor of the New England Loan and Trust Company, executed by Wells and wife, for $1,650 and interest, that are conceded to be the first liens. Wells and wife, Nye and wife, Randolph and other lien holders were made parties, and all served personally or by publication. All made default, and the cause came on regularly for trial at the October term, 1887, of the court. The court found that all of the defendants had been duly served with a summons in this action; that there was due from the defendants Wells and wife the sum of $462.25, with interest at 12 per cent, per annum; that the defendant John F. Randolph is liable for the payment of this sum by reason of having assumed payment of it in a warranty deed executed by Wells and wife and accepted by him; that there was due from Nye the sum of $779.94, with interest at 7 per cent, per annum; that the mortgaged premises mentioned in plaintiff’s petition is subject first to two mortgages amounting to $1,650; that the taxes for 1886, assessed upon said land, have not been paid. Judgment was rendered for the sums against Wells and wife and Nye, and the mortgaged property ordered sold, subject to the first lien of $1,650, and the proceeds of the sale applied, first, to the payment of the costs; second, to the payment of the taxes due; third, to the payment of the plaintiff’s judgment against Nyel fourth, to the payment of the plaintiff’s judgment against Wells and Randolph. This judgment was rendered on the 18th day of November, 1887. On the 6th day of July, 1888, Randolph filed a written motion praying the court to modify the judgment so that the judgment against Wells and Randolph shall stand as a judgment against Wells alone, and not as a judgment against Randolph for any sum whatever, and to so modify -the order for the distribution of the proceeds of the sale that, after the payment of the costs and taxes, the proceeds be next applied to the payment of the judgment against Wells for $462.25, with interest, and after that to the payment of the judgment against Nye; and for cause states that the judgment was irregularly obtained, and is not supported by the allegations of the petition. This motion was sustained by the court, and the judgment was so modified, and this is the ruling complained of by the plaintiff in error, and is the only question presented by the record.
The petition alleges that Wells and wife conveyed the land, after they had executed the mortgage to Hermon, to John F. Randolph, .and that by the acceptance of that conveyance he assumed and agreed to pay the mortgage to Hermon. The petition also alleges that Randolph and wife conveyed the mortgaged land to Nye by warranty deed, and hence Randolph is obligated to pay the Hermon mortgage, both by his assumption in the deed of Wells and his warranty in the deed to Nye, and this personal obligation ought to be enforced against him by judgment and execution for the protection of Wells, as well as for the protection of Nye. The reason given by the trial court for the modification of the original judgment is, that it was not supported by the allegations of the petition, and while this is true as to the payment of the plaintiff’s judgment against Nye, making that payable after the costs and taxes are paid, and before the judgment against Wells is paid, it is not true as to Randolph. The petition does contain positive averments of the assumption by Randolph of the Hermon mortgage, and of his conveyance of the mortgaged land to Nye, a subsequent mortgagor, by warranty deed.
We think that the personal judgment against Randolph in the original entry was right, and if it can be collected by execution, the amount so collected from Randolph personally should be applied to the satisfaction of the mortgage executed by Wells and wife to Hermon. In all other respects the judgment as modified is 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 was an action brought in the district court of Trego county by the Woodson Machine Company, a corporation, against H. F. Morse, to recover on two promissory notes, each for $550, each dated August 2,1884, one due November 1, 1885, and the other due November 1, 1886, upon the first of which a payment was indorsed of $139. The defendant answered, admitting the execution of the notes, calling them mortgage notes, (and there were stipulations in them which would probably authorize such a designation,) and alleging that the plaintiff had taken the possession of the mortgaged property, (which was personal property,) of the value of $1,500, and had converted the same to its own use; and that a credit therefor of only $139 had been given to him; and asking that so much of the value of the property as might be necessary to discharge the notes should be applied to that purpose, and that he should have judgment for the remainder. The plaintiff replied, denying all the allegations of the defendant’s answer except such as were admitted in the plaintiff’s petition and reply, and alleging that a chattel mortgage had in fact been given by the defendant upon the aforesaid property to secure the aforesaid notes, and that the plaintiff did take the property into its possession, and sold the same in accordance with the provisions of the chattel mortgage, and realized therefrom $200, less expenses; or in other words, that it realized only $139 over and above expenses. The chattel mortgage was set out in full and made a part of the plaintiff’s reply. Upon these pleadings, a trial was had before the court and a jury, and the jury found in favor of the defendant and against the plaintiff, and assessed the amount of the defendant’s recovery at $25, and also made special findings of fact; and Upon such verdict and findings the court below rendered judgment in favor of the defendant and against the plaintiff for the amount of the verdict; and the plaintiff, as plaintiff in-error, brings the case to this court for review.
The plaintiff in error has alleged numerous errors, but we think it will be necessary to consider only a very few of them; and we shall consider only a few of them for the reason, among others, that the defendant in error has not filed any brief nor made any appearance in this court, and therefore has not given any explanation of any of the alleged errors. Among the alleged errors complained of are the following: (1) That the defendant was permitted, over the plaintiff’s objections, to testify concerning a conversation had between himself, the defendant, and one T. W. Rogers, after this action was commenced, and concerning matters material to the controversy; (2) that the court erroneously instructed the jury orally after it had been properly requested to instruct the jury in writing; (3) that the court in giving instructions to the jury misconstrued the chattel mortgage, and for that reason gave erroneous instructions; (4) that the court erroneously took some matters from the jury which ought to have been left with the jury to decide; (5) that the court erroneously instructed the jury in substance that the burden of proof rested upon the plaintiff, its language being: “Gentlemen, the plaintiff in this case must prove their case by a preponderance of the testimony,” etc.
We are inclined to think that the court below erred in all the foregoing particulars, but we shall further consider only the last. The plaintiff’s entire case was admitted by the pleadings in connection with § 108 of the civil code. Under the pleadings and that section, it was admitted by the defendant that the plaintiff was a duly-existing corporation; that the notes sued on had been fully executed, and that the chattel mortgage set forth in the plaintiff’s reply had also been duly executed; and nothing materially adverse and scarcely anything of a material character set up in the defendant’s answer was admitted by the plaintiff. It was not admitted that the property taken by the plaintiff under the chattel mortgage was of the value of more than $200, and it was not admitted that any wrong of any kind had been done by the plaintiff; hence the plaintiff, in the first instance, was not called upon to prove anything, but, on the contrary, the burden of proof rested upon the defendant; and if the defendant had failed to introduce any testimony, the verdict and judgment should unquestionably have been for the plaintiff for the amount claimed in its petition. The aforesaid instruction was therefore erroneous, and in our opinion materially so; and for this and other reasons the judgment of the court below will be reversed, and cause remanded for purther proceedings.
All the Justices concurring. | [
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Opinion by
Green, C.:
Samuel J. Smith sued William Cackley in the district court of Rice county upon a promissory note for $1,254.90, executed on the 1st day of January, 1884, and due in 12 months after date, with interest at 8 per cent, per annum. The defendant alleged that this note had been merged into a judgment rendered in the court of common pleas of Jackson county, Ohio, in an action brought by the Centerville National Bank, of that county. This bank brought an action against William Cackley and Sarah E. Spriggs, to-have a certain conveyance of some real estate made by Cackley to Spriggs set aside. The plaintiff in that case had previously obtained a personal judgment, and asked that the conveyance be declared fraudulent as to the creditors of Cackley, that the property be administered for the benefit of the plaintiff and all other creditors who might come in and be entitled to share in the proceeds according to. their respective claims and priorities. Summons was served upon the defendants, and notice was given by publication to the creditors of Cackley. The plaintiff below was one of the creditors, and he filed a cross-petition, setting forth the note sued on in this action, and asked to be made a party, and that the lands described in the petition of the Centerville National Bank be sold and administered for the benefit of all of the creditors of Cackley, that an account be taken of the amount due him on his note, and that he be paid out of the proceeds of the sale of the property according; to priority. The action of the bank was successful; the conveyance was set aside. A certain deed of assignment made-by Cackley was also set aside and a trustee was appointed by- the court, who was authorized to sell the property that had been fraudulently disposed of, and pay the creditors of Caekley according to priority. The trustee, acting under the orders of the court, sold the property, and the court found the amount due and owing the various creditors, and directed the payment of the costs and attorney’s fees first, and then the payment of certain creditors in full, which left the claim of Smith unpaid. Upon this state of facts, the plaintiff asked and obtained a judgment upon the pleadings for the amount due upon his note, in the district court of Rice county.
The only question presented by the record is, whether this was error. Was the note sued upon merged in the proceedings in the common pleas court of Jackson county, Ohio? We are obliged to answer this question in the negative. To make the merger complete, so as to be a bar to any future action upon the same obligation, there must necessarily be a judgment; and such a judgment, too, as can be enforced. Can it be said fin this case that the plaintiff below obtained such an order in the common pleas court of Jackson county, Ohio, as he could make available in the collection of his debt after the property subjected to the payment of certain creditors of Cackley had been exhausted? or, in other words, could he have brought suit upon the proceedings had in that court and obtained any relief? There was only a finding of the amount due each one of the creditors; and in the same finding of the court there was an order directing the payment of the proceeds to other creditors, which left the plaintiff below in the same condition as when he filed his answer. He had obtained nothing upon his note, and had no order, decree or judgment which he could enforce. The supreme court of Ohio seemed to have taken this view of a similar order in the case of Conn v. Rhodes, 26 Ohio St. 645, which was an action to foreclose a mortgage, with a prayer for a personal judgment. Upon default of an answer, the court entered a decree for the sale of the mortgaged premises, but rendered no personal judgment. The court said:
“Where the record in such case showed that the court, on hearing of the cause, ‘ considered that the plaintiff ought to recover’ a specified amount, and ordered the sale of the mortgaged premises for its satisfaction, held, that the record shows no personal judgment against the defendant, but a mere finding of the amount due, with an order of sale.”
Judge Cooley said, in the case of Wixom v. Stephens, 17 Mich. 518: “If, by reason of the mistake, the judgment rendered by the justice was not valid, so that the plaintiff could enforce it, then it would seem that it could not constitute a bar to a new suit on the note. The bar in such case springs from the party having already obtained a higher security; and where he has got no new security, his remedy upon the original demand is not taken away.” The law of the case was stated in the syllabus, that “a debt is not merged in a judgment until a valid judgment has been obtained upon it.”
The supreme court of Nebraska has held that the presentation and proof of a creditor’s claim in Illinois against an assigned estate there is not a bar to such creditor’s right of action in the former state, there being nothing in the statute of Illinois or in the deed of assignment restricting creditors to their respective demands, or suspending any other remedy previously opened to them. (Gross v. Bunn, 10 Neb. 217.)
The law of merger is thus stated in Black on Judgments, §674:
“But in order that the principle of merger may apply, it is necessary that the identical cause of action should have passed into judgment, in a litigation between the same parties or their privies, and that the plaintiff should have had a full and complete opportunity to recover his whole demand. In a case in Arkansas, it was held that a judgment against a steamboat— that being a judgment in rem and not enforceable against the property of the owners — if unsatisfied, could not be pleaded as a bar to a subsequent action against the owners of the boat on the same contract. In reaching this conclusion, the court said it was evident that a judgment against the vessel was not even substantially a judgment against the owners, and consequently that the former recovery relied on was no bar to the present action.” (Toby v. Brown, 11 Ark. 308; Freeman, Judgm., § 606.)
If the action in the Ohio court is to be treated as a proceeding quasi in rem, clearly the note of the plaintiff below was not merged in the orders made by the court in that case. Text-writers and courts make a distinction between actions im rem and proceedings quasi in rem, and the latter term is applied to suits brought against persons where the plaintiff’s object is to subject certain property of those persons to the payment of the claims asserted.
“Such are actions in which property of nón-residents is attached and held for the discharge of debts due by them to citizens of the state, and actions for the enforcement of mortgage and other liens. Indeed, all proceedings having for their sole object the sale or other disposition of the property of the defendant to satisfy the demand of the plaintiff are in a general way thus designated.” (Freeman v. Alderson, 119 U. S. 187; Black, Judgm., § 793.)
The action of the Centerville National Bank, in the Ohio court, comes unmistakably within this class of cases. Such a proceeding of a domestic as well as a foreign court, where jurisdiction over the person of a party has not been obtained, except as to his interest in the property affected by such proceedings, is not conclusive or binding by way of estoppel in another action. (Durant v. Abendroth, 97 N. Y. 132; Freeman, Judgm., § 606.)
The same doctrine is stated in Res Adjudicata (Wells), § 555:
“As to actions im rem, we may here state in general terms that there can be no rightful action by the tribunal on the basis of jurisdiction acquired by the attachment of property that can reach beyond the property itself, and of course it cannot be enforced in another state.”
It necessarily follows from this view of the law that the district court committed no error in sustaining the demurrer of the plaintiff below to the answer of William Cackley.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam:
The facts being the same in the case of William Cackley v. David S. Parry et al. as in Cackley v. Smith, just decided, this case is affirmed, upon the authority of that case. | [
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Opinion by
Green, C.:
This was a criminal prosecution, under §31 of the crimes act. The defendant was charged with carnally knowing Sallie Eberline, alias Sallie Fahner, a female child under the age of eighteen years. He was convicted in the district court of Johnson county at the January term, 1891, and sentenced to the penitentiary for a term of six years. He appeals from that judgment and sentence to this court, and the following errors are assigned: First, it is claimed by the appellant that there was a conspiracy formed to send him to the penitentiary, and that this fact could have been established to the satisfaction of the jury, had the court below permitted the evidence to go to the jury. Second, that it was competent for the defendant to show the general reputation of the prosecutrix for virtue and chastity, but that the court refused to permit such evidence to go to the jury, even for the purpose of affecting the weight of her evidence. Third, that the court erred in refusing the fourth, fifth and sixth instructions requested by the appellant. These errors we shall consider in their order.
I. There was no evidence upon the part of the state tending to show any conspiracy. Upon cross-examination of the prosecutrix, she was asked if she had not talked with a man by the name of Snell about this case, and the state interposed an objection, which was sustained by the court, and this is assigned as error. This evidence was immaterial. The witness denied that there had been any effort upon the part of her mother, Snell or herself to injure the defendant; and any conversation she may have had with Snell about the case was irrelevant. Snell was not a witness, and if the defendant had desired to establish some foundation for a conspiracy, he should have asked more specific questions.
II. It is insisted that it was competent for the defendant to prove the general reputation pf the prosecutrix for chastity and virtue, not as a justification or an excuse for the crime, but for the purpose of affecting her evidence. We do not so understand the rule. While evidence of a witness’s bad character for veracity is admissible, the inquiry in such a case as this must be confined to the witness’s character for truth and veracity. (Taylor v. Clendening, 4 Kas. 525; 3 Am. & Eng. Encyc. of Law, 117, and authorities there cited.)
III. We have examined the instructions given by the court, and also those refused, and also the observations of counsel concerning them. The fourth instruction asked and refused was covered by the fourth paragraph of the general charge of the court. The fifth instruction requested by the defendant did not state the rule correctly. It was not necessary for the state to prove force under § 31 of the crimes act, and the fact that the prosecutrix claimed that force was used was wholly immaterial. The refusal of the court to give the sixth instruction asked for was no ground for error. The court had told the jury, in the second paragraph of its charge, that carnally and unlawfully knowing a female under the age of 18 years constituted the crime with which the defendant was' charged. The prosecutrix had testified that the defendant had had sexual intercourse with her. The language of the court and the statements of the prosecutrix could not have been misunderstood. The words used have a well-defined and understood meaning, and there could be no question but that the jury understood what was meant.
We 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
Valentine, J.:
This was an ordinary action of replevin, brought in the district court of Rooks county by Oliver Humes against R. W. Swan and J. F. Mullaney, to recover certain live stock. The defendants answered separately, each filing a general denial, the same attorney appearing for both. A trial was had before the court without a jury, and the defendants demanded that a separate judgment should be rendered as to each of the defendants; but the court, finding upon the evidence in favor of the plaintiff and against the defendants, rendered a joint judgment against them in the alternative for a return of the property or for its value and for costs; and the defendants bring the case to this court for review. They allege in this court that the court below erred: (1) In rendering judgment for the plaintiff upon the evidence; (2) In not rendering a separate judgment as to each of the defendants; (3) in its findings as to the value of the property; (4) and in overruling the defendants’ motion for a new trial.
The decision of every question presented to this court by the defendants below, plaintiffs in error, depends upon a consideration of the evidence introduced upon the trial in the court below, and yet it cannot be said that we have such evidence before us in any such form that we can consider the same. The case is brought to this court upon a case-made for the supreme court. This case-made contains the following statements :
“The foregoing contains a true and correct statement of all the pleadings, motions, orders, evidence, findings and proceedings upon which judgment was rendered.
“I, C. W. Smith, the undersigned attorney for the plaintiff in the foregoing suit, certify that the foregoing case-made was duly served on me, this 25th day of January, 1889.
C. W. Smith, Attorney for Oliver Humes, Plaintiff.”
“State on Kansas, Rooks County, ss. — This is to certify, that the foregoing above case-made and the amendments thereto have been duly served in due time, and the amendments thereto duly suggested and the same duly submitted for settlement and signing as required by law, by the parties to said cause; that the same, as above set forth, is true and correct, and contains a true and correct statement of all the pleadings, motions, orders, evidence, findings, proceedings and judgments had in such cause; and I hereby settle, allow, certify and sign the same as true and correct, and hereby order that the clerk of the district court attest the same with the name and seal of said court, and file the same of record as provided by law.
“Witness my Hand, At Norton, Kansas, this 29th day of March, 1889. Louis K. Pratt,
Judge of District Court.
“Attest: Geo. O. Farr,
[seal.] Clerk of Dist. Court, Rooks Co., Kansas.”
No evidence appears in the case-made preceding these statements, but after these statements and after the attestation of the case-made by the clerk of the district court, is a paper attached containing about 40 pages of what purports to be the evidence introduced on the trial in the district court, which evidence is certified to by M. D. Barstow, the official stenographer of the district court, as follows:
“State of Kansas, Norton County, ss. — I hereby certify that the foregoing is a true and correct transcript of the short-hand notes taken by me of all the evidence produced on the trial of the above-entitled cause, and the same is correct, . to the best of my knowledge and belief.
M. I). Barstow,
Official Stenographer of the 17th Judicial District of Kansas.”
There is nothing anywhere else to be found to identify this evidence, and without it we cannot review any of the alleged errors. It is certainly no part of the case-made.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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' The opinion of the court was delivered by
Valentine, J.:
This was an action of mandamus brought originally in this court on June 11, 1891, by John H. Lawson against G. M. Zimmerman, W. P. D. Flemming, and William Potter, the board of county commissioners, and S. J. Morris, the county clerk,' and J. M. Anderson, the county treasurer, of Eeno county, to compel the defendants to recognize the plaintiff as the county auditor of Eeno county. The General Statutes of 1889 contain an article, No. 13, divided into paragraphs or sections numbered from 1840 to 1859, under which the plaintiff claims that he is and has been since April 30, 1890, the duly-appointed and qualified county auditor of Eeno county. In March, 1891, the following act of the legislature, being chapter 87 of the Laws of 1891, was passed, approved, and published, as follows:
“Section 1. That section 1840 of the General Statutes of Kansas of 1889 be amended so as to read as follows: Section 1840. That in all counties containing over 45,000 inhabitants there shall be appointed by the district court of the judicial district in which such county is located, one person, who shall have the qualifications of an elector, and who shall be styled county auditor, and who shall hold- his office for the period of two years, unless sooner removed by the appointing power, for cause, according to existing laws, and if so removed, the cause thereof shall be made part of the record of the board of county commissioners: Provided, That for the purposes of this act, Leavenworth county shall be deemed to have over 45,-000 inhabitants, and the office of county auditor is retained in that county.
“ Sec. 2. Section 1840 of the General Statutes of 1889 be and the same is hereby repealed.
“Sec. 3. This act shall take effect and be in force from and after its publication in the official state paper.
“Approved March 10, 1891.
“Published in the official state paper March 20, 1891.”
The original section (1840) was the same as the new section (1840) except as follows: In the original section the words “twenty-five” occurred where the words “forty-five” occur in the new section; the word “embraced” occurred in the old section where the word “located” occurs in the new, and the original section did not contain the proviso appended to the new. It is admitted that Reno county contains 25,000 inhabitants, but that it does not contain 45,000 inhabitants. It is claimed by the defendants that, admitting for the purposes of this case that the plaintiff would be county auditor of Reno county except for said chapter 87 of the Laws of 1891, still that in that case said chapter 87 abolished the office of county auditor in Reno county, and in all other counties of less than 45,000 inhabitants, except in Leavenworth county, and that as the office itself is abolished no one could fill the same; while the plaintiff claims that, under the general saving clause contained in ¶6687 of the General Statutes of 1889, he will retain the office for two years from the time when he first took the same, or up to April 30, 1892. Said saving clause reads as follows:
“ The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
The most of the decisions of this court construing this saving clause will be found cited in the case of In re Tillery, 43 Kas. 188, 191. We do not think that this saving clause has the effect to continue the plaintiff in office. He has no vested right in the office or in anything pertaining thereto; (Harvey v. Comm’rs of Rush Co., 33 Kas. 159; In re Hinkle, 31 id. 712;) and the statute passed in 1891 clearly shows that the legislature intended to abolish the office at once. It provided that the act of 1891 (and this means the whole of the act) should take effect and be in force from and after its publication in the official state paper, and provided that §1840 of the General Statutes of 1889, the section under which the plaintiff claims his office, should be repealed; and the repeal seems to be absolute and to take effect at once; and by the proviso the legislature declared that in Leavenworth county the office of county auditor should be “retained,” indicating by the strongest of implications that it was the intention of the legislature that in every other county with less than 45,000 inhabitants the office of county auditor should be immediately abolished. This seems to be clear beyond all question.
The writ of mandamus prayed for in the present case will be denied, and judgment will be rendered in favor of the defendants and against the plaintiff for costs.
All the Justices concurring. | [
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Opinion by
Green, C.:
This is an original proceeding in mandamus, brought by the county attorney, to compel the county officers named, of Cheyenne county, to remove their respective offices from St. Francis to Bird City, and to compel them to hold their offices at Bird City, as the permanent county seat of Cheyenne county. The alternative writ was allowed on the 2d day of February, 1891, and served on the defendants on the 7th. The cause was submitted upon the facts stated in the alternative writ and answer. The facts material to the issue, as claimed by the plaintiff, are substantially as follows:
Cheyenne county was organized April 1, 1886, and Bird City was designated as the temporary county seat. An election was held on the 15th day of May, 1886, and Bird City received a majority of the votes cast for the permanent county seat. The county officers held their respective offices at Bird City until about the 1st day of March, 1889, when they removed their offices to St. Francis. The answer of the respondents was a justification of such removal and continuance of the county seat at St. Francis, upon three grounds: First, that the election on the 15th day of May, 1886, had been adjudged to be null and void; second, that there had been a subsequent election held in the county, on the 26th day of February, 1889, at which St. Francis received a majority of all the votes cast for the permanent county seat; and, third, that by an act of the legislature, approved February 5,1891, St. Francis was declared to be the permanent county seat.
I. The plea of res adjudieata is stated in the answer to the alternative writ, as follows:
“That the election in Cheyenne county on the 15th day of May, 1886, so far as the location of the county seat was and is concerned, was duly and finally determined and adjudged against the relator, the state of Kansas, and all persons whomsoever, by the consideration and decree of the district court of Cheyenne county, in a certain proceeding duly commenced, pending and had in said court, wherein the state of Kansas, on the relation of Thomas J. McCarty and R. M. Jacques, citizens, electors and tax-payers of the town of Wano, were plaintiffs, and Edwin M. Phillips, clerk of district court of Cheyenne county, was defendant, in the nature of mandamus to compel said Edwin M. Phillips, as such clerk, to remove his office from the town of Bird City, where he was unlawfully keeping his office, and to keep the same at the town of Wano, now St. Francis, which said last-named place the relators alleged to be the county seat of said county, and in which the said relators sought to, and did, contest the pretended election held May 15,1886, and the result thereof as declared by the board of county commissioners of said county, upon which election and result relator herein relies in this action and proceeding. It was duly and finally adjudged by said court, that said pretended election was null and void, and. that no town was and had been chosen as permanent county seat of said county at said election.”
The plea cannot be sustained in this case, which is brought upon the relation of the county attorney. The state is not bound by a suit prosecuted by a private party, in an' action of this kind. (The State ex rel. v. Stock, 38 Kas. 154.)
II. The second plea of justification may be briefly stated :
“That afterward, on January 19, 1889, upon a petition of a sufficient number of the electors of said county whose names appeared on the last'assessment rolls of the township assessors of the county, filed with the county clerk of said county, the board of county commissioners, acting on said petition, called an election to be held February 26, 1889, for the purpose of permanently locating the county seat of said county; that notice of said election was duly published by the county clerk on January 24, 1889, and weekly thereafter, in a newspaper published and of general circulation in said county; that notice of said election was also duly published by the sheriff of said county on January 31, and weekly thereafter until said election, in a newspaper published and of general circulation in the county; that afterward, on January 28,1889, the board of county commissioners duly appointed certain persons to fill vacancies existing in the board of registrars for the several voting precincts in said county; that registration of the voters in the manner provided by law, by the persons authorized by law to act as judges of election in the several election precincts in said county, was had, and, in pursuance of said proceedings of said board of county commissioners and said notice of said election, an election was held in said Cheyenne county, on February 26, 1889, for the purpose of permanently locating the county seat of said county; and at said election, and by the result thereof as canvassed, the city of St. Francis received a majority of all the legal votes cast at said election, as was duly declared by the board of county commissioners sitting as a board of canvassers of the election returns of said election in said county.”
We think this plea is bad. Taken in connection with the first, it appears that the state was not bound by the judgment of the court which declared the first election void; hence, it is not clear that there was any authority for calling the second election. The judgment and decree of the district court of Cheyenne county, upon the relation of two citizens, against the clerk of the district court, was not sufficient ground for ordering another election. The first election must be set aside by some competent authority by which the state is bound, before another election could be ordered; and the subsequent election, having been held within five years, was unauthorized.
“No election for the relocation of such county seat shall be ordered or had within five years from the time of the holding of the last preceding election, touching the location or relocation of such county seat.” (Gen. Stat. of 1889, ¶1897.)
III. The following act of the legislature is set up as the third plea of justification:
“An Act to legalize a certain election in Cheyenne county, and to declare the town of St. Francis the permanent county seat of said county.
“Whereas, On the 26th of February, 1889, there was held in the county of Cheyenne an election for permanently locating the county seat of said county, at which election the town of St. Francis received a of 292 and
“Whereas, The county of Cheyenne now owns in said town of St. Francis a block of land of the value of $4,000, and county buildings thereon of the value of $3,000; and
by companies that said election was illegal, and there is likely to arise in said county a contest over the permanent county seat thereof, to the great detriment of the people and tax-payers of said county: now, therefore,
"Be it enacted by the Legislature of the State of Kansas:
“Section 1. That the said election for the purpose of permanently locating the county seat of Cheyenne county, held February 26, 1889, be arid the same is hereby legalized, and the town of St. Francis is hereby declared to be the permanent seat of said
“Sec. 2 This act shall take effect and be in force from and after its publication in the official state paper.
“Approved February 5, 1891.
“Published in official state paper February 6, 1891.”
It is contended by the relator, that this act is void and unconstitutional, because it is in contravention of § 1, art. 9, of the constitution, which says:
“ But no county seat shall be changed without the consent of a majority of the electors of the county.”
It is argued with a great deal of force that the consent required by the constitution must be affirmatively given; that the election held on the 26th day of February, 1889, was a nullity; and, therefore, the legislature had no power to legalize such a nullity. Let us examine this proposition. The constitutional restriction placed upon the legislature is, that it cannot change the location of a county seat without the consent of a majority of the electors of the county. It is true the legislature has said that, when a county seat has been located, no other election shall be had within five years of the time of the holding of the last election. Yet it could dispense with this rule and provide for the holding of an election at any time. It is a matter peculiarly within the power of the legislature to say when and how county-seat elections shall be held. If it be within the power of the legislature to prescribe the rule for such elections, can it not by subsequent legislation legalize an election which was lacking in one of the requisites which it might have dispensed with by a previous act? The law has been stated by Judge Cooley:
“If the thing wanting or which failed to be done and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute, and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.” (Cooley, Const. Lim. [6th ed.] 457.)
This court has said that, where an irregularity rendering an act of a city or subordinate agency illegal or void is simply a failure to comply with some provision of the statute which the legislature might iu advance have dispensed with, the legislature caD, by a general curative statute, subsequently passed, dispense with such compliance, and thereby render the act of the city or subordinate agency legal and valid. (Mason v. Spencer, 35 Kas. 512.)
Again, this court has said, in speaking of county-seat elections, that a vote of a majority is not necessary, nor even the formality of an election. The consent of a majority of the electors, in whatever form expressed, whether in election or by petition, or otherwise, is sufficient.. (County Seat of Linn Co., 15 Kas. 530.) Now, the fact exists that an election was held in Cheyenne county on the 26th day of February, 1889. It may not have been authorized, but it is admitted by the pleadings that an expression was given upon the question of the location of the county seat in that county. Was not this sufficient for the legislature to consider as a consent, within the spirit of §1 of article 9 of the constitution? We need not call it an election, for that is not necessary; the consent may be expressed by petition, or in any other form. We do not know what was before the legislature, and can only resort to the preamble and the act itself to determine the object of the legislature. With this existing fact before us, of an expression having been given by the people of Cheyenne county upon the question of the location of the county seat, we cannot say that the legislature acted upon an absolute nullity. There was something expressed, which it regarded as a consent; and upon that consent based its action, by passing the law in question. The proposition may be summarized: An election was held on the 15th day of May, 1886, locating the county seat at Bird City. The people of the county subsequently expressed themselves in favor of St. Francis as the county seat, but in a manner not authorized by law at the time; but the defect in such expression was a matter which the legislature might have dispensed with in the first instance. The defect, therefore, was such an one as the legislature could and did cure by a subsequent enactment, which we are constrained to uphold.
We therefore recommend that the peremptory writ of mandamus be denied.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
Petitioner asks his release from the custody of the warden of the penitentiary, urging matters on our attention of which judicial cognizance could only have been taken if a timely appeal had been presented. Habeas corpus is not a substitute for an appeal.
We have, however, permitted this application and its accompanying documents to be filed without deposit for costs, and have read them carefully. Excusing his defective pleadings and conclusions, which are quite obvious, the record he presents makes it altogether clear that nothing is presented which would justify the issue of process requiring the warden of the penitentiary to answer this application. The documents attached show that petitioner was regularly informed against in the district court of Montgomery county on the charge of willfully and feloniously passing a no-fund check, that he was duly arraigned, pleaded not guilty, was represented by counsel, tried by a jury and found guilty, and the jury polled; and before the allocution and sentence, evidence was adduced showing that petitioner was an habitual criminal — in that he had previously been convicted on three separate occasions for distinct and separate felonies, and in consequence of the verdict and showing of his former convictions, he was duly sentenced to life imprisonment under the pertinent provision of the crimes act, G. S. 1935, 21-107a. Petitioner’s contention that the statute under which he was sentenced is invalid has been repeatedly held to be wholly untenable. (Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372, 297 U. S. 695; Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502; Glover v. Simpson, 144 Kan. 153, 58 P. 2d 73, 299 U. S. 506.)
The application is denied and this proceeding dismissed. | [
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Per Curiam:
This is an appeal from a judgment of the district court of Leavenworth county denying a writ of habeas corpus to release the petitioner from the penitentiary, where he is serving a term of life imprisonment pursuant to a judgment and sentence of the district court of Stafford county, for murder in the first degree, the details of which are chronicled at length in State v. Pyle, 143 Kan. 772, 57 P. 2d 93.
Upon full consideration, the appellant’s motion to appoint an attorney to represent him in this appeal is denied. '
Appellant’s motion to subpoena witnesses is denied, there being no issues of fact determinable by testimony of witnesses in an appealed case. Appellant’s motion to subpoena records is denied, there being no records specified, nor any showing that any such would have any pertinent bearing on any issue justiciable in this appeal.
This court has examined the files of the district court in this case, and holds that no basis for the granting of a writ of habeas corpus was presented in that court, and consequently this appeal is without merit and should be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
The sole question presented on this appeal is the constitutionality of a statute effective on the 7th day of February, 1941, entitled “An act relating to airports in certain counties, and providing for the purchase and maintenance thereof.”
The statute provides:
“Section 1. This act shall apply only to such counties in the state as shall border on or be contiguous to two cities, each of which shall have a population of more than 115,000 and located either within or without the state of Kansas.
“Sec. 2. Such counties for the purpose of cooperating- with the federal government in the establishment of public airports as a part of the national defense program are hereby authorized, through the board of county commissioners of said county, to issue the bonds of said county, which bonds shall be a general obligation of the county in the amount and manner hereinafter provided, and to sell said bonds in the manner provided by law, and to use the proceeds derived therefrom for the purchase of lands required and necessary for the establishment of an airport, and for the payment of such necessary and legal expenses incidental thereto as may be required in order to acquire said lánds upon which said airport is to bo located.
“Sec. 3. That before the issuance of said bonds for said.purposes as aforesaid, the board of county commissioners of said county shall by resolution declare to be necessary the establishment of an airport and the issuance of bonds to pay said costs as aforesaid, and clearly define the purpose for which said bonds are to be issued and the amount thereof, which said resolution shall be published once in two newspapers of general circulation in the county, and such bonds shall not be issued if within ten days after the publication of said notice a petition or petitions shall be filed with the county clerk signed by at least twenty percent of the qualified electors of each of the commissioner districts of said county protesting the issuance of such bonds. In determining the sufficiency of such protest or the number of voters required to sign said protesting petition or petitions, the total vote cast in such commissioner districts for secretary of state at the last general election shall be used as a basis.
“Seo. 4. All bonds issued under the provisions of this act shall be issued in accordance with the provisions of the general bond law, and the aggregate amount of bonds so issued shall not exceed one-quarter of one percent of the assessed tax valuation of the tangible taxable property of such county as shown by the records and books of the county clerk at the last preceding assessment.
“Sec. 5. For the purpose of acquiring any necessary land or rights of way over the same, necessary for the establishment of such airport, if the board of county commissioners cannot agree with the owner as to the price to be paid therefor, condemnation procedure may be instituted by said board and prosecuted in the name of the county, under the provisions of the general provisions of the law relating to condemnation.
“Sac. 6. Upon the establishment of an airport and the acquisition of the land required therefor as aforesaid, the board of county commissioners hereby is authorized to operate and maintain and to make such reasonable rules and regulations governing the conduct and operation, maintenance and care of said airport as may be necessary for the best interests of the county and general public, and is authorized to enter into leases and contracts with the federal government or any of its agencies, pertaining to the use of said airport, conduct and operation, as may be necessary in order to coopei’ate with the federal government as a part of the national defense program, and further is authorized to make such reasonable rules and regulations and to enter into contracts and leases with private individuals and persons, so long as the same does not interfere with the use of said facility by the federal government, or its agencies, and so long as said rules and regulations are not unjustly discriminatory.
“Sec. 7. That for the purpose of equipping, improving, operating, maintaining and regulating said airport, and all things incidental thereto, said board of county commissioners hereby is authorized to levy an annual tax not to exceed one-eighth mill per year, which said tax shall be in addition to all specific and aggregate levies authorized or limited by law for county purposes.”
The plaintiff, a taxpayer of Johnson county, in his petition alleged the act is unconstitutional and void for the reason that it is in contravention to section 17, article 2, of the constitution; that pursuant to the terms of the statute the defendants, the board of county com missioners, on February 10, 1941, adopted a resolution signifying their intention to issue the bonds of the county in the sum of $73,000 for the purpose set forth in the statute, and would, if not restrained, levy an annual general property tax to retire the bonds and pay the interest thereon, and prayed for an order restraining the defendants from proceeding further in the matter. A temporary injunction was issued and a hearing set for February 17,1941. An answer was filed and a hearing had. At the trial testimony was introduced and an agreed statement of facts submitted.
The court made findings of fact and returned conclusions of law. The court found that the plaintiff is a bona fide resident of Johnson county and was a proper party to institute the action; that the defendants, as officials of Johnson county, are threatening to and intend to proceed with the issuance of the bonds and to the performance of all the duties required by the statute. The court further found:
“12. Johnson county, Kansas, is the only county within the state of Kansas which ‘borders on or is contiguous to two cities, each of which have a population of more than 115,000, and located either within or without the state of Kansas,’ and no other county in the state of Kansas is so situated. There is no reasonable probability that any other county in Kansas will ever be situated so that it will be classified under the special provisions of section 1 of said act.
“13. The two cities to which Johnson county, Kansas, is contiguous are Kansas City and Kansas City, Mo., each having a population of over 115,000 and in each of said cities are located major improved airports, all of which are accessible to Johnson county, Kansas, and the location of the airport proposed to be established under the provisions of said act within Johnson county.
“14. There exists at the present time a great emergency in our nation, which is both national and international in its scope and extent, and in recognition of which, and by reason thereof, the Congress of the United States passed an appropriation bill of forty million dollars for the establishment of about two hundred public airports, the locations of which were to be designated by the proper administrative authorities of the federal government, such locations to be selected and designated only upon tracts of land which were respectively owned by some governmental subdivision which would be compared [empowered] to make the same available to the federal government free of cost to it for the items of the purchase price and maintenance expenses thereof.
“A site for the establishment of one of said public airports has been designated by said federal authorities for the establishment of one of said units within Johnson county, Kansas, and when the same is made available to the federal government will proceed without delay to the erection of those facilities required for the proper use of the same in the federal government’s emergency defense program, provided, however, that said site is made thus avail able to the federal government not later than on or about March 1, 1941. In event that said site is not available to the federal government at said time, there will be an abandonment thereof for the purposes now contemplated.
“The Kansas legislature, at the time of the enactment of Senate bill No. 37 into law, had all of said facts before it at the time of its consideration and passage of said act, and. the handling and the passage of said bill was done without any undue delay whatsoever on the part of both branches of the Kansas legislature and the governor of Kansas in his signature and approval of said act, all with the specific aim and purpose of full cooperation on their part with the national government’s emergency defense program as the same related to the establishment of said public airport upon the site selected in Johnson county. And it was shown by the legislature in the passage of said act, and by the governor at the time he approved and signed the same, that said act was a special emergency law which did not apply to nor affect or involve any other county in the state of Kansas than Johnson county; that at all such times it was not the intent of the legislature or the governor that said act would apply to or'affect any other county in Kansas than Johnson county.
“15. The federal government has allocated the sum of 1188,000 of its funds for the construction and improvement of the airport that is contemplated that will be located on the land which the issue of the said bonds of Johnson county are to purchase under the provisions of said act of the Kansas legislature. It was for the purpose of assisting and supporting the defense program of the federal government that the said act was passed by the Kansas legislature.
“The location of the site of the proposed public airport was selected in Johnson county by the act and choice of the duly authorized agencies of the federal government, subject to the purchases of such site by Johnson county, through the action of the board of county commissioners of said county. And the legislature of Kansas, in enacting said Senate bill No. 37 into law, had in mind that the same was a ‘special bill,’ applying only to Johnson county, and that it did not apply to any other county in the state of Kansas, and as such it was not contrary to nor repugnant to section 17, article 2, of the constitution of the state of Kansas; that it was not the intent and purpose of the legislature of Kansas to enact said Senate bill No. 37 as a law of ‘general nature which have uniform operation throughout the state’; and that by reason of all of the special circumstances involved herein, that no general law that would or might be attempted to be passed by said legislature could or would be applicable to the emergency requirements and special needs of the national defense program, but that the same required the passage of a special emergency act by the Kansas legislature that would be cooperative therewith; that the enactment of said Senate bill No. 37 was and is as descriptive of Johnson county only, as if the same had been specifically designated therein by name, and does not apply to nor affect any other county in the state of Kansas; that the time limitation involved for the completion of the program of cooperation between the federal government and Johnson county for said national defense unit is very short and will expire on or about March 1, 1941.
“16. The court finds from the pleadings filed herein, and from the ‘agreed statement of facts’ which have been duly submitted to the court, and from the evidence given in the trial of this cause, that in the great national and international emergency, which has existed for many months, and which still exists, and that', as a direct result thereof, the conditions under which the legislature met for the consideration of Senate bill No. 37 ‘were unprecedented in modem history’; the circumstances which have been created by and through the said ‘emergency’ were such as to fully warrant and justify the passage of the act of the legislature, as contained in said Senate bill No. 37, as special legislation, to accomplish the desired and necessary ends.
“17. The court finds that under the terms, conditions and limitations of said act, and the specific purposes for which the same was passed by the Kansas legislature, that the same cannot be considered, by or through the remotest probability or possibility or speculation, to be made to apply to any other county in the state of Kansas than Johnson county.
“18. The population of Kansas City is in excess of 115,000, and the city limit of said city borders on and is immediately contiguous to the northern border of Johnson county; said city is within the state of Kansas; the population of Kansas City, Mo., is in excess of 115,000, and the city limit of said citjr borders on and is immediately contiguous to the eastern border of Johnson county; said city is outside of the state of Kansas. Said two cities come within the classification mentioned in section 1 of said act. There are, in fact, no two other cities having a population of over 115,000 which border on or are contiguous to any other county or counties, in the state of Kansas.”
Paragraph 4 of the conclusion of law states;
“Said Senate bill No. 37, which was enacted into law by the legislature of Kansas, and was duly approved and signed by the governor of Kansas, became effective on February 7, 1941, is an act constituting and classified as ‘special legislation,’ and the same is not repugnant nor contrary to any of the provisions of the constitution of the state of Kansas. And no section or portion of said act is repugnant nor contrary to any of the provisions of the constitution of the state of Kansas. Said act became on February 7, 1941, and still is, a valid and subsisting and enforceable law of the state of Kansas.”
The court entered judgment setting aside the temporary injunction and denied the permanent injunction prayed for by plaintiff. This appeal followed.
Section 17, article 2 of the constitution of the state of, Kansas, provides:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
Special legislation is not prohibited by this provision of the constitution. In Murray v. Payne, 137 Kan. 685, 21 P. 2d 333, the law was formulated in the following language:
“The constitutional provision quoted does not prohibit special legislation. Only laws of a general nature shall have uniform operation throughout the state, and when a general law cannot be made applicable, special legislation to accomplish desired ends is permissible. Whether a law is repugnant to the provision of the constitution is a matter to be finally determined by this court. The question is usually one of classification, and in such cases the court must determine whether sufficient differences exist to make distinctions substantial. In doing this the court must consider the nature and purpose of the legislation and the conditions and circumstances under which it was enacted.” (p. 687.)
For similar expressions, see State, ex rel., v. High-school District, 112 Kan. 616, 618, 212 Pac. 69; Wyandotte County v. Kansas City, 112 Kan. 639, 643, 212 Pac. 70; State, ex rel., v. Wyandotte County Comm’rs, 140 Kan. 744, 748, 39 P. 2d 286.
As stated in Murray v. Payne, supra, in determining whether a general law could be made applicable, we must consider the nature and purpose of the legislation and the conditions and circumstances under which it was enacted. Obviously, in the consideration of this question, we are concerned, not with form, but with substance. We look not merely to the expressions in one sentence or one section, but to the purpose of the legislature upon an examination of the act as an entirety. Was the end to be accomplished legitimate? If so, the act may be supported as valid special legislation, although formulated in language ordinarily applicable to a general law. The trial court found the act applied only to Johnson county and was passed by the legislature to meet a national emergency. There is ample justification for the finding in the record.
The court found there was no reasonable probability that any other county in the state would ever be situated so that it could be classified under the provisions of section 1 of the act. We are unable to say this conclusion is wrong.
The act was passed by reason of the national emergency. A lawful and legitimate purpose was to be accomplished. That purpose could not be fulfilled by a general law applicable to other counties in the state within the classification of the act. We are clear the act was special legislation. We are equally clear from the records before us that the act does not violate section 17, article 2, of the constitution of the state of Kansas. The trial court so found, and we approve the judgment.
The judgment is affrmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a judgment on an award of compensation for injuries sustained by a workman in his employer’s service.
It appears that on and prior to October 15, 1938, the claimant, Lee Hall, worked as a repair man on carrier tubes in the respondent’s packing plant in Kansas City. While standing on a ladder he slipped and fell astride a conveyor belt and received injuries in the region of his groins and also in his back. He was taken to a hospital and bandaged front and back and given some medicine. He remained in the hospital eight days and thereafter stayed at home for two or three weeks. He then reported for work, but was unable to perform any. His employer paid him his regular wages of $27 per week from the time of his injury until January 7, 1939— some twelve weeks. Thereafter for nine weeks he was paid at the statutory rate of 60 percent of his average wages, $16.20 per week, for temporary total disability. His alleged injuries had no objective symptoms discernible by the doctors who examined him from time to time, so the respondent urged him to go to Chicago to consult a specialist, one Doctor Solomon, and offered to pay his expenses. Claimant declined to do so, and in consequence, on March 11, 1939, respondent quit paying him compensation.
Then followed the usual formal proceedings before the compensation commissioner. Witnesses testified pro- and con touching his injuries, the extent of his incapacity, and its probable duration. On August 25,1939, the commissioner made findings, the material parts of which read:
“The preponderance of the medical testimony is to the effect that the claim-' ant herein is disabled at the present time and that such disability is the result, directly or indirectly, of the accidental injury of October 15, 1938. The consensus of opinion is that the claimant will be disabled for a period of from six months to one year from the date of the hearing.
“The respondent herein paid claimant his regular wages from the date of the injury, October 15, 1938, to January 7, 1939, and thereafter paid claimant S16.20 per week until March 11, 1939. For the period of time during which the respondent paid claimant his regular wages, although claimant had not returned to work, the respondent is entitled to credit at the weekly compensation rate of S16.20. Any amount paid to claimant weeldy over and above the regular weekly compensation rate must be considered as a gratuity and not to be credited to the respondent on the compensation due to claimant.”
Accordingly an award of compensation for 77 weeks was made, together with an allowance not to exceed $500 for medical and hospital expenses. The usual administrative costs were charged against the respondent.
Both parties appealed to the district court, which set aside the commissioner’s award of compensation for 77 weeks, and in lieu thereof made an award at the same rate for 152% weeks. It did, however, set aside the $500 allowance made by the commissioner of compensation.
The respondent now brings the cause here for further review, contending chiefly that there was no evidence in the record to justify an award for 152% weeks or for any length of time in excess of the 77 weeks’ award made by the compensation commissioner.
The expert testimony was that there was an almost complete dearth of objective symptoms of injury. Doctor Bresette, called as a witness by claimant, testified that claimant complained of pain down the inside of his left leg up into the groin, that the muscles in that region would go into spasm when manipulated, that claimant walked with a slight limp as if favoring his left side; that such was an abnormal condition and was possibly due to trauma. Claimant was highly nervous, talkative and flighty. He further testified:
Cross-examination:
“Q. Did you find any objective symptoms? A. Nothing objective except . . . the spasm of the left adductor muscles when you attempt to manipulate his leg, that is he complained of tenderness on manipulation.
“Q. If this fall caused any injury to those muscles would you expect to have the fall followed by some external evidence of injury? A. Yes. Normally a fall of that severity should cause ecchymosis in the tissues and swelling. There should be swelling and it should turn black and blue ... an accident severe enough to cause what he has should leave external evidence. If it did not, an accident was probably not the cause. There was nothing about his condition that wouldn’t be present in a neurastheniac. Everything he complained of might have been caused by neurasthenia.
“The difference between a malingerer and a neurastheniac is that a malingerer builds up symptoms and says he has pain when he doesn’t, and a neuras-theniac has pain. There is no way "to tell whether a person is lying. It is entirely possible that a person can have litigation neurosis.”
Elsewhere this witness testified :
“It would seem that this condition in his leg muscles should improve . . . I believe he is still unable to do heavy work at this time. Just how long that would be I would be guessing to state, but it would seem that wouldn’t be permanent.
“Q. And you have no notion how long it would be before he could if at all? A. Well, it’s entirely a conjecture on my part, but I would think it would be in the neighborhood of another year anyway.”
Doctor Neas, another witness for claimant, testified:
Cross-examination:
“Q. In the ordinary course of time you think he would probably be recovered, that he would not be incapacitated any longer than six months? A. I couldn’t say as to time.
“Q. In your best judgment. A. I think he will eventually get well, but I wouldn’t set a definite time.
“Q. What is your best judgment on it? A. Six months to a year, or it might even be longer.”
Doctor Angle, called as a witness for respondent;'testified:
“He ' (claimant) is a neurastheniac.- It is difficult to differentiate between that and malingering. ...
“Q. Do you feel that he has a permanent inability to work? A. No. X think that Mr. Hall will straighten out. He isn’t so old but what he can straighten out. I think with the element of time and good advice he should get well.
“Q. Within what time? A. And it may take six months or a year. And some of these people do remarkably well in even a shorter time than that sometimes.
“Q. In a person in Mr. Hall’s condition, how long would you think such an aggravation would tend to exist? A. Well, I think I would be in agreement with what I heard his other doctors testify to, that a few months, and not longer than a year, he should be all right.”
The common law rules as to the competency and sufficiency of evidence are not strictly applied in workmen’s compensation cases (Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 73 P. 2d 1032), but an award of compensation for future disability must be based on some substantial evidence (Fair v. Golden Rule Refining Co., 134 Kan. 623. 7 P. 2d 70; Cowan v. Kerford Quarry Co., 146 Kan. 682, 72 P. 2d 999). Where there is no evidence to support an award this court has no alternative but to set it aside (Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862). The testimony of one doctor who merely “conjectured” that claimant’s disability might last more than a year was insufficient to support an award — particularly where, as here, objective symptoms of disability or other observed phenomena were wanting. Mere subjective symptoms will not support an award for future disability. (Lehigh Stone Co. v. Industrial Com., 315 Ill. 431, 436, 146 N. E. 533; Gulf Refining Co. v. Frazier, 15 Tenn. App. 662, 688, 689, 83 S. W. 2d 285; Texas Employers’ Ins. Ass’n v. Wallace, Tex. Civ. App., 70 S. W. 2d 832; 2 Schneider on Workmen’s Compensation, 2d ed., ¶ 525a; 22 C. J. 640, 669, 670, 675, 726, 727.)
As this claimant was injured on October 15, 1938, the district court’s award of compensation for 152% weeks, beginning on October 22, 1938, would run until about the middle of September, 1941. It will be noted that in the testimony quoted above, and ignoring its tenuous if not quite incompetent character, the doctors were of the opinion that claimant’s disability to labor should disappear within six months or a year. That testimony was given on June 12, or July 10,1939 — the two dates of the hearing before the compensation commissioner. Giving weight and credence to that testimony, claimant’s disability might last another year from the date those doctors gave their testimony. That would carry the time in which he might be entitled to an award down to July 12,1940. From October 22, 1938 (one week after his injury), to July 12, 1940, is 1 year, 8 months, 20 days, or 87 weeks. While the compensation commissioner only allowed an award for 77 weeks, it will be seen that on the testimony —such as it was — an award could have been made for 87 weeks. By the same token, however, there was no substantial evidence to justify the trial court’s enlargement of the time the award should be paid, to 152 weeks, and its order must therefore be modified and reduced to 87 weeks’ compensation from October 22, 1938, with the appropriate credits for payments already made, about which there is no dispute.
On the other error urged by respondent — that claimant’s right to compensation ceased when he declined to go to Chicago to be examined and treated by Doctor Solomon, there is lacking any testimony tending to show that Doctor Solomon probably could have cured claimant’s ailment or done him any substantial good; nor was there any testimony that no competent specialist to treat claimant was available in Kansas City or thereabout. The court holds that this point urged in behalf of respondent is not tenable. However, the trial court’s order setting aside the allowance of $500 for hospitalization and medicine was eminently correct. There was no testimony to support such an allowance. The court’s order reads:
“The court further finds that respondent has provided hospital, medical and surgical treatment for claimant, who refused further medical treatment offered by respondent, and that the portion of the award for hospital and medical expense to be paid by respondent in an amount not exceeding 8500 should be entirely set aside and disallowed.”
In view of the foregoing it will be necessary to remand this cause to the district court with instructions to reduce the award from 152% weeks to 87 weeks, and in all other respects the judgment of the district court will be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in habeas corpus. The petitioner alleges he is an inmate of our state penitentiary, where he is being held under a commitment issued May 29,-1933, out of the district court of Sumner county, authorizing his imprisonment for life, and that the commitment is void for the following reasons: The record shows (1) jurisdiction of the court to issue the commitment “was procured through the reckless contrivance in the pretense of a trial which in and by itself, deprived your petitioner of every right secured to him by the state and federal constitution, and precluded . . . ‘due process of law.’ ” (2) That the court went beyond the bounds of judicial discretion in overruling his motion without a hearing. (3) That the duly authorized officers unlawfully suppressed his appeal documents and deprived him of his lawful rights of appeal. (4) That after his imprisonment the then warden and other officers of the prison suppressed and refused to permit him to mail documents pertaining to an appeal and to habeas corpus. That the records will show (1) that he has consistently been deprived of due process of law by the courts and the officers and agents of the state; (2) that his previous petitions have been dismissed by the courts of the state, without recourse to the record, upon the unfounded assumption the record shows his conviction by an orderly trial within the requirements of due process of law, and (3) that the officers and agents of the state are exercising unlawful authority over your petitioner, obtained by methods contrary to due process of law.
All these allegations are made in the most general terms, void of any specifically alleged, controvertible facts; yet, in order that petitioner might not be deprived of any of his rights, we waived our rules respecting a deposit for costs and the printing of abstract and brief, allowed the petition to be filed, and directed respondent to file a return. Respondent has prepared and filed his return, which includes pertinent records of the trial, and a copy thereof was served upon the petitioner, who now complains that the records have been brought before the court; also,.briefs have been filed by both parties.
Except in one particular, later to be noted, the record shows none of the facts alleged by the petitioner. On the contrary, it shows that on December 2, 1932, a complaint, in writing, was filed before a justice of the peace of Sumner county, charging defendant in one count with forgery of a described check, and in a separate count with the uttering of the check in Sumner county. A warrant issued on this complaint was delivered to the sheriff, who on April 12, 1933, arrested the petitioner in Harper county and brought him into Sumner county. On the 20th day of April, 1933, a preliminary examination was held before the justice of the peace, at which the state was represented by the county attorney, and the defendant appeared in person and by his attorney, apparently one chosen and employed by him. As a result of that hearing he was bound over for trial to the district court. Thereafter an information was duly filed charging the same offenses charged in the warrant. The case came regularly on for trial in the district court on May 15, 1933. Defendant was present in court and represented by counsel throughout the trial. Being unable to prove the forgery was committed in Sumner county, the county attorney in effect withdrew that count from the jury. A verdict of guilty was rendered upon the second count. On May 20, defendant’s motion for a new trial and his motion in arrest of judgment came on to be heard. These were considered and overruled. On May 29, 1933, there was a hearing upon the sentence. Upon evidence produced at that time by the county attorney the court found defendant previously had been convicted of two other separate and distinct felonies, and under the statute (G. S. 1935, 21-107a) he was sentenced to life imprisonment.
There is nothing in the record to indicate that the petitioner attempted to appeal his case to the supreme court. There is nothing in the record of the proceedings in the court below to indicate any irregularity in the petitioner’s trial and conviction, and certainly nothing to indicate that his commitment was void for any reason.
Soon after the petitioner was confined in the penitentiary he made some effort to file a habeas corpus petition. Under rules then prevailing at the penitentiary these were not permitted to be sent out, and this much of the allegations of the petition in this case has some basis. These rules did not prevail long, however, and in October, 1935, he filed a petition for habeas corpus in this court. That was duly considered and a carefully prepared opinion was filed denying the petition. (Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502.) Some of the questions sought to be raised in this proceeding were presented to the court at that time. All of them might have been and should have been presented in that proceeding. While a court should be liberal in entertaining habeas corpus proceedings, there is no reason to reconsider the same questions repeatedly.
In addition to the cases in this court the petitioner has filed in the federal court two petitions for habeas corpus, each of which was dismissed by the court because it failed to present a substantial federal question. Also, he has had one or more cases in the district court of Leavenworth county, where the same result was reached. We entertain this case only because of plaintiff’s allegations respecting the records in the trial court. No evidence has been offered to support those allegations other than the bare statement of the petitioner. The records of courts are not set aside upon the unsupported statements of a defeated litigant.
The writ prayed for is denied.
Filed under the same docket number of this proceeding is a notice of appeal from the judgment of the district court of Leavenworth county, rendered December 11, 1940, and a copy of a journal entry, which recites a finding of the court that the petition for habeas corpus then being considered does not state facts sufficient to warrant the issuing of the writ. Nothing further is filed respecting that appeal. ' The petition ruled upon by the district court is not before us. The appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for injuries alleged to have been incurred when an automobile being driven by plaintiff collided with one being driven by defendant. Judgment was for the plaintiff. Defendant appeals.
The automobile accident out of which this action arose occurred October 28, 1936, at about 7:20 p. m. on U. S. highway 160 in Cowley county, about seven miles east of the city of Winfield. The road at the point of collision is improved with gravel surfacing and is part of a main traveled highway. The road runs east and west at the point of collision and at that time plaintiff was driving east and defendant was driving west. The width of the traveled portion of the highway at that point was thirty-two feet and yet for some reason plaintiff’s Model A Ford and defendant’s Ford V8 became entangled in passing.
Plaintiff filed his petition in the first instance against both defendant Branson, appellant herein, and The First National Bank of Winfield. The case was dismissed as to the bank and proceeded to trial against Branson alone. The petition alleged the accident was caused by defendant’s negligence in being intoxicated and in driving at a high and unlawful rate of speed on the wrong side of the road; and that plaintiff had been severely injured. The particulars of the allegations of negligence will be noted later.
Defendant answered denying plaintiff’s allegations as to defendant’s negligence and filed his cross petition, in which he alleged that it was plaintiff who was on the wrong side of the road and was driving at an unlawful rate of speed. Defendant demanded that he be allowed compensation for his own injuries. The case was tried to a jury, who found for plaintiff in the sum of $5,000 and answered certain special questions. After the trial court approved this verdict and rendered judgment, defendant perfected this appeal in which he specifies certain trial errors.
The first argument of defendant is that his motion for judgment on the answers to special questions, notwithstanding the general verdict, should have been sustained.
Question and answer No. 8 were as follows:
“Q. Under the instructions of the court, state what you find to be the proximate cause of the collision. A. The defendant Branson had been drinking and was driving over the center of highway 160 at an unlawful speed.”
Defendant points out first that the above answer acquitted him of all negligence charged except that specified in it. This is undoubtedly the rule.
The defendant next argues that what the jury found to be the proximate cause of the collision was not charged in the petition. If this were true the trial court erred in not sustaining the motion of defendant for judgment on the special findings. A consideration of this argument requires an examination of the petition. It will be noted that the jury found there were three proximate causes.
With reference to the first one, that is, that defendant had been drinking, defendant points out that the allegation of the petition was that Branson was driving his car while in an intoxicated condition such as to render him incapable of using his faculties. • Defendant argues that the finding made by the jury did not sustain the above allegation and in effect acquitted him of the charge in the petition with reference to negligence. We are not called upon to state what force this argument or finding might have if* the allegation was the only one in the finding and petition. As it is, we must consider that matter along with the other two causes.
It will be noted that the next cause found was that defendant was driving over the center of highway 160. The defendant points out two or three places in the petition where the charge was made as to the defendant being on the wrong side of the road and argues that the petition really charges that defendant’s car was completely over in the wrong or left-hand traffic lane and that the above finding acquits him of that. We have examined the petition in this respect and have concluded that the petition is not subject to such a construction. The car of defendant belonged on the right-hand side of the highway when a car was approaching from the opposite direction. It was not necessary that the entire car should be out of place. Be it ever so small a part over on the left-hand side, it would be enough to render the defendant liable if such was the proximate cause of the collision.
Defendant next points out that one of the proximate causes of the collision was that he was driving at an unlawful rate of speed. He then refers to the petition, where it was alleged that—
“Defendants . . . approached plaintiff at a high, wanton, dangerous and reckless rate of speed, to wit: 75 miles an hour.”
Defendant argues that because the jury did not find that he was driving at the rate of 75 miles an hour he was acquitted of the charge of excessive speed as a ground for recovery. At the time this collision occurred the law provided that—
“No person shall operate a motor vehicle ... at a rate of speed greater than is reasonable and proper, having regard for the traffic . . . nor at a rate of speed such as to endanger the life or limb of any person.” (G. S. 1935, 8-122.)
The jury was properly instructed as to this statute. The fact that the petition charged that defendant was driving at a specified rate of speed does not mean that a less rate of speed was not improper and hence unlawful. For all that appears from this record, the jury might have believed that defendant was traveling at a greater rate of speed than 75 miles per hour. This is covered by the finding of unlawful speed.
Defendant next argues that the trial court erred in denying his request that the jury be directed to make its answers to certain ques tions definite, certain and responsive and in overruling his motion to set aside these answers.
Question and answer No. 2 were as follows:
“Q. At the time Duncan could first actually see the headlights of the Bran-son car, how close to the center of the road was Duncan driving his car? A. About 2% to 3 feet south of the center of highway 160.”
Defendant argues that this answer should have been set aside because the testimony of witness was to the effect that the Duncan car was about one-third foot south of the center. It is difficult to see how this answer was prejudicial to defendant. If the car of plaintiff was on the south or right-hand side by four inches or two feet it was still in its proper place.
Question and answer No. 3 were as follows:
“Q. From the time Duncan could first actually see the headlights on the Branson car up to the instant of the collision, did the Duncan car change its course of travel, and if so, what change in its course of travel did the Duncan car make? A. No, it did not change its course of travel.”
Defendant argues that this answer should have been set aside because he testified that plaintiff swerved all of a sudden to the left, and plaintiff did not deny this. There was circumstantial evidence to support this finding even though defendant testified to the opposite effect. The jury was not obliged to believe the testimony of defendant on this point.
Question and answer No. 4 were as follows:
“Q. After Duncan actually saw the headlights of the Branson car did Duncan do anything to avoid the collision other than to lift his foot from the accelerator? A. No, he did not have time.”
He argues that this question could have been answered by the word “No” and that it was improper for the jury to add the explanatory words “He did not have time.” He argues that the explanatory statement evinces a determination on the part of the jury to bolster its answer and shows that the jury did not approach the consideration of the case with an open mind. The testimony of plaintiff on this point was as follows:
“Q. How long was it, do you think, after you saw the car pass the intersection before it struck you? A. It wasn’t more than a second of time. I hadn’t yet figured he was going to strike me until he just plowed right into me.”
Hence it appears that the finding was supported by the evidence if the jury saw fit to believe the testimony of the plaintiff. The ques tion could have been answered by the categorical statement “No,” but a jury cannot be held to the strict rule as to the use of language to which a more highly trained person would be held.
Defendant complains of the answer to question No. 5. This question did not require an answer unless question No. 4 was answered-in the affirmative. The jury, instead of leaving this question unanswered, wrote in the statement “No. 4 is not answered in the affirmative.” Defendant argues that this shows too much zeal for the plaintiff on the part of the jury. We prefer the view that this answer indicated a painstaking determination, on the part of the jury to answer every question as nearly correctly as possible.
Question and answer No. 6 were as follows:
“Q. At what point with reference to the center of the road did the cars actually collide? A. The center of collision was south of the center of the highway.”
Defendant argues that this answer should have been set aside because of the use of the words “center of collision.” The only fact which defendant was entitled to know was whether the collision took place on the north or south side of the center of the highway. This answer settled that point without any doubt.
Question and answer No. 7 were as follows:
“Q. Could Duncan have avoided the collision by turning to the right after it became apparent or should have become apparent to him that he was in a position of peril? A. No, not after he knew he was in a position of peril.”
Defendant argues that this answer should have been set aside because it'could have been answered with a simple “yes” or “no” and the jury added the words “not after he knew he was in a position of peril.” He also argues that the answer was not sustained by the evidence. As to the first argument, the language added to which defendant objects adds nothing to the meaning of the answer nor does it take anything away. It is taken from the language used in the question and appears to be the result of careful attention to details on the part of the jury. As to the argument that the finding was not sustained by the evidence, the testimony of plaintiff that has already been quoted in this opinion was sufficient to sustain this finding.
Question and answer No. 9 were as follows:
“Q. At what point with reference to' the center of the highway was the dark spot in the road referred to in the evidence as being under or near the Branson car after the Branson car came to rest? A. The south edge of the spot was about eighteen inches, north of the center of highway No. 160.”
Defendant argues that all the evidence in the case was to the effect that the south edge of this spot was from three to five feet north of the center of the highway. It is not clear from this record just what bearing on the ultimate outcome of the case the location of this spot had. At any rate, it appears that there was some substantial evidence to sustain the answer.
Defendant next argues that the trial court erred in giving certain instructions to the jury and in refusing to give certain instructions that were requested by the defendant.
The first one of these instructions to which defendant takes exception is No. 7. That instruction was as follows:
“It was also the law in the state of Kansas at the time of this accident that it was unlawful for any person under the influence of intoxicating liquor to drive, operate or have charge of the power or guidance of any automobile upon any public road or highway within the state of Kansas, and that the taking or the use of any intoxicating liquor by the person driving, operating or in charge of the power and guidance of any automobile within a reasonable time prior to the taking charge of the guidance of such vehicle shall be construed as prima facie evidence that such person is under the influence thereof.”
Defendant points out the allegation in the petition that he was so intoxicated as to render him incapable of using his faculties, and argues that such an allegation did not raise an issue which justified the giving of such an instruction. This argument is not good for the reason that this court will not draw a fine distinction as to when the driver of an automobile is so intoxicated as to have lost control of his faculties. . If he was so intoxicated that his condition caused him to be half a second later in shifting his foot from the accelerator to the brake than he would have been if sober, and this half second was the proximate cause of the collision, the instruction would have been proper. We note further in this connection that two other proximate causes were found by the jury, either one of which was sufficient to fix liability. Instruction No. 7 was not prejudicial to defendant.
Defendant next argues that the trial court erred in giving instruction No. 6. This instruction dealt with the rules of the road. .The portion of it to which defendant directs his argument stated that the speed of an automobile approaching an intersection outside a village or city should be reduced to 15 miles per hour. The instruction was given because the defendant had passed an intersection a short distance before he reached the scene of the collision.
In connection with this instruction defendant points out instruction No. 8 in which the jury was instructed that—
“Anyone disregarding these usual and ordinary provisions of the law in the use of the highways then existing would be negligent. And if injury is caused to another by the negligence of one then the other person would be entitled to recover damages.”
He argues that in effect these two instructions told the jury to find defendant liable if he was driving faster than 15 miles at the intersection regardless of whether the speed was the proximate cause of the collision. This argument is not good for the reason that the jury found that the speed, the drinking, and being on the wrong side of the road, were all proximate causes. Furthermore, the court in other instructions states the law of proximate cause correctly. Instructions must be considered and construed as a whole. (See Jacobs v. Hobson, 148 Kan. 107, 79 P. 2d 861.)
The argument of defendant as to the instructions requested by defendant have been examined and we have concluded that the law of the case was covered by the instructions given.
Defendant next argues that plaintiff was guilty of contributory negligence so as to preclude recovery, and his demurrer to the plaintiff’s evidence should have been sustained. In the consideration of this argument we must give the evidence the most favorable consideration possible from the standpoint of the plaintiff. The plaintiff testified that he saw the light of the defendant’s car for the first time when it was about 450 feet east of him; that he was on the south side of the highway going about 25 miles an hour; that it looked as if it might be going to turn south and the next thing he knew it crashed into him; that he had not figured defendant was going to strike him until he “plowed right into him.” There was evidence to the effect that defendant was driving on the wrong side of the highway. The foregoing was sufficient to make the question of whether plaintiff was guilty of contributory negligence one for the jury. The plaintiff was entitled to believe that the defendant would get back and remain on his own side of the highway as the cars approached each other. Had the car of defendant been on the proper side of the road at the time they met there would have been no collision. (See Balano v. Nafziger, 137 Kan. 513, 21 P. 2d 896; also, Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; also, McComas v. Clements, 137 Kan. 681, 21 P. 2d 895.)
This brings us to the argument of defendant that the verdict was excessive and rendered under the influence o-f passion and prejudice. Defendant argues that the verdict is so excessive that it cannot be cured by a remittitur, but asks if we do' not agree with this that a remittitur in a reasonable amount be ordered. The jury found for plaintiff in the sum of $5,000. Was this so excessive as to show prejudice? He was in the hospital two days after the injury; had a hospital bill of $17 and a doctor’s bill running over several months of about $100; and that he had earned $600 to $700 a year doing farm work; was unable to do a hard day’s work after the accident. There was some evidence as to his general bad health and weakened condition before the injury, and also as to his condition after the injury but not by the same doctors, that is, the doctor who testified as to his condition after the injury had not examined him before the injury. The evidence was that after the injury he had chronic myocarditis due to infection or glandular disturbance and he also had arthritis due to hemorrhoids, duct inflammation, crypts, and in addition that he carried a chronic gall-bladder infection. There was no satisfactory proof, however, as to how much of this condition was caused by the injury and how much was due to his condition before the injury. The award of a jury for bodily injuries will not be modified or set aside unless it is so great under all the surrounding facts and circumstances as to shock the conscience of this court. (See Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77.) This court has, however, examined the record and ordered remittiturs and sometimes a new trial on account of the amount of a verdict. (See Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P. 2d 1.)
In this case after careful consideration we have concluded that the proof of damages falls so far short of establishing that plaintiff was damaged in the amount of $5,000 that the verdict shocks the conscience of the court and should be reduced by $2,000.
We have concluded that such an order should be made in the interest of justice.
If plaintiff will remit $2,000 of the judgment and so advise the clerk of this court within ten days after the filing of this opinion the judgment of the court will be affirmed; otherwise it will be reversed for a new trial. It is so ordered. | [
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The opinion of the court was delivered by
Hooh, J.:
The Quivira Land Company (formerly the Quivira Development Company) operating a homesite and recreational community center in Wyandotte county appeals from a judgment for damages for conversion of a boat and for recovery of the amount paid by the owner of the boat for a membership certificate.
The principal questions are whether the only recourse the company had to enforce compliance with its rules and regulations was to cancel the certificate of membership and refund the amount, paid for it; whether answers of the jury to special questions are supported by substantial evidence; whether the answers are inconsistent with a finding of conversion; and whether the defendant was entitled to judgment notwithstanding the verdict.
The petition alleged two causes of action. The first was that the defendant, by its general manager, had wrongfully taken possession of a boat and its contents, belonging to the plaintiff, had “secreted and converted it” and refused to deliver it upon demand and refused to inform the plaintiff of its whereabouts. The value of the boat and contents was alleged to be $500, for which amount judgment was asked as actual damages. Additional and punitive damages in the sum of $1,500 was asked on the ground that the wrongful act of conversion was malicious, oppressive and actuated by spite.
For a second cause of action plaintiff alleged, in substance, that the defendant company owns and operates a lake project known as Quivira lake, around which homesites are located, and that the company also issues and sells “participation certificates” to persons who do not reside at the lake but desire to use the lake and enjoy the other recreational facilities provided; that on August 1, 1931, the defendant issued one of such certificates to plaintiff for which he paid $600; that as a holder of such certificate he was entitled to use the lake for boating and fishing, upon the payment of an annual maintenance fee of $25 which he had paid in advance each year; that the company was entitled to make rules and regulations governing the use of its facilities, but that it could only enforce observance of such rules and regulations by canceling the certificate and refunding the amount paid therefor; that by “confiscating” his boat and contents, concealing it and refusing to surrender it — as alleged in the first cause of action — the defendant had deprived him of his sole means of using the lake for boating and fishing, and had thereby, in effect, canceled his certificate and rendered itself liable to refund the $600 he had paid for it. The participation certificate and a certain letter written by the manager on July 28, 1938 — to both of which reference will later be made — were made a part of the petition.
The answer admitted that the plaintiff was the holder of the certificate, that he was entitled to use of the lake, subject to the conditions specified in the certificate and in the rules and regulations; that the letter of July 28, 1938, had been sent; and that the plaintiff’s boat was removed from the lake but on a different date than alleged. The defendant denied that it had wrongfully taken the boat into possession or had spirited it away, secreted it, converted it, or refused to surrender it; denied that the boat contained the equipment or contents as alleged in the petition; and denied that it had at any time asserted any claim of ownership or right to use plaintiff’s boat or its alleged contents. The answer further alleged that the boat was removed from the lake on account of violation of the boating and fishing rules by the plaintiff; that the plaintiff was told of the whereabouts of the boat when he first appeared at the lake on the morning following the removal, and told that the defendant made no claim to ownership or use of the boat, and that on August 16, 1938, he was informed by letter — -to which reference will later be made — that he could take the boat and do with it as he pleased, except that “he would not be permitted to use the same on said lake in violation of said rules.” The defendant further admitted in the answer that the company was entitled to cancel the certificate for failure to observe the rules, but denied that it had ever canceled it or attempted to do so. It was further alleged in the answer that “all during the year immediately prior to said happening complained of” the plaintiff had violated the rules as follows:
“(a) By inviting from one to three persons as his guests, on numerous occasions, to fish at said lake.
“(b) By exceeding the bag limit for any one day and exceeding the bag limit for any one week, as prescribed by said rules to be caught by any participation certificate holder’s entire family.
“(c) By using more than two fishing lines in the water at one time.”
Jury trial was had and a verdict rendered for the plaintiff on both causes. On the first cause for conversion of the boat and contents the jury awarded $500 as actual damages and $500 as punitive damages. On the second cause it awarded the full amount of $600 as prayed for. An election was granted to the plaintiff by the trial court to accept a reduction on the first cause of $200 in the verdict for actual damages and $300 for punitive damages, leaving a total verdict on the first cause of $500 and on the two causes of $1,100. The modification was accepted and judgment rendered accordingly. The jury answered special questions as follows:
“1. Was plaintiff advised by defendant company in a letter dated August 16, 1938, that his boat was available to do with as he saw fit, except that he should not violate the terms of his certificate or the rules of the company, through the use of his boat? A. Yes; by lawyer, by letter of August 16, 1938.
“2. Did plaintiff violate any of the rules at any time during the year prior to the time when defendant company removed his boat from the lake? A. Yes; wholesale violation; everybody else did.
“3. Did plaintiff, at any time during the year prior to the time when his boat was removed from the lake, take anyone outside of his wife and children with him and fish on Quivira lake, who were not lot owners or holders of participation certificates? A. Yes.
“4. If you find for the plaintiff state: (a) How much you allow on first cause of action as actual damages? (b) How much, if any, do you allow on first cause of action as punitive damages? A. (a) $500 for boat and contents, (b) $500 for punitive damages.
“5. State if defendant company ever refused to return plaintiff’s boat to him? A. Yes; in the letter of July 28, 1938.
“6. If you answer question 5 in the affirmative, state: (a) When? (b) Where? A. (a) July 28, 1938. (b) In the letter of James H. Proudfit, dated July 28, 1938.
“7. Did Mr. Proudfit, in taking the boat off of said Quivira lake, intend to convert the same to the permanent use of the defendant? A. Yes; to keep Mr. Smith off of lake until they had an understanding.
“8. Did Mr. Proudfit exercise dominion over said boat to the exclusion of the rights of plaintiff? A. Yes.
“9. Did Mr. Proudfit intend, in removing Budd Smith’s boat from said lake, to cancel said Budd Smith’s participation certificate? A. Yes.
“10. Has Mr. Proudfit or any official of the Quivira Land Company denied Mr. Smith, his wife, or members of his family under 25 years of age, any rights at any time that they lawfully were entitled to under their participation certificate? A. Yes; by removing the boat and forbidding him the use of the boat to fish until they had had an understanding.
“11. Did Mr. Proudfit and the Quivira Lake Company intend to keep Budd Smith from boating or fishing out of a boat on Lake Quivira? A. Yes.
“12. Did James Proudfit and the Quivira Land Company intend to keep Budd Smith from bringing guests onto Quivira property? A. Yes.
“13. Did James Proudfit and the Quivira Land Company take Budd Smith’s boat away from the lake to defendant’s barn or shop? A. Yes.
“14. Would James Proudfit and Quivira Land Company allow Budd Smith to use his boat on Lake Quivira after removing it July 28, 1938? A. No, not unitl they had an understanding.
“15. After removing the boat from the lake, did James Proudfit and Quivira Land Company ever intend to let him use his boat on Quivira lake until he and Proudfit had an understanding about fishing rules? A. No.
“16. Did James Proudfit and Quivira Land Company ever intend to let Budd Smith bring guests onto Quivira grounds until he and Proudfit had an understanding about fishing rules? A. No.”
Before considering the issues here presented for review, it will be helpful to set out the pertinent provisions of the rules and regulations in issue, and the letters, or portions thereof, hereinbefore referred to.
From the rules and regulations:
“If issued upon a deferred payment basis, this certificate will be in full effect upon issuance. In case of failure to pay any deferred payment within thirty days after due date thereof, this certificate may be canceled by the Quivira Development Company, and any and all payments theretofore made may be retained by said company as liquidated damages, and the holder hereof shall not be entitled to any of the privileges enumerated above.
“The Quivira Development Company may from time to time make rules governing the use of the' facilities mentioned above, and limiting the number of participation certificates that may be outstanding at any one time. Failure on the part of the holder hereof to observe such rules will entitle said company to cancel this certificate upon repayment of the amount theretofore paid, without interest.”
The letter of James H. Proudfit dated July 28, 1938:
THE QUIVIRA LAND COMPANY
July 28, 1938
Mr. Budd Smith, 411 East 69th Terrace,
Kansas City, Missouri.
Dear Budd — It is necessary that we take up with you again the matter of your breaking our fishing rules.
We observed last night that you had a guest fishing with you that is not a member of Quivira and, of course, you know that this is against our rules. This same thing has happened many, many times and we have decided to put a stop to it. You have thumbed your nose at me long enough, Budd, and we are going to determine right now whether you are going to abide by your fishing rules or the Quivira fishing rules.
I have ordered your boat removed from the waters of Lake Quivira and it is going to stay off of the lake until you and I have an understanding of the observance of our rules. I have also issued orders that we will not allow anyone to enter the Quivira property as your guest until we have this understanding.
You have been a consistent and persistent violator of our rules ever since I have been out here and I have waited a long time to bring this issue to a head.
I would be glad to talk to you at any time you say but I will promise you one thing and that is that our rules will be obeyed by you from now on.
Portions of the letter of August 16, 1938:
BORDERS, BORDERS & WARRICK
August 16, 1938
Mr. Glenn A. Thomas, SI West 10th Street,
Kansas City, Missouri.
Dear Sir — Further answering your letter of the 4th, addressed to The Quivira Land Company, please be advised that we have made inquiry concerning the matter and have the following comments to make.
We fail to see any provision in the participating certificate held by Mr. Smith which constitutes the removal of Mr. Smith’s boat from the lake an election to cancel his certificate. Obviously, it is not the intent of the language of the participation certificate that refusal of the privileges for violation of either the provisions of the certificate or of the rules of the company necessarily constitutes a cancellation of the certificate and an obligation on the' part of the company to repay the amount which Mr. Smith has heretofore paid. Such a construction would necessarily mean that any certificate holder could merely violate the provisions of the certificate or the rules of the company at will and as a direct result force the company either to disregard such violation or to repay the amount theretofore paid. We would be glad to have you point out to us any provision in the certificate which would entitle Mr. Smith to a return of his money.
The company desires to make it perfectly clear that there has been no cancellation of your client’s certificate.
On the other hand, the company feels that it is entirely justified in the action which it has taken. . . .
Mr. Smith has repeatedly violated the terms of the foregoing paragraph, in spite of frequent warnings. He is not entitled to the privileges of Quivira excepting in strict accord with the provisions of his contract. He cannot complain that certain privileges are denied him.
. . . All of these rules have been repeatedly violated by Mr. Smith. Having consented that the company may make rules and having agreed to abide by such rules, and having violated such rules, Mr. Smith is not privileged to force a financial obligation on the company by reason of his own actions.
The company has not confiscated Mr. Smith’s boat or contents thereof. His boat has not been damaged, and, in fact, Mr. Smith has known where his boat was from the day of the removal from the lake and has been told that the company claims no ownership over or in the boat, and that it is his to do with as he sees fit, excepting that he may not violate the terms of his certificate or the rules of the company through the use of his boat. There has been no conversion of 'this boat or its contents.
We therefore feel that we must reject your claim in full.
We shall first consider the second cause, in which appellee sought refund of the $600 which he had paid for his membership certificate seven or eight years prior thereto. Printed on the back side of the certificate was a statement of the various privileges to which the holder and his wife, unmarried daughters and sons under twenty-, five years of age were entitled — use of the clubhouse, beaches, lake for boating, fishing and bathing, roads, parks, playgrounds, drives, walks and bridle paths; also, statement of the dues to be paid and the use to be made of the funds created from such dues; a provision that delinquency in payment of dues forfeits the right to the privileges enumerated; a provision that the company may make rules and regulations governing the use of the facilities; a provision that the certificate may be canceled and the amounts already paid retained upon failure to make any deferred payment on the certificate, within thirty days after such payment is due; a provision that the company will be entitled to cancel the certificate upon repayment of the amount theretofore paid if the holder fails to observe the rules. It is the theory of the appellee that inasmuch as the certificate provides that it may be canceled upon return of the amount paid, for violation of the rules, such cancellation is the only remedy, the only means which the company may employ to enforce its rules ; that by removing his boat from the lake for violation of the rules and thereby depriving him of his means of enjoying the privileges of the lake, the appellant in effect undertook to cancel his certificate as provided in the contract and is thereby liable for refund of the $600. Appellant contends that violation of the rules merely “entitled” or gave an option to cancel the certificate and refund the amount paid; that in no way did it indicate an intention to cancel the certificate and that it had the right to employ any reasonable means to enforce the rules and regulations.
It is true, as urged by appellee, that the specification in a contract of a particular remedy to be used in case of default may operate to exclude all other remedies. But that depends both upon the specific provisions relating to remedy and upon the intent as disclosed by a reasonable construction of the whole contract. The instant contract provides that violation of the rules “will entitle the company” to cancel the certificate and make refund. Appellee argues that if the rules are violated and the company does not choose to cancel the certificate as it is entitled to do, there is nothing it can do to enforce the rules — with the result that the holder could continue to violate them without restraint. Under that construction one who has held stock or a certificate in such a company or club and enjoyed its privileges for many years could virtually force the company to refund what he had paid for his stock or certificate — no matter how much larger that amount may have been than the current value of the stock — by the simple expedient of violating the rules so persistently and flagrantly that his membership could not longer be tolerated. We find no law which compels such an unreasonable construction. The cases cited by parties largely turn upon the specific language used in the contract or upon the particular facts and circumstances as indicative of intention, and an analysis of them would merely extend this opinion without being of material help on the instant issue. If the rule contended for by the appellee has any application at all to the instant contract it is that the provisions for canceling certificates for failure to make deferred payments or for failure to observe the rules preclude the company from canceling for any other reason. But that issue is not here involved. The company had a right to make rules and regulations and appellee concedes that in the absence of the provision relating to cancellation, it would have had the right to employ any reasonable means to enforce them.
Did appellant adequately raise this issue of interpretation of the contract so that it is here for review? Whether the issue was raised by the demurrer to the petition may not be entirely clear. In any event, appellant clearly raised it by a requested instruction, the pertinent portions of which were as follows:
“Nor is plaintiff entitled to a cancellation of said participation certificate and the return of any money paid therefor merely because his said boat was removed from said lake in the enforcement of rules or provisions of the participating certificate, if you so find.
“You are further instructed if the plaintiff in this case violated the terms of his agreement with the Quivira Land Company, as contained in said participation agreement, or under the rules promulgated governing the fishing at Quivira lake, by taking persons to fish, other than his wife, unmarried daughters and sons, under 25 years of age, that such acts constitute a violation of the contract and plaintiff cannot use this violation to effect a cancellation of such Quivira company of his participation certificate nor recover $600 for his certificate.”
This instruction was refused and no comparable one was given. Appellant’s contention on this point was again covered, in substance, in its motion for judgment upon the answers to special questions notwithstanding the general verdict, the pertinent portions thereof being as follows:
“For the further reason that said jury construed the act of Mr. Proudfit to prevent a further violation of the rules as a cancellation of said certificate which was not true in fact or in law.”
We now consider the first cause — conversion of the boat and contents. Consideration of this cause takes us at once to an examination of the jury’s answers to special questions. Questions 2 and 3 were as follows:
“2. Did plaintiff violate any of the rules at any time during the year prior to the time when defendant company removed his boat from the lake? A. Yes; wholesale violation; everybody else did.
“3. Did plaintiff, at any time during the year prior to the time when his boat was removed from the lake, take anyone outside of his wife and children with him and fish on Quivira lake, who were not, lot owners or holders of participation certificates? A. Yes.”
The added words, “everybody else did,” in answer to question 2 were not responsive and can be given no effect. The fact that others may have violated the rules is, of course, no defense. Moreover, what steps, if any, may have been taken to prevent violations by others is not a part of this record nor within any issue here.
It clearly appears, from the jury’s answers, that the manager removed appellee’s boat from the lake for the purpose of bringing about an “understanding” with him. (See answers to questions 7, 10,14,15 and 16, supra.) What sort of an “understanding”? After a careful examination of the whole record we think there is only one answer which could be made to that question. It was an "understanding” that he would cease violating the rules. The evidence supports no other theory whatever as to the intention of the manager in removing the boat from the lake.
Now let us note the answers to questions 5 and 6, on the proposition of whether the manager, having removed the boat from the lake in order to enforce the rules, at any time refused to let him have the boat. The answers are as follows:
“5. State if defendant company ever refused to return plaintiff’s boat to him? A. Yes, in the letter of July 28, 1938.
“6. If you answer question 5 in the affirmative, state: (a) When? (6) Where? A. (a) July 28, 1938. (b) In the letter of James H. Proudfit dated July 28, 1938.”
An examination of the letter of July 28, 1938, shown above, discloses that it wholly fails to support the jury’s answers. There is not a line or an implication in the letter to the effect that appellee could not have his boat. The only sentence with reference to the matter is, “I have ordered your boat removed from the waters of Lake Quivira and it is going to stay off of the lake until you and I have an understanding of the observance of our rules.” Keeping the boat off the lake is something entirely different from refusing to let appellee have the boat. Furthermore, in answer to question 1 above, the jury found that by letter of August 16, 1938, the appellant specifically advised the appellee that he could do with the boat as he saw fit except to use it on the lake in violation of the rules.
Having been asked the specific question as to when, if ever, the appellant refused possession of the boat to appellee, the jury’s answers absolved appellant from other alleged acts or declarations of refusal to return the boat to appellee. (Walls v. Consolidated Gas Utilities Corp., 150 Kan. 919, 926, 96 P. 2d 656; First National Bank v. Mense, 135 Kan. 143, 149-150, 10 P. 2d 19; Stock v. Scott, 132 Kan. 300, 302-303, 295 Pac. 638.) Except for the testimony of ap-pellee, the testimony was that there was no refusal to let appellee have his boat. But it is not our function to pass upon conflicting testimony. The jury, however, was not obliged to give credence to any particular testimony and it chose to base its findings of refusal upon the letter of July 28 and not upon appellee’s testimony as to statements made to him by the manager. The letter of July 28, being a written document available for our examination, the jury’s answers 5 and 6, based on its contents, are within our review. Having determined here that the answers cannot stand, the conclusion necessarily follows that under the findings of the jury the appellant at no time refused to return the boat. As to the answer to question 8, it must be said that it either falls, along with the answers to 5 and 6, or is wholly unsupported by any evidence. The answers to questions 9,10,11, 14 and 15, do not bear on the issue of conversion of the boat, but upon the use of the boat on the lake. In cause one damages are not sought for keeping the boat off. the lake, but for the value of the boat and contents on account of “converting” it. The answers, individually and as a whole, are inconsistent with and cannot be harmonized with a finding of conversion of the boat inhering in the general verdict. It follows, under the rule frequently stated, that the general verdict must be set aside as to the first cause of action. (See G. S. 1935, 60-2918, and cases there annotated; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359; Curry v. Wichita Railroad & Light Co., 128 Kan. 537, 278 Pac. 749, and many other cases readily located in the digests.)
In the second cause of action the allegations as to conversion of the boat were repeated and made the basis of the contention that. appellee had in that manner been deprived of the use of the lake, and that thereby the company had in effect canceled the certificate and made itself liable for refund of the amount paid for it. Accordingly, a finding that there had been conversion of the boat was also essential to validity of the verdict as to the second cause of action. The effect of the answers being to negative any finding of conversion, it follows — in addition to what was said earlier herein as to the second cause of action — that the verdict must be set aside as to both causes of action.
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The opinion of the court was delivered by
Wedell, J.:
This is an action by the guest of a hotel to recover damages from a defendant hotel company for personal injuries. The action resulted in a hung jury, and defendant appeals from an adverse ruling on its demurrer to plaintiff’s evidence and on its motion for a directed verdict at the end of the trial.
The petition in substance alleged: Plaintiff was a guest of the Allis Hotel Company located in the city of Wichita. Defendant held itself out to its guests as being able to furnish to them competent and expert tailoring, cleaning and valet service for the benefit of its guests. The valet shop was under the control and management of defendant, its agents, servants and employees. One of the regular functions of the valet shop was the cleaning, pressing and repair for hire of clothing which might be sent to the shop by defendant’s guests. On December 8,1937, and on all subsequent dates material herein, plaintiff occupied a room in the defendant’s hotel as a guest for hire. On December 8th, plaintiff delivered one of her dresses to an agent, servant or employee of the defendant with in structions to clean the dress and to mend and repair the hem thereof which had become loose for a distance of approximately twenty-two inches. Defendant’s agents, servants or employees, acting within the course and scope of their employment, received the dress and undertook to make the necessary repairs thereon, but negligently and carelessly made the repairs to the hem by using a heavy basting thread and by making long stitches, varying from three-fourths of an inch to an inch in length, and negligently returned the dress to plaintiff’s room in a dangerous condition. The hem was not securely fastened to the dress in the usual, customary, safe and workmanlike manner in wThich such repairs are ordinarily and customarily made. The hem gaped at the stitches to such an extent that the heel of plaintiff’s shoe would be likely to become fastened or entangled in the hem and thread, all of which defendant, its agents, servants and employees knew or in the exercise of ordinary care should and could have known. The negligence of defendant was specified as follows:
“(a) In using heavy basting thread in repairing said hem, instead of a lighter thread such as a reasonably prudent workman would have used;
‘‘(b) In making long stitches in the hem of said dress in lengths varying from one-half inch to an inch;
“(c) In failing to warn plaintiff that the dress had been left in a dangerous and unsafe condition;
“(d) In repairing said dress in such a manner that the hem thereof gaped between the stitches in such a manner that plaintiff would, and did, catch her heel therein;
“(c) In failing to use proper care in repairing and stitching the hem of said dress.”
It was further alleged: Defendant demanded of and from plaintiff the sum of $1.75 for the repair work, which plaintiff paid. On the morning of December 10, plaintiff put on the dress for the first time, after the work had been done, and went to a drugstore in the city of Wichita at approximately 11:45 a. m. After completing her business there, she started to leave the building. In order to reach the street it was necessary to descend a flight of steps. As she started down the steps, and after having descended one step, the heel of her left shoe caught in the hem or in the loose stitches in the hem of the dress, where it had been improperly and negligently sewed, causing her to be thrown headlong to the bottom of the steps, at which place her head and face struck a door or doorstop, causing serious and painful injuries. The injuries were the direct and prox imate result of defendant's negligence. (The extent of the injuries are not material.) The verified answer admitted defendant operated the hotel in the city of Wichita during the month of December, 1937, and denied generally the averments of the petition except as specifically admitted. The answer denied specifically that: Defendant or any of its agents or employees were guilty of any negligence charged; the person to whom plaintiff delivered the dress or the person who made the repairs were the agents or employees of defendant; the acts complained of by plaintiff constituted negligence or were the direct and proximate cause of her injuries; plaintiff ordered defendant or its agents, acting within the scope of their employment, to repair the dress.
The answer further in substance alleged: The repairs were made without the knowledge or consent of defendant. All valet services in the hotel were performed by A. Lentz and not by defendant’s agents, servants or employees. Lentz and defendant had entered into an oral contract on or about August 1, 1936, whereby Lentz, in return for the privilege of obtaining the space on the second floor of defendant’s hotel building, known as the “Valet Shop,” and for the privilege of doing the cleaning and pressing for the patrons of the hotel, agreed to and did pay to defendant, as rent, an amount equal to one-half of the gross receipts from the “Valet Shop.” As a further consideration, Lentz agreed to and did dress his “Valet Shop” employees in uniform to conform to the employees of the hotel, and required of them a degree of courtesy and conduct toward the hotel guests similar to that of the hotel employees. For convenience, the hotel made all collections for valet service and accounted once each month to Lentz. Otherwise, defendant exercised no domain or control over Lentz, the A^alet service, or the employees of Lentz. Plaintiff did not send the dress to the valet shop to be repaired but only to be cleaned and pressed. The customary charge for that service was $1.75. The charge for repairing the dress would have been seventy-five cents, but that charge was not made. The dress was delivered to plaintiff’s room on December 8th and plaintiff had ample and reasonable time and opportunity to inspect the dress. Plaintiff was guilty of contributory negligence in failing to inspect the dress and to ascertain its dangerous condition, if in fact, it was in such condition.
The reply of the plaintiff contained a general denial, and further in substance alleged: If defendant had a working arrangement with Lentz, as alleged by defendant, the arrangement was unknown to plaintiff. Defendant held out the alleged employees of Lentz to plaintiff as its own employees. Defendant dispatched said employees to the rooms of guests desiring valet service, including the plaintiff, and defendant did order, control, and direct such employees in the discharge of their duties. Defendant by permitting the alleged employees of Lentz to wear its uniforms and to answer calls of its guests and to render valet service to them, did by its conduct and course of action adopt and hold out to plaintiff the alleged servants of Lentz as its own servants and employees and is es-topped to deny that they were its servants. Defendant, by its own admissions, was engaged in a partnership or joint enterprise with Lentz whereby both participated in the profits arising from the conduct of the valet business located in the hotel. The alleged agents and employees of Lentz were the joint agents and employees of the defendant and Lentz.
The evidence of plaintiff was in substance as follows: For eleven years she had served-in the capacity of sales manager for Elmo Sales Corporation of Philadelphia, selling a complete line of cosmetics, with a territory of Missouri, Kansas, Oklahoma, Arkansas, Colorado and Wyoming. She registered at the Allis Hotel as she had always done previously when in Wichita. After going to her room, she unpacked and told the operator she had some valet work to be done. The operator replied she would send the boy up. The boy came and was dressed in an Allis Hotel uniform. It had the word ‘'valet” on it. She gave him the dress and advised she wanted it cleaned, pressed and the hem fixed. He said “All right.” The hem was loose a distance of approximately twenty-two inches. The dress was returned and placed in her closet the next morning. Garments returned from the valet shop were placed in her rooms by boys who had a pass key. When she picked the dress up that morning the hem was still hanging a way down. She could not wear it, so she telephoned the operator to send a valet. A boy came, by the name of Eakins, and she told him she had sent the dress to be fixed and they had not fixed it. Eakins took the dress and said he would fix it. He was wearing a uniform similar to the one worn by the first valet. She next saw the dress on the morning of December 10th, when she started to dress. It looked all right so she put it on and went to work. She first went to the coffee shop in the hotel for breakfast and then went in her car from the hotel, to the Fox- Vliet Drug Store. She was in the drugstore a few hours. In leaving the drugstore she was required to descend steps which led to the sidewalk. As she took the first step she caught the heel of her left shoe in the hem of the dress and was thrown headlong to the double doors and struck her head against the doors and a sharp iron doorstop. She could not get up and one of the men took the heel of her shoe out of the hem of the dress and helped her back upstairs. The heel went through the dress right in the hem. Later she walked to the Innes store and then to the office of Dr. Willard Kiser, and from there to the Allis Hotel, where she remained from Friday until Sunday. She was then taken to Wesley Hospital, where she remained for eleven weeks. Before leaving the hotel on Sunday, Bob Schaef-fer, assistant manager of the hotel, came to her room and said:
“ ‘Miss Bradley, this sure doesn’t look like you,’ and I said, ‘No, it doesn’t.’ I told him I was trying so hard to get out to the hospital and I said ‘I want you to know what put me in the shape I am in’ and I took the dress and showed it to him and he said that was a terrible thing, he said, ‘We should have never returned it to you in that condition,’ and he wanted to take the dress, said he would take it and have it fixed for me and I said no, I would keep the dress with me.”
Plaintiff’s testimony was further, in substance, as follows: Previously the valet service had been satisfactory except on one other occasion. She had previously sent a new green dress to have it cleaned and pressed and it came back scorched. That was five or six years ago. When it came back in that condition, she took it to Mr. Duggins, who was then the manager of the hotel and told him what had happened. He took her to the cashier and gave her a refund on it and said he was sorry it happened. He called the valet down and told him, “Miss Bradley is a mighty good customer of ours — take care of her.” Mr. Duggins made the adjustment on her hotel bill. She always paid for valet service on her hotel bill. During the times she stayed at the hotel she had always been solicited for her valet work when the bellboys came for her bags and when they took her to her room. She had always delivered her garments to the bellboys and to the valets. They came to her room for them. She called for valet service on the house telephone. The telephone would answer-“Valet Shop.” She had at no time given her garments to any valet boy or employee in the hotel who was not wearing a uniform. Her company required her to stay at the best hotels. She stayed at the Allis because she thought it had the best service. In good hotels you could get any service you wanted. The stitches put in the hem when it was repaired ranged from one-half to about one inch or a little longer in length. The thread was big thread, doubled like would be used to sew carpet. She first examined the stitches when she got back to the hotel after the accident. She did not see any signs in the hotel which advise that the valet shop was not under hotel management. No manager or assistant manager ever informed her the valet shop was not operated by the hotel. When Mr. Duggins made the adjustment on her scorched dress he did not tell her that the valet shop was not under the management of the hotel. When she sent the instant dress down to the valet shop she thought she was dealing with an employee of the hotel. She relied on the hotel and expected it to do the work in the usual, ordinary and careful manner. The hotel charged her, and she paid it, $1.75 for cleaning and pressing the dress, and for mending the hem.
On cross-examination plaintiff testified in substance: She was forty-eight years of age and had purchased the dress four or five months prior to the accident. She had shoe repair work done while staying at the hotel and the cost of the repair was charged to her hotel bill. The shoes were given to the bellboys and she did not know who repaired the shoes. She did not care who repaired them as long as they were properly fixed. Her laundry work, while at the hotel, was charged to her hotel bill and she did not know who did the work. She did not care so long as it was properly done. Telegrams and telephone calls were likewise charged to her hotel bill. She did not know whether Mr. Lentz operated the valet shop as a tenant in the building. She would have sent the dress to him if she had known he was part of the hotel and that she would get good service.
L. F. Hammond, a witness called by plaintiff, testified in substance: He was vice-president of the Fox-Vliet Drug Company and saw plaintiff on December 10, the day she was in the office on a business call. After the accident she was lying in the lobby of the entrance to the store. There were four steps leading down from the floor of the office. A double door leads from the lobby platform into the street. The height of the steps was from six and one-half inches to approximately eight inches. The stairs were in good repair. There was no loose binding on them at any point.
Perry Eash, a witness called by plaintiff, testified in substance: He had been tailoring continuously since he was discharged from the army in 1919. He had repaired garments for both men and women. He had made and repaired hems in women’s dresses. The thread used in repairing the hem of the instant dress was a heavy double thread ordinarily used to sew buttons on garments. The stitches were approximately one inch in length. The careful and prudent way to do that work is to use the lighter weight thread and to make the stitches from one-eighth to one-fourth of an inch apart. The reason for making the stitches that far apart is the safety factor. The purpose is to keep the hem from coming down and from coming loose. It wouldn’t appear very nice if the hem came down or you could possibly catch your heel in the hem.
On cross-examination the same witness testified in substance: He was an expert on women's apparel. The instant stitches were from three-fourths of an inch to an inch in length. Some of them were one-half inch in length. The usual and customary charge for cleaning and pressing a dress like the instant one, in a first-class shop in Wichita, was seventy-five cents.
Defendant demurred to the evidence only upon the following grounds:
1. “Shows no evidence that any negligent act claimed in the petition or by the evidence of the plaintiff was performed by any servant, agent or employee of the defendant, the Allis Hotel.
2. “That the plaintiff has shown herself guilty of contributory negligence.
3. "That under the theory of ostensible agency as claimed by the plaintiff herein, the evidence affirmatively shows that the plaintiff did not rely upon any representation of the agency claimed to exist between the Allis Hotel and one Ealdns.”
Defendant did not stand upon its demurrer but introduced its evidence. Its evidence disclosed: A written contract was entered into by and between it and Abraham Lentz on December 3, 1931, which expired December 3, 1936; thereafter no new written contract was executed but the parties orally agreed to continue the old contract, except as to the provision for the division of the gross income; instead of Lentz receiving forty-five per cent thereof, as the old contract provided, they agreed to divide the gross income equally.
The old contract referred to the Allis Hotel as the company. For our present consideration it is sufficient to note only certain parts of the old contract, which provided:
1. “That the company, operating Allis Hotel in Wichita, Kansas, agrees to permit the use of a space or room approximately 13 feet by 16 feet, located on the mezzanine floor or third floor of said Allis Hotel, said space located between the third floor service kitchen and the linen room; and the company shall furnish steam, heat, water and electricity reasonably required for said purposes, without additional charge. The company shall have the right, through its engineering department, to regulate the use of gas, water, electricity and steam in said shop.
2. “That Lentz has installed and furnished all necesary machinery and equipment to operate said pressing and valet shop, and has furnished all necessary or required employees to keep said shop open and properly operating for twenty-four hours per day, all at his cost and expense. Lentz agrees that all such employees shall be under the supervision and control of the company and that they shall conform to the rules and regulations of the company with respect to its employees. Lentz shall require all of said employees to appear in uniform when making pick-ups or deliveries through the hotel Lentz agrees that all workmanship shall be done under his personal supervision and shall be first class in every respect.
3. “That, in consideration hereof, Lentz further agrees: To pay the company fifty-five percent (55%) of the total gross income derived from valet services performed for guests of the hotel for and during the term of this agreement; to make settlement not later than the 10th day of each month following the month in which the said income shall have been made and/or received ; to press and make minor repairs on the service department uniforms of the hotel free of charge; to make a minimum charge for cleaning said service uniforms, said minimum charge not to exceed the cost of Lentz of so cleaning same; to keep and maintain the said shop and premises occupied by same clean and free from filth, dirt or waste; and to not cause or permit any nuisance or>violation of law in or about said premises; and in all respects to conduct said shop and premises and business in a high-class, orderly and workmanlike manner at all times.
4. “That the company, through its auditing department, shall have the right to lay out and designate all records, books and accounts to be kept by Lentz in the conduct and operation of said business and Lentz shall conform to the system so laid out and prescribed by said department, and shall make such reports as may be demanded or expected under such system; and the company shall have full and free access to said space and premises at all times and to all books, records, and accounts kept by Lentz. All moneys or collections received or made by Lentz shall be delivered and paid over to the company as maj^ be required under its said auditing system; provided, however, that Lentz, in case of emergency, may be permitted to draw against his portion of said receipts, but he shall not make more than four draws or requests within any one calendar monthly period.”
Defendant’s evidence further disclosed that in the actual performance of the contract it charged the accounts of its guests for valet service, made the collection, deposited the money in its general banking account and Lentz was permitted to draw on the hotel monthly.
In considering the ruling on the demurrer, we are obliged to consider any evidence introduced by defendant which supplied or tended to supply any deficiency, if such existed, in the evidence of the plaintiff. (Hayes v. Reid, 145 Kan. 51, 64 P. 2d 19.) If the evidence, so considered, was sufficient to establish a prima facie case on the theory of actual or ostensible agency, the demurrer was properly overruled insofar as the subject of agency is concerned.
We think the evidence was sufficient to take the case to the jury on either theory. That a prima facie case of ostensible agency was established we think is clear. (Wilson v. Haun, 97 Kan. 445, 448, 155 Pac. 798; Cummins v. Standard Oil Co., 132 Kan. 600, 296 Pac. 731; Blewett v. Errickson, 134 Kan. 690, 8 P. 2d 357; Richmond v. Clinton, 144 Kan. 328, 58 P. 2d 1116; Manning v. Leavitt Co., [N. H.], 5 Atl. 2d 667, 122 A. L. R. 249; Timmins v. F. N. Joslin Co., 303 Mass. 540, 22 N. E. 2d 76; Restatement, Agency, § 267, and Comment a.) In view of the contract between defendant and Lentz and the manner in which plaintiff’s evidence indicated defendant had operated thereunder, the evidence was likewise sufficient to go to the jury on the theory of actual agency. (Wilson v. Haun; Cummins v. Standard Oil Co.; Blewett v. Errickson, supra.)
Plaintiff’s evidence clearly established that the work in mending the hem had not been done in an ordinarily careful and prudent manner. We may also state defendant’s own evidence was to the same effect.
Defendant next urges plaintiff’s evidence disclosed she was negligent as a matter of law. The contention is based upon a part of plaintiff’s own testimony. It is true she testified the dress looked all right when she put it on. Defendant urges that plaintiff was, therefore, fully aware of the condition of the hem and was required to exercise a degree of care proportionate to the known danger and that she did not do so. The contention emphasizes a portion of plaintiff’s testimony and ignores other portions of her testimony which clearly discloses she was not aware of and did not recognize the dangerous condition until she examined the hem carefully after the accident. Prior to the repair of the dress, the hem was hanging down for a distance of twenty-two inches. It was not hanging down when it was returned to her room the second time and just before she put it on. Moreover, there was evidence at the time of the trial which indicated plaintiff could not see the length of the stitches without her glasses. It is well established that knowledge of danger or threatened danger will not be imputed to one who is deceived by appearances calculated to deceive an ordinarily prudent person. Nor will knowledge be imputed to a person who fails to look for danger which under the surrounding circumstances.he had no reason to apprehend. (45 C. J. 950, § 508.) Plaintiff sent the dress back to have the hem fastened. When it was returned the hem was not hanging down. The person fixing the dress owed plaintiff the duty to exercise reasonable care in properly fastening the hem. The presumption was that such duty had been properly discharged and plaintiff was not obliged to anticipate negligence in the repairing of the hem. (20 R. C. L. 117.) Plaintiff testified she relied upon defendant to do the mending in an ordinarily prudent manner. It could not be said, as a matter of law, she was guilty of contributory negligence in failing to inspect carefully that which she had a right to assume would be properly done. (Upham v. Head, 74 Kan. 17, 20, 85 Pac. 1017.)
Defendant next urges the demurrer should have been sustained because an accident could not reasonably have been anticipated from the manner in which the hem was fastened. The demurrer was not general but specific in character and the point now urged was not included therein. The question is therefore not properly before us. We might, however, state if plaintiff’s evidence was weak or inadequate in this particular, the deficiency was supplied by defendant’s own witness, an expert on women’s clothing. Rose Givinty, in charge of the alteration department in a Wichita store, previously had been engaged in manufacturing and repairing women’s garments. She was asked by defendant’s counsel if the bottom of the dress was from eight to ten inches from the floor, whether the length would increase the possibility of plaintiff catching her heel in the hem while descending the stairs. The heels of plaintiff’s shoes were described as being approximately two and one-half to three inches tall with small caps. The testimony of the witness was in substance: The longer the dress the greater was the danger of catching it with your heel; the back of the dress lowers as you descend the stairway and you naturally throw your heels back up; if your skirt is of medium length you are likely to throw your heel around the bottom of the skirt and catch it; her own dress was twelve to thirteen inches from the floor and she frequently caught her heel in the hem of the dress; she caught her heel every day in going down stairs; nine times out of ten a woman falling after catching her heel would push the heel clear through the hem; a woman would catch her heel in the hem going down stairs unless the dress was very short. She went up and down stairs in the alteration department fifty times a day; she even caught her hem when she tried to avoid it; the matter of women catching the hem of a dress with their heels was a frequent incident in her experience.
Plaintiff (appellee) states the trial court, refused to instruct on actual agency on the theory it was inconsistent with ostensible agency and she asks us to decide that question in order that the parties and the court may have the benefit of our decision in the event of a retrial. The issue is really not before us. The demurrer was properly overruled if plaintiff’s evidence was sufficient upon any theory of agency. The instant appeal is not from instructions but from the ruling on the demurrer. In passing, we may observe plaintiff had the right to plead both actual-and ostensible agency in her petition. If either was established it would support a judgment. (Blewett v. Errickson, 134 Kan. 690, 694, 8 P. 2d 357.) If a prima facie case was not made on the theory of actual agency, she still had the right to rely upon ostensible agency as pleaded in her petition and reply. Ostensible agency was pleaded in the reply as an estoppel against defendant to deny agency. As to plaintiff, a third party, the distinction between actual and apparent or ostensible agency is really unimportant as the liability of the principal is the same in either case. (Wilson v. Haun, 97 Kan. 445, 448, 155 Pac. 798.) If, however, the jury, after hearing defendant’s eAfi-dence, concluded there was no ostensible agency, then it would have been obliged to determine whether actual agency existed. The jury should, therefore, have been instructed upon that subject. Plaintiff might have endeavored, under the pleadings, to establish only actual agency in her case in chief and might have introduced eAddence on ostensible agency only in rebuttal and for the purpose of estoppel. Plaintiff by her pleadings in effect says Lentz Avas defendant’s agent, actually and ostensibly, but if not actually he nevertheless AAras ostensibly, and defendant is estopped by its conduct to deny agency. In an action of this kind we fail to see Iioav actual and ostensible agency constitute inconsistent positions.
The demurrer to plaintiff’s evidence was properly overruled. Ordinarily there is no material difference between a ruling on a demurrer to the sufficiency of evidence and a ruling on a motion for a directed verdict. (Eckl v. Brennan, 150 Kan. 502, 506, 95 P. 2d 535.) In. the instant case defendant’s evidence actually strengthened plaintiff’s case in certain particulars. There was competent evidence from which a conclusion could be draAvn by the jury in favor of plaintiff’s contention and the motion for a directed verdict was also properly overruled. (Flentie v. Townsend, 139 Kan. 82, 30 P. 2d 132.)
The rulings on the demurrer and on the motion for a directed verdict are sustained. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This was a criminal prosecution for the killing of a man and his wife on a public highway a short distance east of Lawrence, and it is the second appearance of the case in this court. Defendant has again been convicted of manslaughter in the fourth degree and sentenced accordingly. The evidence was substantially the same in the second trial as in the first, so the comprehensive statement of the case in our first opinion, written by Mr. Justice Hoch, will suffice for the purpose of this review. (State v. Phelps, 151 Kan. 199, 97 P. 2d 1105.)
The first error complained of is directed against the instructions given and refused. Defendant contends that the instruction on manslaughter in the fourth degree was incorrect, but he does not show in what respect it is faulty. It included the substance of the statute (G. S. 1935, 21-420), which declares that every killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not manslaughter in some other degree, shall be deemed manslaughter in the fourth degree. Following that statement, the court-defined the terms “manslaughter,” “culpable negligence,” and “negligence.” This was in accord with the authorities quoted in State v. Custer, 129 Kan. 381, 282 Pac. 1071, and conformed with the rule applied in State v. Gloyd, 148 Kan. 706, 84 P. 2d 966, and State v. Phelps, supra. There is no analogy between the facts of the instant case, nor the pertinent law relating thereto, and State v. Bowser, 124 Kan. 556, 261 Pac. 846, to which counsel for defendant direct our attention.
Complaint is made against the trial court’s instruction dealing with the issue of alleged negligent operation of the automobile in which the two victims of the tragedy were riding. The court told the jury that —
“The question of whether or not the car in which the deceased persons were riding was operated in a negligent manner is entirely proper for you to consider in determining what your verdict should be, but the fact, if it be a fact, that such car was negligently driven does not constitute a defense to any of the crimes charged if upon the whole you are satisfied, beyond a reasonable doubt, that the defendant, Phelps, is guilty either of manslaughter or of reckless driving as defined in section 8-531, R. S., or negligent homicide in violation of section 8-529 (G. S. 1939 Supp.).”
The trial court was not required to put all the pertinent law of the case into one paragraph of its instructions, and the part just quoted was both pertinent and proper.
Another criticism of the instructions is that they did not fully cover defendant’s theory of the case — that the court failed to advise the jury that the negligence of Brown (the deceased, driver of the other car) should be taken into consideration in arriving at their verdict of the guilt or innocence of defendant. This criticism is not good; the point contended for was fairly covered by other instructions needless to quote; but the court’s 13th instruction is worth repeating:
“The instructions in this case attempt to cover the situation as a whole and are somewhat disconnected in order that they may cover the various questions presented. However, no single observation should be singled out and made the basis of your verdict without reference to the others, for the reason that they should be considered as a whole and applied as a whole.”
It is next argued that the court should have instructed the jury that it was not unlawful for the appellant to turn out to the left to pass the ear ahead of it, “as the road . . . was practically level for several hundred feet.” But the road was not level; there was a “dip to the east,” and appellant did not know of this dip. When one is unfamiliar with the road on which he is driving in the nighttime, he cannot with impunity take chances on mere appearances and drive ahead without regard to the possibility of causing death or injury to other persons on the highway. Two people died because defendant sought to pass another car on the highway without being well assured that he had time and distance to do so without danger to the lives and limbs and property of others.
It is also contended that the court submitted the case to the jury on the theory that there were two offenses committed, when, if any, it was but a single offense. This general theme was discussed at length in State v. Taylor, 138 Kan. 407, 26 P. 2d 598. See, also, 20 A. L. R. 341-351, 113 A. L. R. 222-228. Here the trial court refused to give this requested instruction.
“You are further advised that while the defendant is charged in the information on two counts [one for the death of Mr. Brown and the other for the death of Mrs. Brown], nevertheless, if you should find the defendant guilty of manslaughter, he can be found guilty only on one count; that matter I will take care of in the forms of verdict submitted to you.”
However, following verdict of conviction, sentence for a single offense of manslaughter in the fourth degree was imposed, and it is not discernible how defendant could have been prejudiced by the refusal to give the instruction requested. (State v. Emory, 116 Kan. 381, 383, 226 Pac. 754.)
The next error urged is on the overruling of the demurrer to the state’s evidence and the court’s refusal to instruct the jury to return a verdict of not guilty. It is argued that the killing of Mr. and Mrs. Brown was “nothing more or less than an accident.” A patient reading of the record does not support that view — certainly not to the extent that the trial court should have taken the case from the jury. x
The next error assigned is merely a reargument of the evidence, from which it is contended that the court should not have approved the verdict. No shadow of error appears on this point.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by the railroad company against the board of county commissioners of Atchison county, the county treasurer, and T. J. Emlen, to recover $184.34, alleged to have been illegally exacted from the company as taxes. The petition alleged that the company owned and operated a line of railroad through Atchison county in the year 1886; that its property was assessed in the sum of $189,-067; and that a levy was made upon the property of 1 mill on the dollar for county bridge tax, which was in addition to the levy of 10 mills on the dollar made that year for current expenses. It was further alleged that the levy of 1 mill for county bridge purposes was not authorized by a vote of the people, or by law, and was excessive, illegal, and void. It was further stated that T. J. Emlen, the county treasurer, proceeded to collect the tax from the plaintiff on December 17, 1886, and the plaintiff, being desirous of paying the full amount of all taxes legally due from it in the said county, notified the treasurer in writing that the sum of $189.06 was illegal, and protested against the payment thereof on account of the illegality; that the plaintiff paid all legal taxes then due from it to the county, but the treasurer refused to give his receipt in full for the taxes due unless the plaintiff should also pay the illegal tax, less the amount of rebate allowed by law. It is then alleged that “the plaintiff, protesting as aforesaid, involuntarily, and under immediate and urgent necessity, paid to said treasurer the sum of $184.34 for such illegal taxes, being the amount of $189.06, less the rebate allowed by law, $4.72, and plaintiff made such payment solely to avoid the issue of legal process for its collection.” The protest referred to is as follows:
“The Atchison, Topeka & Santa Eé Eailroad Company hereby notifies you that the amount legally due by said company as tax on the personal property in your county for the year 1886 does not exceed the sum of $6,428.33, which sum you have refused to receive; and that said company pays the sum of $222.48 demanded by you, protesting against the illegality thereof, and solely to avoid the issue of legal process for its collection.
“And said company further notifies you, that it will hold you and your county liable for the excess above the amount legally due; that you are not to disburse or part with such excess, and that said company will sue you and said county for its recovery.
“Dated this 17th day of December, 1886.”
The defendants jointly demurred to the plaintiff’s petition, and the demurrer was sustained, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiff standing upon its petition, the action was dismissed by the court; and of these rulings the plaintiff complains.
According to the allegations of the plaintiff, the bridge tax was unauthorized and illegal. The cost of the bridge is not stated; but if it was less than $200, no appropriation could, be made by the board; if more than $2,000 was to be expended, an affirmative vote of the people was necessary, which was not given; and if less than $2,000 and more than $200 was to be expended, payment must be made out of the fund provided for the current expenses of the county. (Gen. Stat. of 1889, ¶¶ 502, 507, 513.) In this case, the county undertook to make payment under the latter provision, and out of the county fund, without a vote having been had authorizing it, and when the levy for bridge purposes was in excess of that authorized by law. Already there had been levied 10 mills on the dollar for the current expenses of the county; and this being the full limit authorized for that purpose, the added mill tax for bridge purposes must be held excessive and void. (A. T. & S. F. Rld. Co. v, Wilhelm, 33 Kas. 206.)
It is contended that the tax, although illegal, was paid voluntarily, and under such circumstances that it cannot be re covered back. Payment was made on the 17th of December, when the plaintiff endeavored to pay the legal taxes charged against it, but the county treasurer refused to accept any sum unless the illegal tax was also paid. A written protest was made by the plaintiff, which pointed out the amount legally due, and gave notice that payment of the illegal portion was only made to avoid the issue of legal process to collect it; and further, that an action would be brought to recover the excess. Under the reasoning and authority of K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kas. 587, the payment was involuntary as to one-half of the taxes that were paid. The allegation with reference to payment of the illegal tax, as well as the protest and notice, is substantially the same in this case as in the Wyandotte ease. The plaintiff in this case seems to have, “used the Wyandotte case as a guide for its action;” and, following the rule there announced — the argument to sustain which it is unnecessary to repeat — we are compelled to hold that the December payment, or one-half of the taxes charged and payable on or before the 20th of December, is recoverable. The payment of the remaining half, however, cannot be held to be voluntary. The plaintiff was not compelled to pay more than one-half of the taxes prior to December 20. It was optional with it to pay the whole or the half. By paying the whole of the taxes before December 20, it received a rebate of 5 per cent, on the amount charged against it. The advanced payment so made to obtain a discount or a rebate was for its own benefit, and as no compulsory process could have been issued nor any legal steps taken to collect the tax until the following June, the payment of the June half of the taxes in December is voluntary, and cannot be recovered. The ruling of the district court, however, denied the right of recovering any portion of the taxes, and for that reason its judgment must be reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 11th day of March, 1891, W. W. Martin was appointed by Hon. Lyman U. Humphrey, as governor of the state and by the state senate, then assembled, confirmed as agent of the state, to prosecute the claims of the state against the United States, pursuant to an act of the legislature of the state, approved March 3, 1877, chapter 176, Laws of 1877, (¶¶ 5932-5935, Gen. Stat. of 1889.) After his confirmation, W. W. Martin was commissioned by the governor as agent. Subsequently, and before the commencement of this action, he requested the governor, the auditor and the attorney general to enter into an agreement with him as to what his compensation as such agent should be under the provisions of §§3 and 4, chapter 176, Laws of 1877, (¶¶ 5934 and 5935, Gen. Stat. of 1889.) The officers refused to enter into any agreement or contract. This is an original proceeding in this court to compel the governor, the auditor and the attorney general of the state to enter into a contract with W. W. Martin, as requested. At the session of the legislature 'of 1891, chapter 182 of the Laws of 1872, relating to the salaries of state officers, judges, and officers of the legisiature, was repealed. An attempt was also made to repeal §§ 3 and 4, chapter 176, Laws of 1877, ¶¶ 5934 and 5935 of the Gen. Stat. of 1889. (Laws of 1891, ch. 181, § 17.) The title of said chapter 181 reads: “An act to establish the salaries of state officers, their assistants and clerks, judges, officers and employés of the legislature.” The* title is very similar to the title of an act of the legislature approved March 2, 1868, and amended by chapter 182, Laws of 1872. The contention is, that there is nothing in the title of chapter 181, Laws of 1891, that refers in any way to the state agent, or te his salary or compensation, and therefore that the part of § 17 of chapter 181, Laws of 1891, which attempts to repeal ¶¶ 5934 and 5935, Gen. Stat. of 1889, is unconstitutional. The following authorities are cited: The State v. Barrett, 27 Kas. 213; Harlan v. Territory of Washington, 3 Wash. Ter. Rep. 131. We do not think it necessary to pass upon the constitutionality of the part of § 17, chapter 181, Laws of 1891, referred to.
At the session of the legislature for 1879; the following statute was passed:
“ Every officer or agent of the state who shall be empowered to expend any public moneys, or to direct such expenditures, is hereby prohibited from making any contract for the erection or repair of any building, or for any other purpose, whereby the expenditure of any greater sum of money shall be contemplated, agreed to, or required, than is expressly authorized by law.” (Laws of 1879, ch. 166, § 132, March 20th; Gen. Stat. of 1889, ¶ 6674.)
Subsequently the legislature adopted chapter 103, Laws of 1886. The title is as follows: “An act relating to state officers and agents, and defining certain crimes and providing punishment therefor.” Section 1 reads:
“ That any officer or agent of the state who shall be empowered to expend any public moneys, or to direct such expenditures, is hereby prohibited from making any contract for the erection or repair of any building, or for any other purpose, whereby the expenditure of any greater sum of money shall be contemplated, agreed to, or required, than is expressly authorized by law; and any officer or agent of the state violating this law shall be deemed guilty of embezzlement of the amount in excess of that expressly authorized by law, and upon conviction shall be punished by confinement and hard labor not exceeding five years, or in the county jail not less than six months.” (Gen. Stat. of 1889, ¶ 6675.)
No appropriation was made by the legislature in 1891 to pay for the services of the state agent. The appropriations heretofore made for such an agent have been exhausted. If the agent is to receive any compensation, it must be paid by the treasurer upon warrapts of the auditor. Such payment, cannot be made without a specific appropriation. (Martin v. Francis, 13 Kas. 22; The State, ex rel., v. Stover, ante, p. 119.) It is doubtful whether any part of the lands granted by the United States to the state for school purposes can be used or appropriated for any other than school purposes. (Const., art. 6, §3.) It has been the practice to pay the state agent in money, even for any lands secured, notwithstanding the words, of the statute. Lands are not given for the services of the-agent. The state agent can proceed in the performance of his duties under his appointment, and it will be presumed that the legislature will properly compensate him for any services^ valuable or useful to the state, which he may render. Even if a contract were entered into between the state agent and the governor, auditor, and attorney general, it could not be enforced by mandamus, nor could damages be recovered from the state, or the officers of the state, for any breach theréof. Such a contract, even if entered into, would be of no value, unless the legislature should make a specific appropriation to carry out its terms. This court will not compel by mandamus a useless or vain thing to be done.
In the absence of an appropriation by the legislature to pay the compensation of the state agent, even if it were ruled that §17 of chapter 181, Laws of 1891, repealing ¶¶ 5934 and 5935, were unconstitutional, we would not compel any contract to be entered into or agreed upon. Without any specific appropriation therefor, the spirit, if not the letter, of § 132, chapter 166, Laws of 1879, and § 1, chapter 103, Laws of 1886, would be violated or impinged on by the execution of the contract demanded. Paragraph 5934, Gen. Stat. of 1889, provides that “Such agent shall be allowed such compensation for his services as may be agreed upon between the governor, auditor and attorney general of the state and himself, not to exceed 10 per centum upon the amount [of money] secured to the state.” No appropriation having been made to pay for such compensation, the officers of the state cannot bind the state or the legislature by any contract. Said ¶ 5934 permits a contract to be made, but there is no fund from which any compensation can be paid, and therefore the compensation is not expressly authorized or provided for by law; at least, no money is supplied or appropriated to pay any compensation to the state agent.
The peremptory writ will be' denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Upon the original hearing, no argument or appearance in behalf of the defendant was made; but upon this application for a rehearing the defendant appears by his counsel and insists that the information filed against him is inadequate in its averments, and fatally defective in not charging a culpable intent. It is stated, in substance, that he was the city clerk of El Dorado, and that he unlawfully and feloniously registered J. N. Hanna as a qualified voter, when Hanna did not appear in person, or was not present in the office of the city clerk, giving his name, occupation, and place of residence, as the statute directs. It is stated that, at the hearing of the motion to quash, the county attorney informed the court “that there would be no effort made to show any fraudulent intent on the part of the defendant in the simple act of registering J. N. Hanna, who was at that time a resident, and otherwise a legal and qualified elector in the city of El Dorado, but who did not appear in person before said clerk on the day on which he was registered.” It is also stated that the district court held that, unless “the defendant by his act intended to commit some wrong, either in registering a person not entitled to vote, or intending to injure or defraud a person with a right to vote out of his vote, or intending to injure or defraud some candidate before the election, that the defendant would not be guilty of violating the law;” and as none of these things were contended for by the prosecution, the motion to quash was sustained.
It is earnestly contended that it was not within the legislative intent to punish as for a felony every omission or failure of the officers to carry out the minute and minor details of the registration act, and that, although the prohibition of the act was general in its terms, it fairly embraced only the mischiefs which the enactment was intended to prevent. It is therefore urged that the information should contain statements showing a culpable intent on the part of the defendant to defeat the obvious purpose of the statute, or allegations of some acts or omissions of the defendant of a substantive character, necessarily resulting in the wrong or injury which the legislature intended to suppress. The writer hereof is now inclined to think that the allegations of the information are insufficient, but the majority of the court are of opinion that the language of the charge stating that the act was unlawfully and feloniously done characterizes it as a' crime, and therefore the information is not so inadequate in statement as to be fatally defective. The court, however, does not decide, as counsel seem to think, that every departure from the letter of the statute comes within its prohibition and penalty, and therefore the hardships which counsel imagine will result from the enforcement of the act do not exist. It is true that the language of § 15 is sweeping in its terms, and, if construed with literal severity, would embrace the slightest departure from any direction or detail which the statute contains, however innocent and harmless the act or omission of the officer might be. It is evident from the provisions and penalty of the act that such was not the purpose of the legislature. The act is a general one, giving specific and minute directions and details as to the preparation for and the regulation of the registration of voters in cities of the first and second classes. Minute directions are given as to the various steps to be taken and the manner thereof, some of which are very important, while others are of less importance; and at the end of the chapter it is provided that if any officer shall neglect or refuse to perform any act required by the statute, and in the manner required by it, he shall be guilty of a felony, and punished by confinement and hard labor in the penitentiary, as well as to forfeit the office which he then holds. The legislature doubtless intended to impose upon the officers a faithful observance of the provisions of the act, with a view of carrying out its purposes; but it will hardly be contended that the legislature intended to visit so severe a punishment upon an 1 1 officer free from any wrong intent, for some slight departure from an unimportant detail of the law, which does not and cannot operate to defeat its object. We may properly look at the mischief proposed to be remedied, and to some extent the severity of the penalty imposed, in determining the true legislative intent in framing the act.
It has been held that the purpose of the registration act is to preserve the purity of the ballot-box, by ascertaining in advance, by proper proofs, who are entitled to vote at an election, thus securing, ten days before the election, the full registry of all persons entitled to vote, which registry can be examined and scrutinized by any interested party. (The State v. Butts, 31 Kas. 537.) Any substantive act or omission of an officer which appears to operate to defeat this purpose comes within the prohibition and penalty of the statute, but a strict ■ compliance with a minor detail that could have no such effect was not intended to be punished as a felony. For instance, the act provides that, on January 1st of each year, the mayor and council shall procure and open a poll-book for each ward in the city. Would the inadvertent omission to furnish a poll-book until the following day subject these officers to imprisonment in the state penitentiary? The statute further provides that the poll-books shall at all times be kept in the office of the city clerk. If the clerk should take one book out for repairs after office hours, and return it in time for the opening of business the next morning, would he be liable to a felon’s punishment ? Again, the act requires that the books shall be open at all times during the year, except for 10 days preceding the election; but it will not be contended that the clerk must keep them open during the night-time, or be held liable to the rigorous penalties of the act. This is the more apparent, for another section provides for registration during the usual office hours. If the clerk, as a matter of courtesy and accommodation, should remain in his office a short time beyond the usual office hours, and should then register legally-qualified voters, would he- be held liable to the penalties of the law ? He is required to enter the names of the persons registered in alphabetical order; but if he should, by mistake, fail to enter a name in that order, he would hardly be guilty of felony, although the work was not done in the manner provided in the act. It is also provided that no person shall be registered unless he appear in person at the city clerk’s office and apply to be registered; but if a qualified voter who was an invalid was driven in a carriage to the city clerk’s office, but was un able to enter there, and should call the city clerk out in the street, or should chance to meet him in the street and there apply to be registered, and the city clerk, knowing that he was unquestionably a qualified voter, should register him, would this deviation from the strict letter of the statute be within the severe penalties provided in § 15 ? We think not. These and many other like acts and omissions are within the letter of the statute, but manifestly the legislature did not contemplate that such acts or omissions should be punished as felonies. A departure from some directory provision, made without fraudulent intent, and which in its nature and effect cannot injure anyone or operate to defeat or interfere with the purpose of the act, cannot be regarded to have been in the mind of the legislature iu prescribing the penalties of the act. Although such departure appears to be within the strict letter of the act, a consideration of the mischief intended to be prevented, the remedy proposed, and the punishment provided, indicate clearly that such was not the intention of the makers of the statute. It has already been held that, when the intention of the legislature can be discovered, it should be sensibly followed, although such interpretation may seem contrary to the letter of the statute. (Intoxicating Liquor Cases, 25 Kas. 751, 762.)
The motion for a rehearing will be denied.
Horton, C. J., concurring. | [
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Opinion by
Strang, C.:
The information in this case charged Sim Irvine and Mary McLaughlin with the unlawful sale of intoxicating liquors, in three separate counts, and with keeping and maintaining a nuisance, in a fourth count. The defendant Mary McLaughlin demanded a separate trial, which was allowed, and the case is brought here as to her alone. The defendant moved that the fourth count be stricken out of the information. This motion was overruled, and the case went to trial on all four counts of the information. The defendant was acquitted on the first count and convicted on the other three. She moved for a new trial, which motion was overruled, and she brought the case to this court, and asks that the judgment of the court below be reversed for the following reasons:
I. The defendant, alleges that it was error for the court to permit the joinder of the fourth count of the information, which charges the offense of maintaining a nuisance, with the other counts thereof, each of which charges the offense of illegally selling intoxicating liquors. Each of the counts in the information charges a misdemeanor, and each of the misdemeanors charged is of a kindred nature and grew out of vio lations of different sections of the same statute, relating to the same subject-matter, and, whether tried jointly or separately, must be tried in the same way, and largely upon the same evidence. We know of no reason, therefore, why they should not be joined, but on the other hand, think, because they must largely depend upon the same evidence in the trial thereof, that it is not only allowable to join them in the same information, but quite proper to do so. The reason assigned by the defense against the joinder of the fourth with the other counts in the information is, that the defendant is put at a disadvantage by such joinder in this, that the evidence introduced is used to convict the defendant of two separate and distinct offenses at the same time. It is true that evidence introduced for the purpose of proving the charges in the counts alleging illegal sales may at the same time be competent to prove, and be relied upoij to establish, the allegations contained in the fourth count, which charges the maintenance of a nuisance. But we see no disadvantage in this to the defendant, since, if the counts charging illegal sales and the one charging the maintenance of a nuisance were separated, and the nuisance count was tried by itself, the same evidence used to prove the charges of illegal sales, in the trial of the case on the information containing the counts alleging such sales, could and would be resorted to for the purpose of sustaining the charge of maintaining a nuisance, on the trial of the case on the information containing such charge. The result, therefore, would be two formal trials, when one would secure the same purpose.
The defense also insists that there is nothing in the affidavits of witnesses filed with the information to justify a warrant for the arrest of the defendant upon the charge of maintaining a nuisance, and as the information is sworn to by the county attorney upon information and belief only, there is no foundation for the prosecution of the defendant on the fourth count, and the motion to strike it from the information should have prevailed. The affidavits do not specifically charge the maintenance of a nuisance, but they contain allegations of all the elements necessary to the offense of maintaining a nuisance. They show the keeping and sale of liquor at a certain place in violation of law, and allege that the place is kept by the defendant and Sim Irvine. We think the evidence filed by the county attorney with the information sufficient, together with the oath of the county attorney, to justify the warrant on the charge contained in the fourth count of the information.
II. The second alleged error of the trial court consists in the reception thereby of evidence, over the objections of the defendant. We think these objections were based upon an imperfect comprehension of the scope of the evidence filed with the information. This evidence is very broad, and an examination thereof, together with the evidence objected to, satisfies us that there is no substantial error in the ruling of the trial court in relation thereto. The defendant objects to the sixth instruction, and says it is not warranted by the testimony of Scully filed with the information, nor by his evidence on the trial of the case; that it does not appear that he purchased or obtained any liquor from the defendant on the 15th of February, 1891. It is true his statement filed with the information, and his evidence on the trial, shows that he got the liquor of Sim Irvine. But the statements filed with the information show that Sim Irvine and the defendant together kept the place where the liquor was obtained, and the evidence on the trial of the case conclusively shows not only that the business carried on at the place described in each of the counts of the information, and in the evidence filed therewith, was the joint business of the defendant and Sim Irvine, but that they were jointly concerned in the conduct thereof. Sales were made by each in the presence as well as in the absence of the other. It being true, as the evidence conclusively shows, that the defendant owned the place where the business was carried on, and had a joint interest with Sim Irvine in the liquors kept and sold, and personally joined in the sale thereof, she not only approved and ratified all the sales made by Irvine, but was equally responsible under the law with him for the sales made by him. It follows, therefore, that she was responsible for the sales by Irvine to Scully, and the evidence of such sales was properly admitted to establish the charge against her, and the sixth instruction was supported by the evidence, and the defendant was properly convicted on the third count.
We do not think there is any substantial error in the eighth instruction. The first clause of the eleventh instruction as an abstract statement of the law is incomplete, but, when considered in the light of the evidence in the case, we do not think this part of the instruction contains any material error. The jury could not have been misled to the injury of the defendant, because, as above stated, the evidenceiconclusively shows that the defendant not only had a joint interest in the liquors sold, but that such liqors were sold indiscriminately by herself and Irvine for the benefit of both, and therefore sales made by Irvine were authorized by her, which rendered her equally responsible with him for such sales. There is no error in the last clause of the eleventh instruction.
We do not think the first instruction asked by the defendant properly states the law. We think the same evidence may, at the same time, on the same trial, be introduced and considered by the jury, for the purpose of establishing the illegal sales charged in the first, second and third counts of the information, and also for the purpose of proving the charge contained in the fourth count thereof.
We do not think the second instruction asked by the defendant properly states the law, because we believe the proof of continued sales of intoxicating liquor in violation of law by one or more persons, on his or their premises, kept by him or them, is sufficient to establish the fact that intoxicating liquors were kept on the premises for unlawful purposes.
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 Qwriam:
In support of the motion for a rehearing in this case several cases have been cited, notably, Chicago City Railway Co. v. Wilcox, 27 N. E. Rep. 899; Avey v. Galveston &c. Co., 17 S. W. Rep. 31, and other like cases, deciding that where a child of tender years is injured by the negligence of another, the negligence of his parents, even though present at the time of the accident, cannot be imputed to him. Wé may fully assent to all decided in those cases, but that does not change or modify the former opinion handed down. Even if it be conceded that the little boy who was injured is so young in years as to be incapable of such conduct as will constitute contributory negligence, and if it also be conceded that any contributory negligence on the part of the parents cannot be imputed to the boy, these do not supply the place of negligence on the part of the railroad company. If the company was not negligent, it is not liable for damages on account of the injury complained of. The former opinion disposes of the case upon the ground that negligence cannot be imputed to the company. The train was stopped not exceeding a minute, as it approached a railroad crossing within the city of McPherson. Its stop at the railroad crossing was both necessary and lawful, in order to ptevent any collision with other trains which might have been on the Rock Island road. In stopping, no statute or city ordinance was violated or disregarded. The statute recognizes such stops before crossing the track of another company, where the railroad companies have not a system of interlocking or automatic signals. (Gen. Stat. 1889, ¶¶ 1362-1364.) If it be urged that the brakemen or train-men ought to have been at their stations to prevent school children from climbing on or under the cars during the momentary stoppage of the drain, the answer is, that the object of having brakemen upon the train is to enable them to be in a position where they may handle the brakes, give signals, etc. The lookout to be kept by the engineer, fireman and train-men is generally ahead of the train. ' If the boy had been seen upon the ear by the train-men, then it would have been their duty to have exercised proper care in not running over or injuring him. But when a train momentarily stops at a crossing, and the train-men are not needed in the operation of the train at their respective stations, it cannot be said that the company is guilty of negligence because, although the train itself is properly operated, the train-men are not given express instructions to keep away thoughtless children from climbing under or upon the train. If it were the duty of the train-men to keep a lookout to prevent thoughtless children from climbing on or under their train when crossing the public street at a slow rate or when momentarily stopping.in a public street, before crossing another railroad, then the brakemen or train-men, instead of being at their usual or proper places upon the cars to handle the brakes, give signals, etc., should be upon the ground, near by the several cars of the train, watching the cars or patrolling the ground around the cars, to prevent children and others from getting on or under them. The jury do not find that the train-men should have been upon the ground watching or patrolling the train. No such claim is made. If the train had stopped an unnecessary length of time, and become an obstruction upon the street, as in the Pennsylvania case referred to, or if the train in stopping at the street violated any city ordinance, any municipal provision, or any statute of the state, negligence could be imputed, and a liability based thereon.
We repeat what was said in the former opinion. “ We do not think any wrong was shown upon the part of the railroad company.” Negligence against the company was not established, and therefore no liability was shown. The only alleged negligence found by the jury was that the brakemen or train-men were not at their proper places. Nothing else was found. If they had been at their usual or proper places on the cars for the operation of the train, they would not, in the performance of their usual or general duties, have been watch ing, or looking out to prevent children or others from climbing on or under the cars, when the train was in motion, or when it momentarily stopped.
The Henigh case, referred to in the former opinion, differs somewhat from the facts in this case, and we do not base the reversal of the judgment upon that case alone. It was commented upon, but in this case we think no negligence, upon the evidence, can be imputed to the railroad company, and hence the reversal. The finding of the jury that there was negligence is not conclusive. “ If the findings in detail contradict the general finding, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance, where a question of negligence arises in a case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence.” (A. T. & S. F. Rld. Co. v. Plunkett, 25 Has. 188.) Of course, where any finding is contrary to the evidence, such finding is of no value or importance as establishing negligence; and any of the findings of the jury in this case, not supported by the evidence, cannot be used to support a verdict or sustain a judgment. The jury expressly relieved the railroad company from any willful negligence or intentional violence or injury; therefore, from the findings of the jury, it is clearly established that no train-man or other employé of the company willfully or purposely hurt the little boy. • He was not seen climbing on the car, and his imprudence was not expected or anticipated.
The rehearing will be denied. In No. 5665, same title, under the above and foregoing opinion, the rehearing will also be denied. | [
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Opinion by
Green, C.:
This was an appeal from an award of condemnation- proceedings to the district court of Saline county. One dollar was awarded as damages to the owner of the northwest quarter of the southwest quarter of section 5, township 14, range 2 west, in Saline county. A public highway runs through this land, and just north of it the track of the Union Pacific railway was located. The plaintiff' in error built its railroad on this public highway, and condemned the interest of the owner in the public highway. Before the construction of its railroad the company-laid out a public highway north of the Union Pacific track, and paid the defendant in error for the laying out of the highway through his land, and concerning this there is no controversy. That part of the highway where the railroad was constructed was not vacated. Upon the trial of the casejin the district court, the jury returned a verdict in favor of the plaintiff for $425.60. The plaintiff in error brings the case here; and the first error assigned is in the admission of certain evidence upon the trial below. Complaint is made of the following question:
“Now, imagine the railroad built there, with its most injurious consequences; both railroads, the Santa Fé and the Rock Island: what, in your judgment and opinion, was the land worth per acre immediately after the building of those roads?”
This question was objected to as incompetent, irrelevant, and immaterial, which was overruled, and excepted to. The witness answered: “Well, I should think it would make considerable difference in the value of the land, to me, any way.” The answer given by the witness was not responsive to the question, and should have been stricken out, but that was not asked. The question was not in fact answered; what witness did say was immaterial error, and was not sufficiently prejudicial to justify a reversal of the case. No objection or exception was made to the next question and answer, and we cannot consider the assignment of error based upon that evidence.
It is claimed that the court erred in permitting the report of the condemnation proceedings of the Chicago, Kansas'& Nebraska Railway Company to be introduced in evidence. The evidence that a double track was laid on the right-of-way for both railroads, under the condemnation proceedings of the plaintiff in error, was, we think, competent. The evidence established the fact that the land in question was not embraced in the condemnation proceedings of the former railroad; that whatever was being done there was under the authority and direction of the plaintiff in error. We think the evidence was competent.
It is insisted that the court erred in permitting evidence to be introduced to show why the highway on the south side of the railroad track was not vacated by the board of county commissioners. We fail to see how this evidence could prejudice the plaintiff in error. The evidence may have been immaterial, but did not prejudice the rights of the railroad company.
Our attention is next called to the following instruction:
“The constitution of the state of Kansas provides that a railroad company must pay for its right-of-way over the premises of an individual, irrespective of any benefits that may accrue to the land-owner by reason of the proposed improvements. Therefore, you cannot take into consideration any benefits that may accrue to the plaintiff by reason of changing the public highway from the south side to the north side of the Union Pacific railroad.”
Section 4 of art. 12 of the constitution says:
“No right-of-way shall be appropriated to any corporation until full compensation therefor be first made in money, irrespective of any benefit from any improvements proposed by such corporation.”
This section of the constitution has been frequently construed by this court, commencing as far back as the case of Railroad Co. v. Orr, 8 Kas. 419, and extending down to L. & W. Rld. Co. v. Ross, 40 id. 598; and the court has universally held that a railroad company must make full compensation for the right-of-way appropriated, irrespective of any benefits or supposed benefits from the construction of the road, or any improvement thereby. Tried by this rule, which is supported and sustained by the 7 x x # . decisions of other states with similar constitutional provisions, we think the instruction was not. misleading or erroneous.
The last contention of the plaintiff in error is, that the damages awarded by the jury are excessive. The witnesses fixed the value of the land taken at from $100 to $125 per ácre. The railroad occupied 1^¡- acres, and the jury awarded $129 as the actual market value of the land taken, without reference to any damages to the remainder of the land. It is argued that, because the highway was not vacated, no compensation should have been awarded for the right-of-way at all, for under the statutes of this state, the railroad company had the right to construct and operate its railroad upon the public highway; that one of the uses to which it may be put is the construction and operation of a railroad along and upon the same. We are not prepared to subscribe to this principle. While the adjudicated cases are not uniform, the weight of authority is in support of the rule that the construction of a railroad along a highway imposes an additional burden, and constitutes a taking, within the constitution. The following cases hold that a railroad is not one of the legitimate uses of a highway, and for such an occupation there should be additional damages awarded to the adjoining owner: S. P. Rld. Co. v. Reed, 41 Cal. 256; Imlay v. U. B. Rld. Co., 26 Conn. 249; S. C. Rld. Co. v. Steiner, 44 Ga. 546; Cox v. Louisville Rld. Co., 48 Ind. 178; Stange v. City of Dubuque, 62 Iowa, 303; Kucheman v. C. C. & D. Rly. Co., 46 id. 366; I. B. & W. Rld. Co. v. Hanley, 67 Ill. 439; Phipps v. W. M. Rld. Co., 66 Md. 319; Springfield v. Conn. Rld. Co., 58 Mass. 63; Y.R. & Ind. Rld. Co. v. Heisel, 47 Mich. 393; Harrington v. St. P. & S. C. Rld. Co., 17 Minn. 215; H. & G. I. Rld. Co. v. Ingalls, 15 Neb. 123; Williams v. N. Y. C. Rld. Co., 16 N. T. 97; Fanning v. Osborne, 34 Hun, 121; Chamberlain v. Cordage Co., 41 N. J. Eq. 43; Rld. Co. v. Williams, 35 Ohio St. 168; Mills, Em. Dom., §32; Lewis, Em. Dom. 111.
The jury allowed $280 damages to the land — $230 to the land south of the railroad and $50 damages to the land north of the track of the Union Pacific railroad. The different elements of damages the jury subdivided as follows: Danger and inconvenience of crossing, $100; danger to stock from the south side of the track, $100; and from accidental fire, $80. While the damages allowed seem large, there was evidence to support the findings of the jury. Each item appears *° be a Proper element of damages. It is proper, ;n estimating damages, to take into consideration the exposure of the remaining land to fire from the company’s trains or engines, set out by the railroad company, without fault, by reason of the operation of the road through the premises. (K. C. & E. Rld. Co. v. Kregelo, 32 Kas. 608.)
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
Valentine and Johnston, JJ., concurring.
Horton, C. J.:
Upon the trial of this case in the district court, the jury returned a verdict in favor of the land-owner for $425.60.
The court instructed the jury, among other things, as follows:
“The constitution of the state of Kansas provides that a railroad company must pay for its right-of-way over the premises of an individual, irrespective of any benefits that may accrue to the land-owner by reason of the proposed improvements. Therefore, you cannot take into consideration any benefits that may accrue to the plaintiff by reason of changing the public highway from the south side to the north side of the Union Pacific railroad.”
This instruction had no application in this case, because it was not alleged, claimed or proved that, in the construction of the track or railroad, the land-owner derived any benefit. But the instruction was misleading and prejudicial, because it prevented the jury from considering the benefits which the land-owner obtained from the highway upon the north of the Union Pacific. This was not an improvement from the construction and operation of the railroad, but was intended to be an improvement for the special benefit and convenience of the land-owner, and also for the use of others who desired the highway.
There was evidence tending to show that the larger tract of land, to which damages are claimed, was north of the Union Pacific railroad; and one witness testified that it was better to have the highway north of that road than south of it. Even if this road had not been paid for and constructed by the railroad company, the court ought not to have taken from the jury by an instruction the consideration of the convenience and benefits of this road, in view of the fact that the highway south of the Union Pacific track was partially occupied by the railroad company of which complaint was made. Before the land was taken or condemned for the right-of-way of the C. K. & W. Railroad Company, the tract was divided by the U. P. railroad. About 12 acres lay south, and some 20 acres north. The house referred to in the evidence was not upon the tract of land in controversy, but about a quarter of a mile west of the land. This belonged to other parties. The witnesses fixed the value of the land actually taken for railroad purposes by the C. K. & W. Railroad Company at from $100 to $125 per apre. The company condemned l-j^ acres. For this the jury awarded $129, as the market value of the land. The land taken was upon the highway, just south of the Union Pacific, which was not vacated, and yet the jury allowed nearly full value for the land — the same as if no highway had been established or existed; as if the land was without any incumbrance, and subject to no easement. These large damages, I think, were the result of the immaterial evidence admitted, against objections, tending to show why the highway on the south side of the railroad track was not vacated by the board of county commissioners, and the misleading instruction referred to. The highway was not vacated, and the evidence concerning the talk about its non-vacation was not only immaterial, but prejudicial. The erroneous evidence and improper instruction were the more harmful because of the great conflict in the evidence. It appears that several witnesses, some six in number, acquainted with the premises appropriated, testified on behalf of the railroad company that the value of the tract of land was the same after as before the construction of the railroad.
On account of the error in the admission of evidence, and the giving of an instruction which was misleading and prejudicial, I believe the judgment of the district court should be reversed, and the cause remanded for a new trial. | [
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The opinion, of the court was delivered by
Johnston, J.:
Frank E.'Johnson brought this action against the Wichita & Western Railroad Company to recover damages for personal injuries alleged to have been negligently inflicted by the company. It appears that about two miles southwest from Wichita there is a grade crossing, at almost right angles, of the railroads of the Wichita & Western Railroad Company and the St. Louis, Fort Scott & Wichita Railroad Company. On the night of December 24, 1888, while a passenger train of the St. Louis, Fort Scott <fc Wichita Company was passing over the crossing, a freight train of the Wichita & Western Company ran through the train of the former company and destroyed the baggage car, on which Johnson was employed in the capacity of express messenger and baggage master. After the collision Johnson was found some distance away in an injured condition; and he alleges that the collision and injury resulted from the negligence of the plaintiff in error. At the trial, Johnson introduced his evidence and rested, and the railroad company then filed a demurrer, challenging the sufficiency of the evidence, and the court, upon an argument, sustained the demurrer, and rendered judgment for costs in favor of the company. Afterward, the court upon motion granted Johnson a new trial, and of this order the company complains.
It is contended that the motion for a new trial was filed out of time, and therefore the court was without authority to grant it. It is claimed that the record shows the judgment upon the demurrer to have been given on October 25, 1888, and that the motion for a new trial was not filed for five days thereafter, nor until October 30, 1888. The record brought here is somewhat obscure as to when some of the steps were taken in the case. It shows when the demurrer to the evidence was filed, and also when the motion for a new trial was filed, but it does not affirmatively show when the decision upon the demurrer was made. In an entry made on October 31, 1888, it is recited that the case came on to be heard October 25, 1888; then follow recitals of the impaneling of the jury, the introduction of the evidence of the plaintiff, the filing of a demurrer to the evidence, the argument of the same; then that the demurrer was sustained, the jury discharged, and judgment for costs awarded to the defendant; that a motion for a new trial was thereupon filed, giving a copy of the same, on which there is an indorsement that it was filed October 30, 1888. Later, there is an entry that the motion for a new trial was allowed on January 1, 1889. In the entry of October 31, the only date mentioned is October 25, when the trial commenced. If the decision on the demurrer was made on that day, the motion for a new trial was not in time. Some of the language used in the entry, including that referring to the filing of the motion for a new trial, in some degree would indicate that all of the steps were taken on the day mentioned in the entry. But it is clear that the motion for a new trial was not filed on that day; and it appears to us that a fair interpretation of the record is, that the entry contains a recital of all that occurred from the 25th of October, when the trial commenced, until the 31st of October, when the entry was made. If all had transpired on the 25th of October, probably all would have been entered on the journal of that day. The record shows when the demurrer was interposed, but it was probably held under advisement and decided at a later day, prior to October 30, when the motion for a new trial was filed. As there is nothing in the record which affirmatively shows when the decision was made, and as the motion for a new trial was entertained and determine(j by the court, it should be presumed, for the purpose of upholding its judgment, that the motion was filed within three days after the decision was made. If the court had refused the motion, and the record was silent as to the date when the decision was made, it would be presumed by this court, for the purpose of upholding the judgment of the court below, that the motion was not made in time. (Hover v. Tenney, 27 Kas. 133.) So, here, where the date of the decision is omitted from the record, we will, for the purpose of sustaining the ruling of the district court, presume that the decision was made within three days preceding the filing of the motion for a new trial. Error is nevér presumed, but must be affirmatively shown, and in the absence of facts affirmatively showing the decision of the court to be erroneous, we will presume it to be correct.
It is next insisted that there were no reasons which justified the court in granting a new trial. The right to a new trial turns upon the proposition as to whether the evidence offered by Johnson was sufficient to take the case to the jury, over the demurrer interposed by the railroad company, and it is still insisted that it was insufficient. An examination of the testimony, however, satisfies us that this claim cannot be successfully maintained. Upon a demurrer to the evidence, the court must look at the testimony in the light most favorable to the plaintiff, and allow all reasonable inferences in his favor. It “ cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer.” (Wolf v. Washer, 32 Kas. 533; Rogers v. Hodgson, 46 id. 276; same case, 26 Pac. Rep. 732.) Viewed in this light, it is clear that there is evidence tending to establish the issues made by the pleadings, and therefore the demurrer should have been overruled.
There is testimony tending to show that the train on which Johnson was riding was on time; that it was brought to a full stop near the crossing, and the whistle of the engine sounded, while those in charge looked to see if there were any approaching trains on the other road; that they did not see any, and that they then proceeded to cross at a moderate rate of speed, when the locomotive of the Wichita & Western freight train struck the baggage car with great force, knocking it to pieces, and passing on through the passenger train. There is some testimony tending to show that the freight train approached the crossing at a high rate of speed, and proceeded over the crossing without slacking its speed or stopping to ascertain whether it was entitled to pass over the crossing, and thus negligently collided with the train of the other company, which was en titled to the crossing. It is proper to state, however, that some of the testimony is inconsistent with that which has been mentioned, and would tend to show a lack of care on the part of the engineer of the St. Louis, Fort Scott & Wichita train, and still more which in some degree tends to show that the Wichita & Western train stopped and whistled for the crossing, and obtained the right to pass over in advance of the other train. As before stated, however, we cannot weigh the conflicting evidence, and in view of the fact that there is to be another trial, we will not at this time enter upon a detailed examination of that which has been given. It is for preSent to say that there was sufficient testimony to take the case to the jury, and therefore the order of the court granting a new trial will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
William H. Lea filed his bill of particulars against the Missouri Pacific Railway Company before a justice of the peace of Marshall county, asking judgment for $300 for the burning of a hay stack and 10 tons of hay, all valued at $360. He recovered judgment against the railway company, and the case was taken to the district court by appeal. In that court, Lea filed his petition claiming judgment for $360, with interest, and a reasonable attorney’s fee. The railway company filed an answer containing a general denial, and alleging contributory negligence upon the part of Lea. The jury returned a verdict for $207.98 for Lea, but the trial court deducted $21.98 of interest, which was included in the general verdict, and rendered judgment in favor of Lea for $186, and also for $60 attorney’s fee. It appears from the record that the evidence as to the amount of the attorney’s fee was taken from the j ury and passed upon by the court. To this ruling the railway company excepted. The exception ought to have been sustained. “ What is a reasonable attorney’s fee is a question of fact which should be submitted and determined the same as any other fact arising in the case.” (Mo. Pac. Rly. Co v. Merrill, 40 Kas. 404.) The attorney for Lea expressly stated at the oral argument that if the attorney’s fee of $60 and the interest of $21.98, deducted by the trial court from the general verdict of the jury, could not be allowed, he desired a new trial for his client. The interest, amounting to $21.98, if recoverable by Lea, cannot be added to the judgment by this court, because Lea has filed no cross-petition to correct or modify the judgment of the trial court. Upon the record and the statement of the attorney for Lea, a new trial must be awarded.
In view of a new hearing, it is necessary to dispose of another question presented. The railway company claims that its motion to dismiss the action for want of jurisdiction, and its objection to the introduction of any evidence for the same reason, should have been sustained. The following cases are cited: Stanley v. Farmers’ Bank, 17 Kas. 592; Wagstaff v. Challiss, 31 id. 212; Berroth v. McElvain, 41 id. 269. We think the motion and objection came too late. The petition was filed in the district court with the written consent of the attorney of the railway company indorsed thereon. After the petition was filed, the railway company made a voluntary appearance in the court, and filed an answer containing a general denial and also alleging contributory negligence. The motion to dismiss was not made until several months after the answer was filed, and the objection to the evidence was not presented until the trial was commenced. Again, after the amended petition was filed, the railway company entered its appearance by filing a motion to make the petition more definite and certain. Under the statute, the district court had jurisdiction of the cause of action even if there had never been any bill of particulars filed before the justice. The voluntary and general appearance of the railway company in the district court gave it jurisdiction over the defendant. (Hefferlin v. Stuckslager, 6 Kas. 166; Cohen v. Trowbridge, 6 id. 393; Carver v. Shelly, 17 id. 474; Haas v. Lees, 18 id. 454; Shuster v. Finan, 19 id. 116; Dickson v. Randal, 19 id. 212.)
“Any voluntary appearance of a party to an action which recognizes the general jurisdiction of the court, or which is not made for the special purpose of contesting the jurisdiction of the court, or for any other special purpose, will be construed to be a general appearance in the case, and will be held to give the court general jurisdiction in the case of such party.” (Cohen v. Trowbridge, 6 Kas. 385, 393; McBride v. Hartwell, 2 id. 411, 415; 1 U. S. Dig., 1st series, 101,103, ¶ 580, et seq.)
If the railway company had not consented to the filing of the new petition in the district court and voluntarily filed its answer to the first petition and subsequently its motion to make the amended petition more definite and certain, then its motion to dismiss ought to have been sustained, under- the authority of Wagstaff v. Challiss, 31 Kas. 212; Berroth v. McElvain, 41 id. 269.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action of ejectment to recover possession of the following-described real property, situated in Labette county, Kansas, to wit: Commencing on the north line of Main street, in the city of Chetopa, at a point 50 feet west of the center of the main track of the Missouri, Kansas & Texas Railway; thence north 100 feet, on a parallel with the center of the main track of said railway; thence west 50 feet; thence south on a line parallel with the main line of said railway 100 feet, to tbe north line of Main street; thence east along the north line of Main street to the place of beginning, being a portion of the land claimed by the plaintiffs as a right-of-way in the city of Chetopa. The defendants filed a joint answer, denying that the plaintiffs had any legal estate in the land described, or a right to recover the possession thereof. At the February term, 1889, the case was tried by the court without a jury, on the following agreed statement of facts:
“It is hereby stipulated and agreed that, upon the trial of the above-entitled action, the following facts shall be admitted:
“ 1. The Missouri, Kansas & Texas Railway Company was, on the 25th day of September, 1865, duly organized as a corporation, under the name of the Union Pacific Railway Company, southern branch, and on the 3d day of February, 1870, its name was duly changed, and made The Missouri, Kansas & Texas Railway Company; and it is the railway company referred to in the act of congress approved July 26, 1866, entitled ‘An act. granting lands to the state of Kansas to aid in the construction of a southern branch of the Union Pacific railway and telegraph from Fort Riley, Kansas, to Fort Smith, Arkansas.’
“2. The acceptance of the terms, conditions and impositions of said act by the said Union Pacific Railway Company, southern branch, was signified in writing, under the corporate seal of said company, duly executed, pursuant to the direction of its board of directors first had and obtained; which acceptance was made and deposited with the secretary of the interior within one year after the passage of this act.
“3. The land in the petition described is a part of the lands known as the Osage ceded lands, granted to the United States by the treaty between the United States of America and the Great and Little Osage Indians, proclaimed January 21, 1867.
“4. Prior to the 24th day of December, 1867, a line was surveyed for the route of said railroad by G. M. Walker, then chief engineer of said company, which was the line from which the lands mentioned in stipulation No. 7, herein, were withdrawn from the market, but that line did not touch the southwest quarter of section 34, township 34, range 21, which includes the land described in plaintiffs’ petition in said case; and afterward, and between May 1', 1870, and June 6, 1870, said company located its road on the line where now operated, and built same in substantial compliance with said act of congress; but the route of said road, on its present location, has never been approved by the president of the United States, unless such approval is shown by the other facts herein admitted.
“ 5. The premises in plaintiffs’ petition demanded lie wholly within 100 feet of the center line of the main track of the railway so built and constructed as aforesaid, the center line of said main track being the center of the right-of-way of railway company.
“6. On the 1st day of September, 1880, the said Missouri, Kansas & Texas Railway Company leased said railway to said Missouri Pacific Railway Company, which has since possessed and operated the same as such lessee.
“7. Upon the completion of said railway through said Osage ceded lands, the president of the United States issued to said Missouri, Kansas & Texas Railway Company patents, under said act of congress approved July 26, 1866, for the alternate sections of land designated by odd numbers, to the extent of five alternate sections per mile on each side of said railroad, which are the same patents set aside in the case of M. K. & T. Rly. Co. v. United States, 92 U. S. Rep. 645.
“8. The quarter-section including the land in question was entered and purchased by one W. A. Hodges from the government of the United States on October 9, 1869, and a certificate in due form was on that day, by the proper officers, issued to him therefor; and thereafter, and on November 1, 1870, a patent in due form was issued 'therefor, pursuant to the said entry, by the government of the United States to said patentee, Hodges, which was duly signed and executed, and a perfect chain of title from said Hodges, patentee, now runs to and terminates in said defendant J. B. Cook, and he is the owner thereof, unless the same is owned by the plaintiffs, by virtue of the facts herein admitted and the law governing the same; except Printz is in possession of the premises in controversy as the tenant of defendant Cook.
“9. None of the land in dispute lies within 50 feet of the line of the center of the main track of said railroad, nor do defendants claim any part of the strip of land within 50 feet of either side of the center of said track. The plaintiffs, at the time of constructing said road, erected a depot building on its right-of-way, and the land on which said building stands is adjacent to the land in dispute; which said depot has been used all the time since its erection for the purpose of receiving freight and passengers for shipment. Nor do defendants claim any ground on which any side-tracks of said railroad are now located.”
On the facts as above set forth, the court found for the defendants and entered judgment accordingly. A motion for new trial was overruled. The. plaintiffs demanded, on the journal, another trial. The first judgment was set aside, and another trial was had on the same facts, and a second judgment for the defendants was entered, followed by another motion for new trial, which was overruled.
The claim of the plaintiffs to the land in dispute is based ' upon a right-of-way' grant contained in an act of congress of July 26, 1866. The first section of said act gives the railroad company named therein a right-of-way through the reserved and ceded lands of the government 200 feet wide, while by the sixth section the road is granted a right-of-way through the public lands only 100 feet wide. The land in question was a part of the lands reserved for the Osage Indians, at the time of the passage of the act under which plaintiffs’ claim is made, but were ceded to the government January 21, 1867. The plaintiffs claim that the grant to the company of the right-of-way was a present grant, and took effect immediately upon passage of the act. We agree with the counsel for the plaintiffs that the grant was a present one, and that, so far as the grant itself is concerned, or the right of the company to locate and have a right-of-way for its road 200 feet wide through • reserved or ceded lands, it took effect immediately. But we understand that until the grantee exercises the right secured by the act, by definitely locating its road, the grant is afloat, and while the grantee has a vested right in the grant to the extent of a right to locate its road and claim 200 feet for its right-of-way through reserved or ceded lands, such right does not attach to any particular tract of land until the road is located, and to that extent, and in that sense, the grantee has no vested right in any particular piece of land for a right-of-way until the road is definitely located. The grantee has a vested right, a fixed and indefeasible right, from the passage of the act, to a strip of land 200 feet wide through the reserved and ceded lands of the government for a right-of-way, which shall take effect and attach to the land on the location of its road, but no vested right in any particular piece of land until the location of its road. When, however, the location is made and the grant attaches, it relates back to the inception of the grant, the passage of the act containing it. We also understand that when the grantee elects to attach his grant to any particular tract of land by the definite location of its road, it has claimed its grant, and exhausted its right thereunder, and cannot reclaim it elsewhere.
“ This case stands thus: The corporators had the power to locate and construct a railroad. They could exercise this right but once without further grant. To accomplish this object, a most important attribute of sovereignty was bestowed on them by the legislature — the extraordinary reserve power of subjecting the property of private individuals to public use. If it were intended that this should be a continuing power, one that might be exercised, and again reexercised again and again, as often as might suit the convenience of this company, the legislature should have so declared in express terms. They have not done so.” (Moorhead v. L. M. Rld. Co., 17 Ohio, 351.)
“This extent of country is not all appropriated to the use of the road, but only so much as may be necessary for a track; its right to it is simply one of selection; and when it has made its selection, its right over all the other territory ceases. This principle is distinctly decided in the case of Moorhead v. L. M. Rld. Co.” (L. M. Rld. Co v. Naylor, 2 Ohio St. 238.)
When did the plaintiff definitely locate its road, so that its grant of the right-of-way attached? It claims it located it when it built it where it now is in 1870, and not before, while the defendants claim the company definitely located its road prior to December 24, 1867, on the Walker survey, which location did not touch the quarter-section of land to which the piece in dispute belonged. We are of the opinion that the defendants are right in their contention that the company definitely located the line of its road prior to December 24,1867, and that by so doing it exhausted its rights under the grant contained in the act of July 26,1866, at any rate so far as the intervening adverse rights of third parties are concerned; and as the defendant Cook’s grantors purchased the land after the 24th of December, 1867, and before May, 1870, to wit, October 9,1869, he had rights in the land prior to 1870 that could not be affected by the relocation of the plaintiff’s road. The survey of the plaintiff’s road by Walker was followed by the company filing a map with the secretary of the interior showing the route of its road, and asking that the lands along its line thus established be withdrawn from the market, until the company had selected its lands. This we think constituted a definite location of its road by the company, and an exercise of its grant, and when thereafter it changed its route, its location was subject to the rights before then obtained by Hodges in the land in dispute. The fourth section of the act of July 26, 1866, among other things states: “That as soon as said company shall file with the secretary of the interior maps of its line, describing the route thereof, it shall be the duty of the secretary to withdraw from the market the land granted by this act.” This section confers upon the grantee the right to file with the interior department a map describing the route of its road, and made it the duty of the secretary of said department, when said map was filed, to withdraw from the market the lands granted by the act.
It is said by the plaintiffs that the only object in filing the map was to secure the withdrawal of the lands granted by the act, and that filing of the map had nothing to do with the right-of-way. It is true the withdrawal of the lands granted was the object to be obtained by the filing of the map, but it is also true that that object could not be attained except by filing the map as evidence of the location of the line of road. And the company, having filed it as evidence of the location of its road for that purpose, cannot afterward,, and after it has secured that purpose, say that is not evidence of the location of its road, for the purpose of enabling it to relocate its right-of-way.
“We are of the opinion that the position of the claimant is the correct one. The route must be considered as definitely fixed when it has ceased to be the subject of change at the volition of the company. Until the map is filed with the secretary of the interior, the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of the different lines. But when a route is adopted by the company, and a map designating it is filed by the company with the secretary of the interior and accepted by that officer, the route is established; it is, in the language of the act, ‘definitely fixed/ and cannot be the subject of future change so as to affect the grant, except on'legislative consent. No further action of the company is required to establish the route.” (Van Wyck v. Knevals, 106 U. S. 360.)
“For we are of the opinion that, under this grant, as under many other grants containing the same words, or words to same purport, the act which fixes the time of the definite location is the act of filing the map or plat of the line in the office of the commissioner of the general land office. . . . Until then many rights to the lands along which the road finally runs may attach, which will be paramount to that of the company building the road. After this no such right can attach, because the right of the company becomes by that act vested. . . . It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or rather in his office. The line is then-fixed. The company cannot alter it so as to affect the rights of any other party.” (Railway Co. v. Dunmeyer, 113 U. S. 629.)
Without looking into the question raised by the statute of limitations, we recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
, All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by A. W. Cross against George W. Howe and Samuel Hollister, to recover upon a promissory iiote made by Howe and Hollister, September 12, 1881, for $750, payable to the order of Francis L. Howe, one year after date, with interest at 7 per cent, per annum. On the back of the note were the following indorsements: “Francis L. Howe.” “Paid by Samuel Hollister this September 15, 1882, and transferred to P. D. Cheney.” “Without recourse, Samuel Hollister.” “P. D. Cheney.” The plaintiff alleged that he was the owner and holder of the note^ and that the indorsement on the note, “Paid by Samuel Hollister this September 15, 1882, and transferred to P. D. Cheney,” is untrue, except as to the words “transferred to P. D. Cheney;” and that the indorsement “Without recourse, Samuel Hollister,” was made thereon without any part of the note being paid by Hollister. It was further alleged that the money paid by Hollister to Francis L. Howe was for the purchase of the note, and was the money of P. D. Cheney. No service appears to have been obtained upon Howe, and the action proceeded against Hollister alone, who, in his separate answer, denied the allegations of plaintiff with respect to the indorsement, and alleged'substantially that the note was paid off by him and the indorsement was placed upon the note by B. P. Waggener, the agent of Cheney, and that Cheney had accepted and retained the note so indorsed, and had discharged and released the defendant from any liability upon the note. He further alleged that he signed the note as surety, and for the accommodation of George W. Howe and P. D. Cheney, and at the instance of and as a substitute for Cheney; and that at the maturity of the note, with the money furnished to him, the defendant paid off the note sued upon, and transferred the same to P. D, Cheney as evidence of indebtedness to be held against George W. Howe, who had absconded.
A trial was had before the court and a jury', and the testimony of the plaintiff, Cross, was introduced, to the effect that the note had been transferred from Cheney to him in 1886. Cheney testified that he pleged the noté to Cross in 1886, as security for a loan which had never been paid. He stated that he obtained the note from Hollister on September 15, 1882, and that Waggener paid the money for Cheney and sent the note to him at Jerseyville, 111. He further testified that neither Howe nor Hollister had ever paid him anything upon the note, and that he did not accept it as having been paid by Hollister. This is substantially all the testimony presented to sustain the action, and the court, upon a demurrer, held the evidence to be insufficient and took the case from the jury.
We think the testimony of plaintiff failed to establish a right of recovery against Hollister. He accepted the note with a qualified or restricted indorsement, which clearly discharged Hollister from any liability thereon. Hollister was one of the makers of the note, and, according to the indorsement, he paid it off at maturity and obtained possession of the same. Whether he was in fact a surety, or had signed it at the instance and as a substitute for Cheney, as alleged, and transferred it to him as a liability against Howe, is unimportant. Cheney accepted the note upon the written condition that Hollister should not be held liable thereon. The testimony of Cheney in effect is, that Waggener was his agent to pay the money and obtain the note. The ordinary presumption would be that a payment by one of the makers was an extinguishment of the obligation; but probably the relations of the parties were such that Cheney desired to retain it as an obligation against Howe, the first signer and maker of the note. At any rate, Hollister did not permit the note to pass out of his hands until there was written thereon a plain declaration discharging him from liability; and it is alleged that this indorsement was written on the note by the agent of Cheney. It was accepted without complaint and held by Cheney for a period of about four years, when he transferred it to Cross, and no action was brought against Hollister for about five years after he had paid and transferred the same to Cheney. When Cross took the note it still contained, in clear and distinct terms, an unequivo-' cal release of Hollister. It is not shown that any misrepresentation was made when the indorsement was written, nor that there was any fraud or mistake in the transaction between Cheney and Hollister. Neither Cheney nor Cross could read the note understanding^ without seeing that no recourse could be had against Hollister, and that the only liability transferred, if any, was against Howe. There being no fraud or mistake, parol proof contradicting the indorsement, or which would change it from a conditional to an unconditional transfer, was not admissible. (Doolittle v. Ferry, 20 Kas. 234.) The only proof excluded, however, was the statement by Cheney that he “accepted the note from Hollister as an obligation against the makers, according to its legal meaning and effect.” This was a vague and meaningless statement, and was properly excluded from the jury. What was the legal meaning and effect of the note and indorsements? was the question submitted for the determination of the court, and Cheney’s opinion of their legal effect was of no consequence. He accepted and retained the note with an indorsement which expressly provided that Hollister should not be held liable, and there is nothing in the testimony showing that he was not aware of the indorsement, or that any deceit or fraud was practiced upon either his agent or himself.
It is further contended that, although Hollister has paid the note, the fact that he had transferred it and put it out upon the world makes it a new obligation, and estops him from alleging payment in his own defense. There is nothing in the testimony to show or that would warrant an implication that Hollister intended to issue the note as a new obligation based on a new consideration. The idea that he issued it as a new obligation against himself, and that he warranted it as the legal obligation of both the makers, is excluded by the plain language of the indorsement written upon the note at the time of the transfer. The written agreement of the parties overcomes any of the presumptions invoked by the plaintiff. Whatever may be his rights against Howe, who is not defending, it is clear that he has shown no right of recovery against Hollister.
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
Valentine, J.:
This was an action commenced before a justice of the peace of Sedgwick county on November 27, 1888, by S. A. Brown & Co., a corporation, against Charles Sullivan and George Steinmetz, to recover on an account the sum of $230. The summons was made returnable on December 8,1888, at 9 o’clock a.m., which summons appears to have been duly served. Attachment and garnishment proceedings were also commenced at the time of commencing the action, but as no question is presented with regard to them, they will not be further mentioned in the case. We shall now give so much of the proceedings of the justice of the peace as are applicable to this case, and as they appear from the Record, and as entered by the justice upon his docket. They are as follows:
“And now, to wit, on this 8th day of December, 1888, at 10 o’clock A. m., this cause comes on for hearing. The plaintiff, S. A. Brown & Co., not present, and the defendants, Charles Sullivan, George Steinmetz, by Moore & Douglass, their attorneys, present. In three minutes thereafter, and during the pressure of other official business, the defendants, by their attorney, Edwin White Moore, moved to dismiss this action for want of prosecution, and insisted upon a ruling on said motion at once, for the reason that he must be in another court immediately; and while in the act of leaving my office, and on his insisting, I sustained said motion, and said attorney withdrew at once from said office. Within five minutes, and before any entry had been made on my docket, I discovered that the account sued on was verified by the affidavit of H. L. Williamson, plaintiff’s manager therein. I immediately sent word to the said attorney that I had reconsidered my rul ing on said motion, and had overruled the same, also at the same time sending word to plaintiff’s attorneys, who were with defendants’ attorney, attending upon the district court of this county, of my action, and that the case was set down, upon my own motion, for trial at 3 P. M. of this day. At or near 2 o’clock of this day said attorney Moore informed me that he had notice of my action as aforesaid, and that he had seen plaintiff’s attorneys at said district court, and that he wanted until Monday of next week to consider whether he would stand upon record now made, if plaintiff’s attorneys would agree to such continuance. No further appearance being made herein by either party, and on account of the pressure of other official business, I passed this case until December 10,1888; at which time, and at 10 o’clock A. m., plaintiff’s attorneys appeared for the plaintiff, and, in the absence of the defendants and their attorneys, demanded judgment for the plaintiff, stating that the defendants by their attorneys had agreed that this case should be set for hearing at 9 A. m. of this day. ' Whereupon the hearing is had, the correctness of plaintiff’s verified account still not denied under oath by the defendants. And on hearing the proofs and allegations of parties, I do find for the plaintiff, in the sum of §222.75, of which $22.75 is for 7 per cent, interest on $200, from April 25,1887. It is thereupon, on this 10th day of December, 1888, considered, ordered and adjudged by the court, that the said S. A. Brown & Co., plaintiff, have and recover of the said Charles Sullivan and George Steinmetz, defendants, the sum of $222.75, with 7 per cent, interest per annum from date, together with costs herein, taxed at $6.40. December-10, 1888, at or near 11 o’clock A. M., Edwin White Moore, one of the defendants’ attorneys herein, appeared and protested that he had not agreed with plaintiff’s attorneys that this case should be set down for hearing at 9 o’clock A. M. of this day, and objected to the entering of any judgment herein, and also excepted to the ruling of the justice in reconsidering and then overruling of this said motion heretofore made, to dismiss this action for want of prosecution on the part of the plaintiffs, last Saturday, December 8, 1888.”
On December 15, 1888, the defendants took the case to the district court upon petition in error, and on April 2, 1889, the case was dismissed by the district court, and judgment for costs was rendered in favor of S. A. Brown & Co. and against Sullivan and Steinmetz; and afterward Sullivan and Stein metz brought the case to this court on petition in error, making S. A. Brown & Co. the defendant in error.
Did the district court commit material or substantial error in dismissing Sullivan and Steinmetz’s petition in error? It appears that the bill of particulars of the plaintiff in the justice’s court set forth a cause of action upon an account, and was duly verified, and no denial of this account, verified by the affidavit of the opposite party or of anyone else, and indeed no denial of any kind, was ever made or presented to the justice of the peace, and no testimony was introduced before the justice; hence, the only action that the justice could properly have taken in the matter was to render judgment in favor of the plaintiff in his court and against the defendant for the amount of the account. (Justices’ Code, §84; S. K. Rly. Co. v. Gould, 44 Kas. 68.) At the time, however, when this case came up for consideration in the justice’s court, the justice was engaged in other official business, and could not properly have taken up the case at all for consideration. However, the justice was pressed by the defendants to dismiss the plaintiff’s action for want of prosecution, and the justice sustained the defendants’ motion, but never made any entry thereof upon his docket, and within about five minutes thereafter overruled the defendants’ motion and set the case down for trial at 3 o’clock p. m. of the same day, and the defendants’ attorney had full notice thereof. Now, under the pleadings and proceedings in the justice’s court, as the justice had no power to act except to render judgment in favor of the plaintiff in that court, and against the defendants for the amount of the account, and as the order sustaining the defendants’ motion to dismiss the action was never entered upon the justice’s docket, and as such order was set aside and the motion overruled in a few minutes after they were made, and as the attorneys for the defendants had full notice of the same, we think we cannot treat the subsequent proceedings of the justice as void; and as the justice on December 10, 1888, rendered the only proper judgment that could ever have been rendered in the case under the pleadings and proceedings, we think such judg ment ought to have been affirmed by the district court. And therefore, as the judgment of the justice of the peace ought to have been affirmed, it was certainly not material error, as against the defendants in the justice’s court, plaintiffs in error in the district court and in this court, for the district court to dismiss such parties’ petition in error.
Hence the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This a proceeding under the bastardy act. The evidence on behalf of the state having been introduced, the defendant elected to rely on a jurisdictional question presented by the evidence for the state. This question is, whether the courts of this state have any jurisdiction in a case where the mother and her illegitimate child are and always have been non-residents of the state of Kansas. The jury found specially as follows:
“1. Is Carrie Vernon, the relator, a citizen of the state of Kansas? A. No.
“ 2. Was the relator, Carrie Vernon, ever a citizen of the state of Kansas. A. Yes.
“ 3. Was the relator, Carrie Vernon, delivered of a bastard child? A. Yes.
“4. When was said bastard child born? A. 9 p.M. on June 1, 1889.
“ 5. Where was said bastard child born ? A. Carlisle, Clinton county, state of Illinois.
“ 6. Was said bastard child ever a citizen of the state of Kansas? A. No.
“ 7. When was said bastard child begotten ? A. September 3, 1888.
“8. Where was said bastard child begotten? A. Kansas City, Kansas.
“ 9. Was the relator, Carrie Vernon, born in the state of Illinois? A. Yes.
“ 10. Has the relator, Carrie Vernon, always resided in the state of Illinois, except when temporarily absent ? A. No.
“11. Where does the said relator, Carrie Vernon, now reside ? A. Carlisle, Clinton county, state of Ulidois.
“ 12. Has said bastard child ever since its birth been a resident and citizen of the state of Illinois? A. Yes.”
After the jury had returned these special findings, the defendant below made a motion to set aside the answers to questions Nos. 2 and 10, on the ground that said answers were wholly unsupported by evidence. This motion was sustained, and said answers set aside. The jurisdictional question is raised by motion to discharge the defendant, by instructions asked and refused, and by the motion for a new trial. The district court adjudged the defendant to be the father of the bastard child, and that he may be charged with its. maintenance and education, and ordered the defendant to pay into court the sum of $1,200 for that purpose, in definite sums, at stated periods.
The first question to be considered is, the object to be ac complished and the results to be attained by proceedings under the bastardy act of this state. These things have been the subject of some comment by this court. The act itself is a strange admixture of criminal process and civil procedure, but has been classified' as a civil proceeding. The power exercised by the legislature in the passage of the act, and the proceedings to be taken under it, can be traced on the one hand to the police power of the state, and on the other as conferring personal benefits to private parties. The title to the act is somewhat suggestive of its objects and purpose. It is, “An act providing for the maintenance and support of illegitimate children.”
In the case of In re Wheeler, 34 Kas. 96, it is said by this court that “the charge of maintenance and education, while it is in the nature of a civil obligation, and imposed in a proceeding which is essentially civil, though criminal in form, is not based upon contract, either express or implied.” This means that the proceeding is strictly a statutory one, and whatever rights are created or obligations imposed are by reason of the express terms of the statute. The court also says: “It is the duty of the father to make provision for the support of his illegitimate offspring.” That is, the moral obligation is made a legal duty by the words of this statute. The court proceeds:
“To compel him to assist in the maintenance of the fruit of his immoral act, and to indemnify the public against the burden of supporting the child, is the purpose of the proceeding in bastardy.”
The case of Musser v. Stewart, 21 Ohio St. 353, is cited to support the decision. That case declares —
“That a proceeding in bastardy is not a suit to recover a sum of money owed from the defendant to the complaining party. The liability sought to be enforced is not founded upon contract, express or implied, but originates in the wrongful act of the defendant, against the consequences of which the statute is designed to protect the public.”
Ex parte Cottrell, 13 Neb. 193, is cited, and that case says:
“The proceeding is properly a police regulation, requiring the putative father to furnish maintenance for the support of his child, and to indemnify the public against liability for its support.”
All the books abound in such expressions. It seems, therefore, that bastardy acts such as ours convert the moral obligation of the father of an illegitimate child to support it into a legal duty, enforceable in the courts. Various states prescribe different forms of procedure to enforce this duty, but in all states, so far as we have read the reports of their final tribunals, the avowed purpose of these acts is to prevent the child from becoming a public charge to the county, township or district in which the mother resides. This is generally accomplished by a provision that the mother, if she be a proper person and is in charge of the child, or, if she be not, then some person who is, be paid certain sums at definite periods. And the amounts paid, the times at which paid, and to whom paid, are all questions to be determined by the court. If this is the inducing cause and sole purpose of the legislative act, there is much reason to call it an exercise of the police power of the state, and the public charge to be guarded against could not occur unless the child was a resident of the state. In any view, the mother is benefited, because, so far as the father is compelled to contribute to the maintenance and education of the child, she is relieved from expense. If she is not in the custody of the child, or is adjudged to be not a proper person to have the custody, yet she is relieved from a legal obligation to the extent that support is given the child by the putative father. Hence, it seems to follow from such a construction that the primary object of a bastardy act is to relieve the public of the charge and support of an illegitimate child, and that the benefits derived by the mother from the enforcement of the law are only incidental. These proceedings do not bar or interfere with her right of personal action against the father for the injuries done her. If that is the primary object of a bastardy act, it can only operate within the boundaries of the state in which it originates. If the child is a non-resident, no municipality of this state could be made chargeable with its maintenance. This is too plain to require elaboration. The case of Sutfin v. The People, 43 Mich. 37, is one strongly in point. It holds that—
“The main purpose of the Michigan bastardy act is to indemnify the public for the support of the child, and it does not apply to cases where the child lives out of the state, even though it was begotten within the state.”
The court says:
“The proceedings under this act are purely statutory. They are partly for the benefit of the complainant, and may be instituted in her name, and partly for the purpose of indemnifying the public, and may be instituted in the name of the people. The warrant may be executed in any part of the state, and if upon the trial the defendant is found guilty, he shall be adjudged to be the father of the child, and shall stand chargeable with the maintenance thereof, with the assistance of the mother, in such manner as the court shall order. The person so adjudged to be the' father shall give bond to the superintendents of the poor of the-county, with sufficient sureties; to the satisfaction of the court, to perform such order, and also to indemnify the county which might be chargeable with the maintenance of such child. The mother and superintendents, respectively, may recover from the defendant any sum of money which ought to have been paid them respectively in pursuance of such order of the court; and the superintendents are given power to compromise and arrange with the father relative to the support of such child, and thereupon to discharge him from all liability for the support of such bastard. It seems very clear, indeed, from these several provisions, that the support of the bastard child, and thereby to prevent its becoming a charge upon the public, is the primary object and purpose of the act. In so far as the putative father is required to contribute to its support, it is a benefit to the mother; but for the performance of such order a bond is given to the superintendents of the poor, and to indemnify the county which might be chargeable with the maintenance of the child. These two things go hand in hand together. Where the mother and child are actual residents of another state, or of a foreign country, it surely could not have been intended that the bond to the superintendents would be for the indemnity of the county where the mother and child resided; nor could it have been intended to meet a contingency that might never happen, by a change of residence to the county in this state where the proceedings were instituted, or any county into which the parties might come. The statute is designed to meet cases where the child is a resident of this state, and cannot be held applicable to cases like the present. The benefit to the mother of the child which this act contemplates is secondary only. She may have her personal action against the father of the child for her injuries, and the proceedings under this act would be no defense in such an action.”
In the case of Graham v. Monsergh, 22 Vt. 541, Redfield, J., speaking for the court, says:
“This is a complaint and proceeding under the statute in regard to bastards and bastardy. The important facts admitted on the record are, that the child, which is confessedly not legitimate, was begotten and born out of the state, and the parties never resided in the state, the mother only being temporarily here at the time the proceedings were instituted. The child resided, or was in the keeping of a family which resided, in Derby, in this state, at the time of the trial. The court are well agreed that a proceeding for the purpose of affiliating a bastard child and compelling aid from the father in its support is, in its nature, confined to causes of action accruing within the state. The remedy is a peculiar one, and given and regulated exclusively by statute, aud has no fair or reasonable application to causes of action accruing out of the state. And, if we allow a case which accrued in a neighboring state or province to be brought into our courts, we could not exclude such a case coming from Japan, or farther India, or Kamtchatka. Or, if we admit such cases to come into our courts from countries where similar laws exist, we must, equally, from countries where no such laws exist; and, for aught we can perceive, from those countries where polygamy is allowed to the fullest extent. We should thus be liable to become engaged in a species of knight-errantry, in a ludicrous attempt to redress the wrongs and regulate the police of other countries in matters which very little concern us. The truth is, the proceeding is altogether a matter of internal police, and in its very nature as exclusively local as is the administration of criminal justice.
“It is not necessary here to consider how far the case of a woman bona fide coming into this state to reside, before the birth of the child, might merit a different consideration. It is supposable, too, that, should the birth of such a child occur during the temporary absence of the mother from the state, with the continuance of the animus revertendi, she might, on her return to the state, be entitled- to proceed against the father under these statutes.”
This case is expressly affirmed by an opinion of Redfield, C. J., in Egleson v. Battles, 26 Vt. 548.
The case of The State v. Helmer, 21 Iowa, 370, is one in which an action was commenced on the transcript of a judgment in a bastardy proceeding in the state of Indiana, in Linn county, in the state of Iowa. An exemplified copy of the judgment, duly authenticated, was all the evidence introduced at the .trial; there was an objection to the sufficiency of the evidence, and the supreme court of Iowa, by Cole, J., says:
“It is claimed that the subject-matter of the action is one of merely local police regulation in the state of Indiana, under its laws, and that it is not competent for the courts of another state to undertake its enforcement. There is much of truth in the legal proposition upon which this claim rests; but the er- . ror is in its application. If the mother of the bastard child, begotten and born in the state of Indiana, has come to Iowa and sought by legal proceedings to compel the defendant, its father, to support it, and to give bond therefor, and otherwise comply with the requirements of the statutes of Indiana, the answer of the defendant, that the subject-matter of such action was one of merely local police regulation of Indiana, not enforceable in this state, would have been conclusive and amount to a complete defense. (Graham v. Monsergh, 22 Vt. 543.) Such an action can no more be sustained beyond the limits of the sovereignty within which it arose than can an action for any other penalty provided by statute of such sovereignty for the wrongful act of a defendant therein. Both are alike matters of local, internal police, and enforceable alone by the sovereignty making the regulation and providing the penalty. But where the local jurisdiction has attached, and the courts of that state or sovereignty have properly taken cognizance of the matter, and rendered judgment for such penalty, such judgment is entitled to ‘full faith and credit’ in every other state.”
In the case of Richardson v. Overseers of Poor, 33 N. J. Law, 190, it is held that a bastard child, whose mother before its birth moved out of the state, and who, with her child, has ever since continued to reside in another state, is not chargeable upon any township in this state. At common law, the duty of supporting the bastard child is upon the mother, and not on the father. The father cannot be held liable to contribute to its support except as made so by statutory proceedings, and hence it is held by another line of decisions that the principal reason for the existence of the statute is to make the moral obligation of the putative father to support the illegitimate child a legal duty, and this is done for the benefit of the child, and not the mother. (Carter v. Krise, 9 Ohio St. 405; Perkins v. Mabley, 4 id. 669; Musser v. Stewart, 21 id. 356; Cottrell v. State, 9 Neb. 125.)
In the case of Mc’ Gary v. Bevington, 41 Ohio St. 280, the court says:
“The bastardy act of February 2, 1824, (Swan’s Statutes, 124,) provided, ‘that on complaint made to any justice of the peace in this state by any unmarried woman resident therein,’ the justice should issue his warrant for the arrest of the accused. This statute in terms required that the complainant should be a resident of the state. Subsequent sections of the statute provided for giving bond to the trustees of the township in which the child was born, conditioned that it shall not become a township charge. In 1873, (70 Ohio Law, 111,) this statute was so changed as to provide, ‘ that when any unmarried woman who has been delivered of, or who is pregnant with a bastard child, shall make complaint thereof in writing under oath before a justice of the peace,’ the justice shall issue his warrant for the arrest of the accused. And the second section provided, that when the person accused was arrested and brought before the justice, a compromise might be made by the complainant and the accused, and that when ‘ the party accused shall pay or secure to be paid to the complainant such sum of money or other property as she may agree to receive in full satisfaction, and shall, further, give bond to the trustees of the township in which such complainant shall reside, conditioned to save such township free from all charges toward the maintainance of said child, the justice shall discharge the party accused out of custody.
“ The fourth section of this act preserves the local nature of the proceeding, by the provision that in a certain case the justice may bind the accused in a recognizance to appear at the next term of the court of common pleas in a sum not less than $300 nor more than $600, for the benefit of the township in which such bastard child shall be born, to answer such accusation. The second, third and fourth sections of this act are similar to corresponding sections of the act of. 1824. And while the requirement that the complainant shall be a resident of the state is left out of the first section, the local features of the act in other respects remain.
“The Revised Statutes, §§ 5614-5638, have none of the local features of the older statutes. The complaint may be made by an unmarried woman who has been delivered of or who is pregnant with a bastard child. All recognizances for the appearance of the accused party, and all security for the maintenance and. support of the child, are required to be given for the benefit of any county, township, or municipal corporation within the state in which such bastard child may become a charge. This radical change of a statute which authorized a proceeding to be commenced only by a resident of the state, and in which many of the objects of the proceeding were for the benefit of the township in which the mother resided, or in which the child was born, into a proceeding without limitation as to residence of the complainant, and in which the remedy provided are for any locality that may become interested in the support of the child, has enlarged its application tó any case in which jurisdiction of the defendant or his property may be had within the state. Casting off the limitations that formerly surrounded the proceeding is only following the changes in the statutes.
“Residence in the state, when the cause of action arose, or when proceedings are commenced, is not necessary to maintain any other kind of action or proceeding. In many cases the same action or proceeding may be maintained in any state, depending altogether- what the fact is as to the place where the defendant may be summoned or jurisdiction otherwise acquired of the person. If the complainant in bastardy, although the child was begotten and born in another state, and the mother and child still remain residents of such state, can, by coming into this state, get jurisdictidn of the defendant under our statute, there is nothing in the statutes, nor in the reason or purpose of the proceeding, to hinder her from maintaining the proceeding here.”
In Illinois, in the case of Kolbe v. The People, 85 Ill. 336, it is said:
“This is a proceeding under our statute on the subject of bastardy. The child was begotten in Missouri, where the complainant, the putative father, then resided. When near the time of the confinement of the mother, the putative father removed to the state of Illinois. The mother, while pregnant, came into the state of Illinois and into the county where the putative father was found, and instituted the proceedings before a justice of the peace of that county. The case came in regular course before the circuit court, where judgment was rendered against the putative father. He appeals to this court. Appellant insists that the circuit court erred in refusing to dismiss the proceeding for want of bond for costs. The statute requiring bond for costs is not applicable to a proceeding of this kind; and, if it were, the application, not having been made before the justice of the peace, comes too late. The ruling was right.
“A graver question is presented by the objection that the complainant was not a resident of the state of Illinois, and never has been. It is strenuously insisted that this statute was enacted in the interest of the public, and for the protection of the proper county against its liability to the expense of maintaining the child as a pauper.
“The language of the statute is broad, and contains no express limitation of the kind insisted upon. The case is certainly within the letter of the law. The majority of the court do not feel at liberty to hold that the operation of the statute is limited in this respect by such implication. While the statute is in the interest of the public in some respects, still, the main purpose of the statute seems to be to compel the father of a bastard child to bear part of the burden of its support. In this, the mother is chiefly interested.
“We think the proceeding, as it is, was authorized by the statute. The judgment is therefore affirmed.”
This case is affirmed in the ease of Mings v. The People, 111 Ill. 98.
In Haushins v. The People, 82 Ill. 193, the court declares that—
“The foundation of the action is not to punish the defendant for an immoral or an unlawful act, but to compel a father to contribute to the support of his offspring. If the sole ob ject of the act is to compel a father to support his illegitimate child, it must be that the action is transitory, and not local, and that it could be maintained in any jurisdiction within which the putative father can be found.”
The case of Duffies v. The State, 7 Wis. 672, proceeds upon a theory somewhat different from the other cases before cited. The court says:
“This was a complaint and proceeding instituted under chapter 31 of the Revised Statutes in regard to the support of bastards. The testimony in the case showed that the child was begotten in the town of Dover, in the county of Racine, and that the mother went to Illinois, and was residing in' Bloomingdale, in that state, at the birth of the child, and continued to reside there until the child was two years old, when she returned to this state, and instituted this proceeding for the purpose of affiliating a bastard child, and compelling the father to aid in its support. It is now insisted by the counsel for the plaintiff in error, that the settlement of the child is in Illinois, and that this proceeding will not apply to a case when the mother was residing in another state at the time of the birth of the child. In support of this position, we have been referred to the cases of Graham v. Monsergh, 22 Vt. 543; Egleson v. Battles, 26 id. 548.
“The obligation of the father to support a bastard child grows out of the paternal relations existing between him and such child; and we therefore deem it quite immaterial, so far as his obligation and duty are concerned, whether the child is born out of the state or not. The object of the statute is to save the public from the burden of supporting illegitimate children by compelling the father to provide for their maintenance. It is the father's duty to support his children, legitimate or illegitimate, and because he is likely to neglect it in the latter case, the law enforces the obligation by proceedings under bastardy acts. This is the ground upon which these statutes are founded. What difference can it make to any county or town in this state, which is about to be burdened with the support of an illegitimate pauper child, whether the child was begotten and born in such county or town or in England or Germany? If the father is within the state, where he can be held amenable to our laws, and in a town or county where the child is likely to become a charge, it is right and proper that he should support his own offspring, and the law will compel him to do so. The accident of the birthplace of such child ought not to be permitted to affect this general universal obligation growing out of the paternal relation. We are therefore unable to concur in the reasoning of the courts in Vermont, where it has been held that a bastard child, born out of the state, its mother at the time having no domicile in the state, cannot be affiliated, or its maintenance charged upon the father under the bastardy act.”
It seems to us, from a careful reading and comparison of these various decisions, that they are greatly controlled by the views of the different courts as to the main object and purposes of their various statutes. The courts that hold that the principal object of the statute is to prevent illegitimate children from becoming a charge say that the proceedings are local • while the other courts that hold the purpose of the statute to be to convert the moral obligation into a legal duty say they are transitory. When the question is historically examined, it will be found that originally the overseers of the poor were alone empowered to commence and maintain such proceedings. But the universal tendency has been in all this legislation everywhere to gradually give to the mother the sole power to institute these proceedings, and the practical result of such a tendency is to accomplish all the purposes contemplated. The enforcement of the statute by the mother both protects the municipality from the burden and makes the putative father contribute material aid to the mother in the maintenance and education of their illicit offspring. Our legislation has partaken very largely of this tendency. It seems that such proceedings can be instituted alone on the complaint of the mother. The money is to be paid to her, unless it appears that she is an improper person. She can at any time dismiss the suit, if she enters of record an admission that provision has been made for the maintenance of the child to her satisfaction. Such an entry is a bar to all other prosecutions for the same cause and purpose. Sections 19 and 21 of the act seem to be conclusive against the view that the sole purpose of the proceeding is to protect the public, for it provides that “in case of the death of the putative father of such child, the right of action shall survive against his personal representatives, and the death of the bastard child shall not cause the abatement of the proceedings.” If the sole or principal object of the statute is to protect the public from the maintenance oí the child, the proceedings would abate with the death, for with the death the necessity for the statute would cease to exist. Very strong support of this view is found in the act repealed by the statute we are now considering. The act repealed (chapter 109, Laws of 1859) provided, that on complaint of any woman, resident in this territory, the putative father of a bastard child could be arrested, and if the accused would pay, or secure to be paid, to the woman such a sum of money as she would agree to receive in satisfaction, and would give bond to the trustee of the township in which said complainant shall reside, conditioned to save such township free from all charges for the maintenance of the child, then the accused shall be discharged. Another section provides, that if the woman neglects to bring a suit for the maintenance of the child, or commences a suit and fails to prosecute it to final judgment, the township' trustees may bring such a suit. Under the act now in force, the unmarried woman, who is now alone empowered to commence proceedings, is not required to be a resident; neither does the act authorize any county or township interference with the proceedings at any stage, but gives the mother the sole right to institute, control and dismiss the action.
We are forced to the conclusion, that if the putative father of a bastard child is a resident of this state, the mother can institute proceedings against him under our statute, even if the mother and child are residents of any other state.
We recommend that the judgment of the district court be affirmed.'
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
On the 16th of June, 1887, the plaintiff, Kimball, sold to the defendant, Bell, blocks 7 and 31 in Getty & Larkin’s addition to the city of Ellsworth, and gave him a title bond therefor, in which he agreed to execute and deliver to Bell, upon the payment by him of the purchase-money therein named, a good and sufficient warranty deed, conveying an absolute and indefeasible estate in fee-simple to said blocks of land. Having made the last payment on said land, Bell demanded of Kimball a deed therefor on the 5th of January, 1889. On the 17th of the same month suit was begun by Bell to recover back the purchase-money, alleging that Kimball had failed to comply with the conditions of his bond by giving deeds. The case was tried April 22, 1889, by jury. A demurrer to the evidence was interposed by Kimball, but it was overruled. The jury found for the plaintiff below. Motion for a new trial was argued and overruled.
The first contention of the plaintiff is that the demurrer to the evidence should have been sustained. This contention is based upon the theory that the plaintiff having brought this suit to recover back the purchase-money, upon the alleged failure of the vendor to comply with the conditions of his bond in relation to the title, the plaintiff must show that the deed tendered by the vendor as a compliance with the conditions of his bond did not in fact convey a good and indefeasible title in fee-simple to the blocks sold, before he can recover; and that simply proving that an unsatisfied mortgage was on record against the blocks did not constitute such a showing, because a mortgage might be unsatisfied of record, and yet be fully paid; and because of this it was the duty of the plaintiff below to have shown that the mortgage had not in fact been paid, because if the mortgage had in fact been paid, though not satisfied of record, the deed tendered would have conveyed such a title as the bond called for, and the plaintiff could not have recovered.
We agree with counsel for plaintiff in error that, to make a case, the plaintiff below must have shown that the deed tendered him before suit brought did not convey a good and indefeasible estate in fee-simple. But we think the plaintiff below did show that, at least prima facie, when he showed that there was of record an unsatisfied mortgage against these blocks. We think the law is well settled that the vendee is not required to accept a deed, though in form a warranty, stipulating that the land is free from all incumbrances, when there is a cloud upon the title in the shape of an unsatisfied mortgage of record. Though a deed in proper form has been tendered, the vendee seeking to recover back the price paid for land may justify his refusal of said deed by showing an unsatisfied mortgage of record against the land. In Durham v. Hadley, ante, pp. 81, 82, Chief Justice Horton, speaking for the court, says:
“It is undoubtedly true that, where an incumbrance is discovered upon land, the vendor must discharge it before he or she can compel the payment of the purchase-money by the vendee at law or in equity. In this case, it is claimed that no incumbrance existed, because the mortgage had been paid; but the records in the office of the register of deeds show no release and no payment to any party having authority to release or accept payment. . . . Mrs. Bowen ought, before she made her contract, or offered her deed, or at least before this action was brought, to have had Charles H. Thompson release on the record the mortgage of $834 and all interest, if it is paid, or she ought to have had the written assignment of the mortgage to Benj. F. Jewett recorded, if Jewett was ever the legal owner thereof. She did none of these things, and none of these things have yet been done. The title is clouded with an apparent incumbrance. . . . The facts are, that Durham could not and cannot obtain a good marketable title. He cannot be compelled to accept any other.”
This the plaintiff below did in this case. He showed an unsatisfied mortgage against the land sold to him. He was not required to go behind the record and show that the mortgage had not in fact been paid. Having shown a prima fade case, he might rest. If then the defendant could show that the mortgage had in fact been paid, though not satisfied of record, such showing would defeat the prima fade case of the plaintiff, and he could not recover. In this case the defendant made no showing, or offer to show, that the mortgage had in fact been paid. The unsigned memoranda, without date, on the margin of the mortgage introduced in evidence, are of no value, except, perhaps, as a mere pointer to call attention to the place where a release might be found. Of itself, it was no evidence of a release of the mortgage.
It was decided in O’Neill v. Douthitt, 40 Kas. 689, that “ where an abstract of title shows that a mortgage on the land has been recorded, it is then necessary, in order that the abstract shall show a good and complete title, that it shall also show that the mortgage was not only released and discharged of record, but also that the person releasing or discharging the same had full and complete authority of record to do so.” (See, also, Durham v. Hadley, ante, p. 73; same case, 27 Pac. Rep. 105.) If a release of the mortgage, so far as the southeast quarter of section 17 was concerned, was to be found in the book referred to in said memoranda on the margin of the mortgage, it could easily have been introduced in evidence by the defendant below. We do not think the record shows the defendant below was in a' position, even at the time of the trial, to give a good and indefeasable title in fee-simple to the blocks of land described in his title bond. (Durham v. Hadley, supra.)
It is claimed by the plaintiff herein that the case was tried by the court below on a wrong theory; that the court tried the case all the way through upon the theory that time was of the essence of the contract, and that the vendee might demand a deed immediately upon the payment of the last installment of the purchase-money, and if the vendor failed to respond therewith at once the vendee was at liberty to immediately bring suit for the purchase-money. This may be true. There are some things in the record indicating that it is. And if true, the court was certainly mistaken in its view of the rights of the parties in relation thereto, under, the contract. There is nothing in the contract making time of the essence thereof. Under the contract, we think either party thereto was entitled to a reasonable time, after demand, in which to perform the conditions thereof. But if this was true, how is it material? If the defendant below was not in a position to make a good title at the time of the trial, which was more than three months after the last payment and demand for a deed, he was not in a position to perform the conditions of his bond within a reasonable time after the payment and demand. Three months was certainly a reasonable time, and as long as he could ask, in which to make a deed, upon the defendant’s own theory of the law in the case. We think if the court tried the case upon the theory that the plaintiff in error claims it did, (and we are inclined to think it did,) it was an erroneous theory upon which to try it, but we do not see how the defendant was injured thereby. If the court had tried it upon the proper theory, the defendant was in no position to defend against the action, because he could not perform after a reasonable time had elapsed.
We think the case must be affirmed. 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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The opinion of the court was delivered by
Johnston, J.:
Frank Woodruff was convicted of grand larceny. The information was filed in December, 1890, and charged Woodruff with stealing a roan mare, the property of F. F. Murray, on August 9,1887, and alleged that since about the time the larceny was committed Woodruff had been a fugitive from justice and absent from the state. At the trial, testimony was given that Woodruff came to the house of J. C. Murray in the latter part of July, 1887, and was employed by Murray to work upon his farm. Oh the morning of August 9, 1887, he was sent into a field to cut corn for J. C. Murray, but instead of doing so he went to the home of F. F. Murray, who was a son of J. C. Murray, and told him that he had the toothache and desired to go to Olathe to have the tooth extracted, and he said that he wanted to hire a horse to ride to Olathe, stating that he would return the animal about noon of that day. Murray consented, and assisted in saddling and bridling the mare, but he never saw the mare afterward, and never saw the defendant until the fall of 1890, when he was brought from Illinois upon requisition of the governor of the. state. When the defendant did not return at noon with the mare, Murray went to Olathe, and with the aid of the sheriff made a fruitless search for Woodruff and the mare. He was not seen at Olathe on that day, but was seen by one witness in possession of the mare at the town of Morse, Kansas. The mare has never been found or recovered.
The defendant insisted that under these facts there was no such trespass and taking as was necessary to constitute the offense of larceny; and he asked the court to chargé the jury that if he obtained the possession of the mare with the consent of the owner, and afterward appropriated her to his own use, he could not be convicted of larceny. The court instructed the jury as follows:
“ If you believe from the evidence that defendant obtained possession of the mare charged in the information to have been stolen under the pretense that he wanted to ride to Olathe, but in reality with intent to convert her to his own use, and to deprive the owner of his property, that would be a sufficient taking and carrying away to constitute the crime of grand larceny.”
Further along in the charge the court instructed that —
“If you are satisfied from the evidence beyond a reasonable doubt that the owner of the mare alleged to have been stolen intended only to part with the possession of the mare, and not with the ownership, and that the defendant took possession of the mare not for the- purpose, as he stated, of riding to Olathe and return, but with intent to convert the mare to his own use and to deprive the owner of his property therein, and that in pursuance of such intent he did convert the mare to his own use, then you ought to find the defendant guilty of grand larceny, as charged in the information.”
The instructions given by the court were warranted by the evidence, and correctly stated the law of the case. To constitute larceny there must be an intentional taking, without the consent of the owner — an intentional fraud and appropriation of the property to the use of the defendant. If tbe owner consents to part with the property there can be no larceny; but the consent must be free and voluntary. Where his consent to surrender possession for some temporary and legitimate purpose is obtained by a trick or a fraud, and the taker intends to deprive the owner of his property and convert the same to his own use, the consent is a nullity, out of which no legal possession or right of possession against the owner can arise. According to the testimony on which the verdict in this case rests, there was no voluntary surrender of the possession of the property for the purposes intended by the defendant; hence the taking was tortious and against the will of the owner. The jury were warranted in inferring that the defendant never intended to go to Olathe for the purpose of having a tooth extracted, and never intended to return the mare to the owner, but that his real purpose was to steal the mare and convert her to his own use. According to the testimony, he never went to Olathe, never returned the mare, and it appears that he fled from- Kansas and took refuge in the state of Illinois, remaining there until he was found and extradited for the commission of this offense. We think that the evidence is sufficient to sustain the verdict, and that the defendant has no cause to complain of the charge of the court. (The State v. Williams, 35 Mo. 229; The State v. Coombs, 55 Me. 477; The State v. Humphrey, 32 Vt. 571; People v. Shaw, 57 Mich. 403; People v. Smallman, 55 Cal. 185; Smith v. People, 53 N. Y. 111; Miller v. Commonwealth, 78 Ky. 15; People v. Smith, 23 Cal. 280; English v. The State, 15 S. W. Rep. 649; The State v. Anderson, 25 Minn. 66; 12 Am. & Eng. Encyc. of Law, 770.)
The introduction in evidence of a postal-card notice given by the sheriff, offering a reward for the stolen mare, giving a description of her, and a description of the defendant, is another ground of complaint. It was offered in connection with the evidence of the under-sheriff, who testified that at the instance of Murray, and while he had the warrant in his hands, he searched for the defendant and the mare in and about Olathe, and to aid in finding them they had printed a large number of such postal cards, and distributed them over the states of Kansas and Missouri. It was competent to show the search for the defendant, and that he fled from the state, but a copy of the printed postals which were mailed was hardly competent evidence. The reception of the notice, however, was not prejudicial to the defendant, as the testimony conclusively showed that he obtained the mare upon the representation that he was going to Olathe, that he did not go to Olathe, that he never returned the mare to her owner, and that he fled the state and became a fugitive from justice. Under such a state of facts, the reception of the printed postal was immaterial and harmless.
There are no other objections which require notice, and finding no error in the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action of ejectment by E. D. Rose against Samuel Newman, to recover the possession of lot No. 20, in the city of Holton, Jackson county, Kansas. One McHugh purchased said lot at a tax sale in 1867, and afterward sold the same to the plaintiff. The plaintiff leased said lot to Naylor & Williams, who agreed to pay. the taxes on the lot for the use of it. Naylor & Williams erected a barn on the lot and carried on a livery business therein. Afterward Williams sold his interest in the business and the lease to a man named Tucker, who, with Naylor, carried on the business for some time, when they both sold out to the defendant, who, with the consent of the plaintiff, took possession of the premises under the lease of the plaintiff to Naylor & Williams. Before the said lease expired, one Linscott brought an action against this plaintiff to recover the possession of the lot. In that case the court adjudged the tax deed under which Rose claimed the land void, and that Linscott was the owner of the lot in fee, and also entitled to the sum of $400, for the use of the land, from Rose, but found that Rose was entitled to $141.97 for taxes paid on said lot and interest thereon, and adjudged that Linscott should pay to Rose said sum of $141.97, before he should be let into possession of the premises. Execution was issued on said judgment against Rose for the $400 adjudged to Linscott for the use of said lot, and that sum, with interest and cost of the execution, collected. Linscott did not pay Rose the $141.97, nor did any one else ever pay Rose said sum, or any part thereof. After Linscott recovered judgment against Rose, as above stated, he sold his interest in said land to one Wilson, and gave a bond for a deed; and, after several transfers, the defendant, Newman, while still holding possession of the lot under the lease from Rose, purchased the Linscott title to said land, obtaining quitclaims from the several parties through whom it had passed, and also of Linscott and wife. Some time afterward, and after the expiration of the lease under which Newman was holding, Rose notified him to quit and surrender the possession of the premises to him, which Newman refused to do, and Rose brought this suit to recover the premises. At the March term, 1888, the case was tried by the court without a jury, resulting in a judgment for the defendant. The plaintiff brings the case here for review.
The question is, was this judgment right under the evidence as it appears in the record? We do not think it was. It is conceded that Rose was in possession of the lot when he leased to Naylor & Williams, and that Newman went into possession under said lease as the tenant of Rose, and he should have surrendered his possession to Rose. Newman justified his refusal to surrender the possession of the lot to Rose by asserting that, during the life-time of the lease and while he had a right to the possession under the same, the court, in the case of Linscott against Rose, had adjudged the laud to Linscott in fee, and that he had purchased Linscott’s title. This was true; but did that give him the right of possession of the lot? We think not. The same adjudication which decreed Linscott the owner in fee of said lot also declared that Linscott should not have possession of the same until he paid Rose the $141.97 due him under the law for taxes paid and interest thereon. Who was entitled to the possession of the lot in the meantime, until the $141.97 was paid to Rose? Manifestly Rose was. Newman’s right' to the possession under the lease had expired, and there was no one else that had any claim of right to possession under the decree in the case of Linscott against Rose except Linscott, and he could not obtain the possession of said lot until he had paid Rose his $141.97. If Linscott could not get possession without first paying the amount adjudged to Rose, he could not, by selling his interest in the lot to Newman, give Newman any right to the possession until the money was paid to Rose, and the condition upon which the possession could be obtained from Rose was complied with.
It is asserted that Newman made a tender of payment to Rose of the amount of his lien on the lot. An examination of the evidence satisfies us that no tender was ever made. The evidence of Newman himself completely refutes any claim of tender. The offer of $150 by Newman to Rose was a mere offer to settle or compromise the matter relating to their conflicting claims to the lot. Newman testified that, at the time he talked with Rose and offered to settle and pay Rose $150, he did not know how much the claim of Rose under the judgment of the court in the case of Linscott against Rose amounted to; that he had never figured it up. A little calculation of interest shows that the Rose claim amounted to more than $150 at the time Newman told Rose he would give him $150 to settle the matter. The evidence of Rose is, that Newman offered him $150 for a quitclaim deed to the lot, and the evidence of Newman, on cross-examination, harmonizes with this view. Rose being in possession of the lot by his tenant Newman when the suit of Linscott against him was brought and decided, and the court in that case having adjudged that Linscott should not have possession of the lot until he paid Rose the amount of his claim, and said claim never having been paid, Rose remained in possession, and had the right of possession that was wrongfully withheld from him by Newman after the expiration of the lease and the service upon him by Rose of notice to quit, and had, therefore, the right of possession at the commencement of this suit. It is therefore recommended that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
On the 30th day of November, 1885, August Berthiaume executed and delivered to Octave Gagnon a chattel mortgage on a bay mare named “ Fan,” and a bay horse called “Tom,” to secure the payment of the sum of $150 in one year from date. About the 9th day of November, 1886, Berthiaume executed and delivered to C. L’Ecuyer another mortgage upon the same property, to secure the payment of a note for $200, due on the 1st day of December, 1886; this mortgage was taken by Alcide L’Ecuyer, as agent and attorney for the mortgagee; and it is claimed by the plaintiff in error that the former knew that Gagnon had a mortgage upon this property. This mortgage was filed in the office of the register of deeds of Cloud county, on the 16th day of November, 1886. On the 29th day of November, 1886, the plaintiff in error took possession of both horses, under the mortgage, and on the same day filed his mortgage for record in the same county. On the 1st day of December, 1886, N. B. Brown & Co. purchased the note and mortgage executed to L’Ecuyer and demanded possession of the horses of Gagnon, which was refused. This action was brought on the 11th day of December, 1886, in the district court of Cloud county, by the defendants in error, to recover the property described in the ■mortgage executed to L’Ecuyer. The plaintiff in error offered to show that his mortgage was filed for record on the 29th day of November, 1886; the defendants in error objected, for the reason that the filing was of a date subsequent to the filing of the mortgage of the defendants in error. This objection was sustained. The court instructed the jury to return a verdict for the plaintiff below, and overruled the defendant’s motion for a new trial.
The plaintiff in error contends that L’Ecuyer had actual notice of the Gagnon mortgage and took subject, to it; that Brown & Go. got no better right by the assignment than they could have obtained had they taken a mortgage directly to themselves, on the day the assignment was made to them; that on that day Gagnon had actual, open and adverse possession of the property, under his mortgage, having taken it on the 29th day of November, 1886, and also had his mortgage on file at that date. The mortgagor, Berthiaume, left Cloud county about the 16th day of November, 1886. Prior to his departure he delivered the horses in question to Alcide L’Ecuyer, who was agent of the mortgagee, C. L’Ecuyer, and it seems he delivered the property to Sifroy Berthiaume, who retained the horses until the 29th day of November, 1886, when they were taken from him without his consent, by Gagnon. There seems to have been some question as to the open possession of the property by the latter until the suit was commenced. It is claimed that the horses were kept out of sight a portion of the time, and there is some evidence to support this claim. It is argued by the plaintiff in error that L’Ecuyer acquired no adverse interest in the mortgaged property because of actual notice; that Brown & Go. had no specific interest in or lien upon the property prior to the time Gagnon filed his mortgage and took possession; therefore, Brown & Go. acquired no superior equity through L’Ecuyer, because there was none to give. They had no such equity in their own right, because they bought with notice offered by adverse possession and prior record. It is conceded by counsel for defendants in error that if there had been no note connected with the mortgage, or if the note had been non-negotiable, the assignee would have had no better rights than the assignor; but it is urged that the general rule is, that in all cases where a negotiable promissory note secured by a mortgage is indorsed before maturity to a bona fide purchaser for value, the assignee takes the mortgage, as well as the note, free of all preexisting equities. This rule may be correct, but the question is one of application. It is admitted by the defendants in error that Alcide L’Ecuyer, the agent of the mortgagee, under whom they claim, had sufficient notice of the existence of the mortgage of the plaintiff in error to put him on inquiry. It would not, therefore, be an open question between the original mortgagee and the plaintiff in error, as to who would be entitled to the mortgaged property. Now, before the defendants in error acquired any right to the property mortgaged, the plaintiff in error took possession of the same. It is immaterial whether the mortgagee took possession in invitwm, or the mortgagor voluntarily put him in possession, if the act be done in pursuance of a condition contained in the mortgage. (Jones, Ch. Mortg., § 164a.) The evidence established the fact that this possession was acquired two days before the assignment of the note to the defendants in error. Was not such possession good against the defendants in error? The right of the defendants in error did not attach until after the plaintiff in error had acquired possession. If a mortgagee takes possession of the mortgaged property before any other right or lien attaches, his title under the mortgage is good against everybody, if it was previously valid between the parties. (Jones, Ch. Mortg., § 178; Dayton v. Savings Bank, 23 Kas. 422; Cameron v. Marvin, 26 id. 612; Corbin v. Kincaid, 33 id. 649; Dolan v. Van DeMark, 35 id. 304; Chipron v. Feikert, 68 Ill. 284.)
It was said by Chief Justice Campbell, in the case of Par- sell v. Thayer, 39 Mich. 467: “That an immediate and continuous change of possession into the hands of a mortgagee is the best possible notice of his rights against all others.” Now, if it be conceded that the original mortgagee, under whom Brown & Co. claim, had notice of Gagnon’s mortgage, the mortgagee could not have maintained replevin for the mortgaged property. It is true the mortgage was filed for record on the 16th day of November, 1886, but Brown & Co. acquired no rights to the property until the 1st day of December, 1886, when Gagnon was in possession of the property, so that the claim of Brown & Co. did not attach until the plaintiff in error had acquired possession under his mortgage; and we think, under the authorities cited, the defendants in error were bound to take notice of such possession. For the reasons given, we think the district court erred in its charge to the jury.
It is recommended that the judgment be reversed, and a new trial be granted.
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.:
The defendant, Douglass Riggs, was pros-, ecuted upon a criminal information charging him with the commission of the offense of murder in the first degree, and he was convicted of and sentenced for murder in the second degree, and he now appeals to this court. It appears that prior to the trial in the court below he filed a plea in abatement, the second ground of which, and the only one relied on, reads as follows:
“Second. That the defendant is informed by counsel, and believes, that the information filed against him in this action charges the defendant with the offense of murder in the first degree and the offense of murder in the second degree and manslaughter in the first degree; that the defendant has never had a preliminary examination of or for either of said offenses, and has never waived his right to a preliminary examination for either of said offenses; that the only offense of and for the commission of which the defendant has been arrested and had or waived a preliminary examination is the offense set forth and described in a certain warrant issued by William Nyce, a justice, of the examination on which said information by said county attorney has been filed; that the defendant hereby refers to said warrant, commitment, and transcript, and makes each of the same a part of this plea; that the defendant has not had any preliminary examination or waived his right to such examination for the commission of any offense other than • the particular offense set forth in the said warrant above described.
“Wherefore, the defendant demands that the information by the county attorney filed in this action be wholly abated, and stricken from the files of this action.”
The “warrant,” or rather the warrant of arrest, referred to in the foregoing plea, which was the original warrant in the case, omitting all except that portion which states the offense, reads as follows:
“That on the 28th day of October, 1888, in Sumner county and state of Kansas, Douglass Riggs did then and there unlawfully and feloniously attack Robert E. Sharp with a knife, and did then and there cut and wound the said Robert E. Sharp, and the said Robert E. Sharp died from the said wounds received from the jackknife in the hands of said Douglass Riggs.”
The “commitment,” or rather the warrant of commitment, referred to in the foregoing plea, which of course was issued by the justice of the peace after the preliminary examination was had, or after the waiver of the same, as the case may be, omitting all the formal parts, reads as follows:
“ Whereas, it appearing that the offense of murder has been committed, and there is probable cause to believe that the defendant, Douglass Riggs, is guilty of the commission of said offense; and whereas, no sufficient bail has been offered in said defendant’s behalf for his appearance at the next term of the district court of said county to answer said charge alleged against him: you are therefore commanded to take and commit the said defendant to the jail of Sumner county, there to remain until he shall be discharged by law; and deliver this writ to the jailer thereof.”
There is nothing in the record that shows that a full “transcript” of the proceedings had before the justice of the peace that issued the aforesaid warrants of arrest and of commitment, and before whom the preliminary examination may have been had or waived, is contained in the record, and certainly only a portion of such proceedings is contained in or shown by the record. The state filed a demurrer to the above plea in abatement, which demurrer was sustained by the court and the plea in abatement was overruled. Afterward a trial was had upon the merits, before the court and a jury, with the result aforesaid. Perhaps it should also be stated that the defendant refused to plead to the information, and that the plea of not guilty was entered for him, and upon conviction he was sentenced to imprisonment in the penitentiary for the term of 10 years.
The only question presented to this court for decision is, whether the court below erred or not in sustaining the plaintiff’s demurrer to the defendant’s plea in abatement, and in overruling such plea; and the only ground for claiming error in this respect is the claim of the defendant that the original warrant of arrest did not charge the offense of murder in the second degree, of which the defendant was found guilty. It will be noticed that the plea in abatement does not specifically allege that no preliminary examination was had at all, but only that no preliminary examination for the offense of murder in either degree, or of manslaughter in the first degree,, was had or waived, and this for the reason only that the warrant of arrest did not charge murder at all, and did not charge manslaughter in the first degree; and nothing is said in the plea in abatement as to whether the defendant was a fugitive from justice or not at the time when the information was filed. If he was a fugitive from justice at that time, it was not necessary that he should have had any preliminary examination at all, or any opportunity to waive the same; (Crim. Code,. §69; The State v. White, 44 Kas. 514, 522;) and if in fact he had a preliminary examination, even on the aforesaid warrant of arrest, and if it was shown by the evidence upon such preliminary examination, in the language of the warrant of commitment, “that the offense of murder has been committed, and there is probable cause to believe that the defendant, Douglass Riggs, is guilty of the commission of said offense,” then an information charging murder in the degree of which the defendant was found guilty, which was the second and lowest degree of murder, was authorized. As the warrant of commitment was for murder, it evidently shows, prima fade at least, either that the evidence on the preliminary ex amination proved murder, or that the defendant waived a preliminary examination for murder. Besides, it is difficult to say that the original warrant of arrest did not by fair intendment or implication charge murder. Of course it did not charge the offense in such terms as would be necessary to make an information or an indictment sufficient, but did it not in ordinary language charge murder in at least the second degree, by fair and reasonable implication or intendment? It is not necessary to decide this question, and we shall not do so, for we think the plea in abatement itself was insufficient in not expressly alleging that the defendant did not have a preliminary examination at all, or that the evidence upon the same did not show murder, and that he was not a fugitive from justice. (See The State v. White, supra.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
This original proceeding in mandamus was brought to determine whether the present statute relating to the collection of a poll tax for road purposes is intended to apply to residents of cities of the first class, and if so whether the act is valid. An alternative writ has been issued, directing the enforcement of the law as so interpreted, and by a motion to quash the writ the interpretation and validity of the law are challenged.
1. The principal constitutional question argued grows out of the fact that the section under consideration closes with the words: “provided, however, that this act shall not apply to cities having a population of over 80,000.” The contention is made that there is no reasonable ground for relieving cities of that size from the tax, while imposing it upon all others. It has been held that the legislature has the power to exempt residents of cities of the first class from a poll tax for t road purposes which is otherwise statewide. (Shane v. City of Hutchinson, 88 Kan. 188, 127 Pac. 606.) The reasoning on which that decision was rested is indicated by these sentences in the opinion:
“The system of caring for the streets of a city of the first class differs from that by which highways are kept in repair in other cities and in townships. There is a reasonable basis for a classification, giving the poll tax a place in one system and not in the other.” (p. 192.)
The power of the legislature to exempt cities of the first class from the ¿oil tax was justified by the consideration that such cities were governed by a system of laws differing from that of other cities. All cities of the first class, however, are subject to the same general governmental system, and to the same laws, save that an occasional exception has been made in some particular matter, applicable to cities having a certain population. Because the legislature may exempt all cities of the first class from a poll tax to which other cities are subject, it does not follow that it may make a similar distinction between cities having more than 80,000 inhabitants, and other cities governed by the same laws and differing from them only in having less than that population. While for many governmental purposes the classification of cities according to population is natural and proper (Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781), the relation between the mere number of inhabitants (other conditions, including the laws in force relating to streets and taxation, being the same) and the liability to exemption from a road tax for highway purposes is so obscure as to cast grave doubt upon the propriety- of such a distinction, and to make it desirable to reach a decision of the matter in hand without going into that question, if such a course is reasonably open.
2. This consideration requires that we first make a careful inquiry to determine whether such a discrimination was intended, and this involves the question whether the legislature of 1917 meant to extend the enforcement of the poll tax to any cities of the first class. That conclusion would be inescapable if the present section of the law relating to the matter were an entirely new piece of legislation. The section in controversy, however, was enacted as an amendment to one already in existence, and must be construed in the light of the rule that “the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. 1915, § 10973, subdiv. 1; 1 Lewis’ Sutherland, Statutory Construction, 2d ed., § 273.)
The entire section as amended reads as follows; in the original it comprises a single paragraph, but for convenience of reference it is here subdivided into several sections, each designated by a numeral:
“[1.] That section 8790 of the General Statutes of 1915 he amended to read as follows: Section 8790. That all male persons between twenty-one and fifty years of age who have resided thirty days in this state and who are not a public charge shall be liable each year to pay the sum of three dollars to the township trustee or to the proper officer of the city in which such person lives, who shall receipt for the same and account therefor to the treasurer of the township or city and the same shall be expended on the public roads within the township or city in which such persons live.
“ [2.] And all moneys so received by such treasurer shall be turned into the road fund for such township or city to be expended as above provided.
“ [3.] Any city having a volunteer fire department may have the privilege of exempting the members of such department from paying the tax imposed by this section; provided, that if any such person shall fail to pay such tax within thirty days after the receipt of a notice from the township trustee, or the proper officer of the city, that said tax is due, the person so failing shall upon conviction thereof be adjudged guilty of a misdemeanor and fined in the sum of five dollars.
“ [4.] And it is hereby made the duty of the township trustee or proper officer of the city to give such notice to every such person on or before the first day of August of each year, and every such officer who shall fail or refuse to give such notice shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding $100 and may be removed from office in the manner provided by law;
“ [5.] provided, that nothing herein contained shall be construed to prevent the township trustee of any township 'from giving the person notified to pay such tax the privilege of paying the same in labor upon the highway at a time and place to be designated by said township trustee, provided such person is willing to so labor at a daily wage for himself of one dollar and a half, or for himself and team of three'dollars;
“[6.] and provided further, that all persons subject to the tax shall pay the same in money or discharge the same by labor as herein provided, whenever required so to do by the said township trustee, but in no event shall any such payment, either in money or labor, be deferred beyond the last Monday in September, on which date, every township trustee and proper officer in every city shall file with the county clerk of his county a report stating in detail the names of the persons notified under the provisions, of this section and the method of payment required of each and the fact of payment, whether in money or labor, and such report shall also show the names of all persons notified of the demand made upon them under the provisions of this section who have failed to respond; and upon receipt of these reports the county clerk shall certify to the county treasurer the names of all persons who have defaulted in payment of the sum of three dollars as provided herein and the treasurer shall proceed to collect the same in the same manner as personal property taxes’ are collected upon default, after first having given the delinquent ten days’ notice that unless payment is made a tax warrant will issue for the collection of the tax. The list of delinquents certified to the county treasurer shall be by townships and cities, and shall give the post-office address of each person in default, and shall be a list distinct and separate from the regular tax rolls. After taxes become delinquent herein the person from whom due shall no longer have the privilege of paying the same in labor, but must pay the same to the county treasurer in money. The county treasurer shall pay over to the township or city treasurer entitled thereto all moneys collected in the jurisdiction of any treasurer when demanded by such treasurer;
“ [7.] provided, however, that this act shall not apply to cities having a population of over 80,000.” (Laws 1917, ch. 267.)
As already suggested, if this section were an original enactment, the broad language of the first sentence (the only portion having any apparent bearing on the matter) would seem to show clearly that residents of cities of the first class were included within its scope. But that was true also of the section in its earlier form, prior to the amendment of 1917. (Gen. Stat. 1915, § 8790, being Laws 1911, ch. 248, § 36.) The old law contained the exact language designated above as paragraph 1. In the case already cited this court held, for reasons that need not be restated at length, that notwithstanding this language, the history of the legislation, and its relation to other part's of the law, showed plainly that its framers had no intention of extending to cities of the first class a poll tax which had previously not applied to them. (Shane v. City of Hutchinson, 88 Kan. 188, 127 Pac. 606.) The language referred to — that of paragraph 1 — was there interpreted as having no application to cities of the first class. Having been merely reenacted in 1917 as an incident to the amendment of the section in other respects, it should receive the same interpretation now, unless something in the new act, or in other legislation of the same Session, indicates a different purpose.
3. The decision in the. Hutchinson case was influenced to some extent by the fact that in another part of the statute a provision that “each incorporated city of the third class shall constitute a separate road district,” had just been changed so as to read “each incorporated city of thq second and third class shall constitute a separate road district,” the purpose being to extend the law, which had previously applied only to townships and cities of the third class, to cities of the second class. The argument was that the specific question as to what cities should be brought within the operation of the poll-tax law had engaged the attention of the legislature while it was considering this amendment, and if an intention to extend the tax to cities of the first class had existed, expression would have been given to it by including such cities in the clause quoted. It is true that at the time of the adoption of the law now under consideration, the provision making cities of the second and third class road districts had been eliminated from the statute. But this had been accomplished, not by striking out this particular clause, but by the repeal of almost the entire act of which it was a part, and the substitution of a new system, a principal purpose of which was to enable advantage to be taken of the act of congress providing federal aid to the states in the construction of rural post roads. (Laws 1917, ch. 264, effective March 7, 1917.) Neither the repeal of itself, nor anything contained in the repealing act, suggests an intention to make any change in the law with'respect to the classes of persons liable to the poll tax. Therefore, up to the time the law now under consideration was enacted — March 10, 1917— no such change had been made, and the question to be determined is whether anything in the section quoted shows a purpose to make it.
4. As already stated, paragraph 1 was a mere reenactment of the earlier provision. Paragraph 2 replaced a sentence reading; “And all moneys so received by such treasurer shall be paid to the township trustee or proper officer of the city in which the person lives, to be expended as above provided.” Paragraph 3 shows no change whatever. In paragraph 4 “August” is substituted for “September,” and the provision imposing a penalty for failure to give the notice is new., Paragraph 5 shows no substantial change. Paragraph 6 is new, but relates only to the means for the enforcement of the tax. It is manifest that the alterations in the statute so far referred to had no relation to the extension of the poll tax to cities of -the first class.
5. The final paragraph — the 7th — providing that the act shall not apply to cities having a population of over 80,000, does strongly suggest that the draftsman assumed that except for such proviso residents of cities of that size might be liable to the tax. Such a clause in an original enactment in the same language would doubtless be' conclusive on the subject of the legislative intent. But in view of the fact that the amended section as it originally stood did not impose a tax on the residents of cities of the first class, and the other amendments made to it had no relation to that subject, we can not regard the addition of this essentially negative proviso as having the affirmative effect of making a change in the class of persons liable for the tax. The measure originated in the house of representatives. As it was introduced, and as it was passed by that body, it contained no such proviso. The 7 th paragraph was added by amendment on the motion of the senator from Wyandotte county (Senate Journal, 1917, p. 579), and appears to have been the result of a desire, through what was perhaps an excess of caution, to make it clear that nothing in the act affected in any way the city of Kansas City — the only city in the state having at that time more than 80,000 inhabitants. The amendment must be interpreted as merely declaratory of the fact that cities of that size were not affected, rather than as indicating a purpose to enlarge the scope of the bill as it had originally been drawn.
It follows that residents of cities of the first class are not liable to the tax, and the motion to quash the atemative writ must be sustained. | [
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The opinion of the court Was delivered by
Mason, J.:
The plaintiff having acquired a note "for $550 secured by a mortgage on land, also the land itself, sold the land for $200, and brought an action against the mortgagor for the balance of $350. The trial court properly held that the defendant was entitled to an additional credit on the note for whatever amount the land was worth over $200. The jury found in effect that it was worth enough’to wipe out the entire debt. On appeal a reversal was ordered on the ground that there was no substantial evidence in support of this finding. (Bowman v. Clyde, ante, p. 165.)
In a petition for a rehearing the defendant calls attention to the fact that the trial court gave an instruction, which this court did not criticise, that the burden of proof as to the value of the land was upon the plaintiff. The defendant .argues that as, according to this instruction, the burden of proving the value rested on the plaintiff and the jury did not believe his witnesses, they were authorized to find as they did regardless of any other evidence. There is a sense in which the plaintiff may be said to have the burden of proof with reference to the value of the land. In order to entitle the plaintiff to treat the sale as a virtual foreclosure, establishing $200 as the amount of credit to be given to the defendant on account of the land, it was perhaps necessary for him to show that the property brought all it was worth, as a mortgagee of chattels may be required to prove the fairness and regularity of a1 sale conducted by himr if it is to be held valid. (Wygal v. Bigelow, 42 Kan. 477, 22 Pac. 612.) Because of the failure of that proof the defendant was entitled to some further credit, but as there’ is no presumption that the land was worth any particular amount it was necessary that he should produce evidence of the extent of his damages (13 Cyc. 192), and so far as the instruction referred to is to be con strued as indicating the contrary it must be regarded as inaccurate.
This court is still of the opinion that there is not to be found in the testimony of the plaintiff or other witnesses any substantial evidence that the land was worth as much as $1050. The petition for a rehearing is therefore denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in mandamus by which the plaintiff seeks to have chapter 168 of the1 Laws of 1917 declared to be in violation of section 6 of article 6 and of section 1 of article 11 of the state constitution (Gen. Stat. 1915, §§ 208, 228). The state brings the action to compel the defendants to pay into the school fund of Chase county the sum of. $21.
J. H. Bom was convicted of violating the prohibitory law and was sentenced to the county jail of Chase county for a period of thirty days, and to pay a fine of $100 and the costs of the action. Born served the thirty days in jail, but he failed to pay the $100 fine or the costs. The county commissioners compelled Bom to labor twenty-one days on public work and gave him credit for $21 on the fine. Afterward the costs and the remainder of the fine were paid.
Section 1 of chapter 168 of the Laws of 1917 reads:
“That whenever any male person, convicted of a misdemeaner, shall be adjudged to pay the costs of the proceedings by which he was convicted, or a fine or both costs and fine, and for failure to so do shall be committed to the county jail, the board of county commissioners of the county in which such prisoner is confined shall compel such prisoner to work on any street, highway, poor farm, or public works under its direction and control. For each day’s work so performed by him, such prisoner shall receive a credit of one dollar upon the amount of costs, or fine, or fine and costs, and when his credits thus obtained shall be equal, to the amount of such costs, or fine, or fine and costs, he shall be released and set at liberty and such judgment of conviction shall be receipted in full by the board of county commissioners.”
The plaintiff contends that this law violates section 6 of article 6 of the state constitution for the reason that the law does not provide for the payment of the credited amount into the school funds. Section 6 of article 6 of the constitution of this state reads:
“All money which shall be paid by persons as an equivalent for exemption from military duty; the clear proceeds of estrays, ownership of which shall vest in the taker-up; and the proceeds of fines for any breach of the penal laws, shall be exclusively applied in the several counties in which the money is paid or fines collected, to the support of common schools.” (Gen. Stat. 1915, § 208.)
The purpose of the last clause of this constitutional provision is to secure to the school fund all money derived from the payment of fines. This accords with an analysis of the expression “proceeds of fines.” The word “proceeds” is broad enough to include both money and property, but, under the laws of this state, fines are not assessed in terms of property, and are not paid in property. They are assessed in terms of dollars, and are paid in dollars. They may be collected on execution levied on property, but when collected, the fines are paid in money. In A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, this court said: “ ‘The proceeds of fines’ mean, of course, the moneys collected from fines, the amounts realized from fines, and just such amounts, no more and no less.” (p. 14.) There were no proceeds arising from the twenty-one days’ work. The county did not receive anything that it could turn over to the school fund. It received twenty-one days’ labor on public work. That work can not be turned over to the school fund.
The statute under consideration is somewhat analogous to section 253 of the code of criminal procedure (Gen. Stat. 1915, §8173). Under'the last-named statute the board of county commissioners may discharge from imprisonment when certain proof is made that the person imprisoned is unable to pay the fine or costs. This power of the county commissioners has been considered by this court in several cases. (In re Boyd, Petitioner, 34 Kan. 570, 9 Pac. 240; In re Ellis, 76 Kan. 368, 91 Pac. 81; Mikesell v. Wilson County, 82 Kan. 502, 108 Pac. 829.)
The plaintiff contends that chapter 168 of the Laws of 1917 violates section 1 of article 11 of the constitution. This section provides for an equal rate of assessment and taxation. The statute in question provides that the work shall be performed on any street, highway, poor farm, or public works under the direction and control of the county commissioners, and provides that the board shall furnish the necessary guards and shall pay all expenses incidental to the labor performed. These expenses aré paid out of county funds raised by general taxation levied on all the property in the county, including that in incorporated cities. The plaintiff argues that as streets in cities are not under the direction or control of the county commissioners and that as the greater part of the work per formed by prisoners will be upon highways, property in cities is taxed to pay expenses incurred for labor which can not be performed within the cities. 'The, plaintiff cites Railway Co. v. Clark, 60 Kan. 826, 58 Pac. 477, in .support of its contention. Under the statute considered in that case, the railroads were excluded from receiving the benefit of a tax which they paid in common with other taxpayers. Under chapter 168 of the Laws of 1917 the inhabitants of cities receive the benefit of labor performed by prisoners on streets, highways, poor farms, or public works, in the same manner and to the same extent as inhabitants of the county outside the city receive the benefit of such labor. The present action is analogous to City of Emporia v. Griffith, 86 Kan. 976, 122 Pac. 1053, where this court declared that the city of Emporia was not entitled to receive from the county treasury any part of the county road tax levied under section 33 of chapter 248 of the Laws of 1911 (Gen. Stat. 1915, § 8787.) Under this statute county taxes are levied on all the property in the county, including that in cities, for county road funds, and are used for the construction of roads outside the cities. If taxes levied under this statute are valid, the taxes levied to pay the expenses incidental to working prisoners on county roads or other county property are likewise valid.
The conclusion is inevitable that chapter 168 of the Laws of 1917 does not violate either section 6 of article 6 or section 1 of article 11 of the constitution of this state.
The writ of madamus is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff is the uncle of defendant, L. H. Rice, and brought this suit to foreclose a mortgage on residence property in Hill City occupied by L. H. Rice and wife.
The note for $6500 and the mortgage were executed February 4, 1908, signed by L. H. Rice a day or two before his marriage. The answer alleges that on that date the property, which was then owned by 'the plaintiff, was conveyed by warranty deed to L. H. Rice as a voluntary gift, and at the same time and at the plaintiff’s request the note and mortgage were executed, but without any consideration, and merely for the accommodation of the plaintiff, who stated that he was a heavy borrower of banks and others, and desired the note °and mortgage so he could use them as collateral to loans he might make in the future, and that his nephew would never be called upon to pay the note, and that the mortgage should never be enforced against the property. L. H. Rice further alleges in his answer that he had full confidence in his uncle and executed the note and mortgage in reliance upon these representations. The court found for the defendants on the facts, and gave judgment against the plaintiff, who appeals.
The court made the following findings of fact:
“In 1906 the plaintiff was a resident of Hill City, Graham County, Kansas. He was then and now is a bachelor. He has no living relatives in this county excepting the defendant, and had no relative living here at the time of the transactions involved in this suit, other than defendant. Defendant is a nephew of plaintiff. In 1906 defendant came to this county and soon afterwards he entered the employ of plaintiff. At that time the plaintiff was the owner of about 100 quarter sections of land in Graham and Rooks, and about twenty quarter sections in Atchison County. He also owned the lots in question in this suit, being lots 7 and 8 in Hill city. This property was largely free from encumbrance. The business of plaintiff at this time was extensive and required constant supervision. In this state of plaintiff’s • business the defendant entered the plaintiff’s employ at a compensation of $2.75 per day. He assisted the plaintiff in all ways in looking after his business and property. Sometime after entering the plaintiff’s employ, plaintiff became a large owner of a telephone system and defendant ■ was put in charge of it. In 1908 plaintiff was informed of the prospective marriage of defendant with one Miss Clara Law, of good family, who lived about twelve miles south .of Hill City. Miss Law was the owner of some land lying in her neighborhood, where she and her husband-to-be had planned to make their home. Wishing to retain the defendant in his employ and to have defendant do his work from Hill City as his headquarters, and alsq desiring to make a home for his nephew and his wife and also for himself in the future in his declining years, plaintiff proposed to build a house on the lots in suit and give it and the land on which it was to be built to the defendant. The defendant agreed to accept such gift and to furnish a room in the proposed house for the use of plaintiff. The house has been built and occupied by defendant and plaintiff and his wife ever since. The defendant and Clara Law were married on February 5, 1908. The day before their marriage, defendant and plaintiff went to the office of one W. H. Hill, a notary public of this county, residing in Hill City, and had him prepare a warranty deed of the lots in suit for himself as grantor to defendant as grantee. At the same time a mortgage was made by defendant to plaintiff covering the same lots. The express consideration of both the deed and mortgage was $6500.00, but no real consideration was given for it. This deed was delivered to defendant by plaintiff about the day of the wedding. It was kept by defendant for a short time and afterwards was delivered into the possession of plaintiff for safe keeping. When the mortgage was made it was retained by plaintiff. At the time of' delivery of the mortgage it was agreed and understood between and by both the plaintiff and defendant that the mortgage was to be used only for the accommodation of plaintiff in case he so desired to use it but otherwise was not to become of any force or effect as a lien upon the lots in the suit. It was not so used, but has been kept in the possession of plaintiff at all times since. This mortgage was made to fall due five years after date without interest. Neither the deed nor the mortgage have been recorded »in the office of the register of deeds, nor has the mortgage at any time been returned by plaintiff to the assessor for taxation.
“At the time of the making of the deed and the mortgage a first mortgage rested on the lots in suit and on three quarter sections of land worth about the face value of such mortgage, and the lots themselves with their improvements were worth about $8500.00. After the making and delivery of the deed and the mortgage, some additional improvements, which have increased its value to about $4000.00. At the time plaintiff decided to make a gift of the property to defendant the house had not been begun and the value of the property then did not exceed the sum of $1000.00. Plaintiff gave possession of the property to defendant when the house was sufficiently finished for living in, intending that he should have it as his own, and defendant took possession of it and has ever since occupied it as his own, and plaintiff has made his home with defendant as a member of his family. Plaintiff has, sincp the house was built and occupied, put some other improvements on the lots, but he has done so voluntarily and for the benefit of the defendant. He has also paid some taxes assessed against the land, but he has done so voluntarily and for the benefit of the defendant and has been paid the greater part of such advances. The property in suit was given to defendant by plaintiff as a free and voluntary gift. Its possession was taken by defendant and accepted as such gift. The mortgage was given without consideration having been given for it by plaintiff. It was given by defendant and accepted by plaintiff for the latter’s accommodation and not to hold it as a lien upon the lots; and with the understanding and agreement between them that it should never become a lien upon the lots and that payment of it should never be exacted from defendant by plaintiff.”
The findings are sustained by sufficient evidence. The defendants’ claims in regard to the execution of the instruments are borne out by the circumstances set forth in the findings as to the relationship of the parties, and the business and friendly relations which existed between them at the time the instruments were executed and which continued for years afterwards.
The first contention is that the execution of the note and mortgage and of the deed are one transaction. This may be conceded; the answer alleges that they were both executed at the same time and place. They are to be considered as one transaction so as to give force and effect to both when it can be reasonably done. But the application of this doctrine does not prevent either party from proving the facts as to -the actual consideration for either or both instruments. The plaintiff was competent to make a voluntary gift of the property to his nephew. He might have made a voluntary gift to his nephew of $5000 in government bonds, and at the same time and place he might have made an arrangement by which he borrowed the bonds from his nephew to use as collateral security with the understanding that he would return them to the nephew. In a sense the giving and the borrowing would be all one transaction. The possession of the bonds would be prima facie evidence that the uncle continued to own them, but the nephew might be able to establish by competent evidence the facts showing that the bonds belonged to him..
It is contended that the court erred in admitting parol evidence varying the terms of the note and mortgage. The evidence, however, was not offered for that purpose. The defendants concede that the instruments are precisely what the maker and the payee intended them to be — a note and mortgage, which in the hands of a holder in due course would be enforceable against the maker and against the property described in the mortgage. This is a suit between the original parties, and as said in Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016:
“Between the original parties to a written instrument the rule excluding parol evidence in contradiction of a written agreement is not infringed by proof that, the instrument was never delivered, or was delivered to take effect only upon the happening of some future event.” (Syl. ¶ 3.)
“The objection to parol evidence does not apply where it is offered not for the purpose of contradicting or varying the effect of a written contract of admitted authority, but to disprove the legal existence or rebut the operation of the instrument, and in order to determine the validity of the writing the true character of the transaction may always be shown.” (17 Cyc. 694.)
“The rule which prohibits the introduction of parol evidence to vary a written instrument has no application when the legal existence or binding force of the instrument is in question.” (Webster v. Smith, 72 Vt. 12, 13.)
A case in point is Campbell v. Davis et al., 94 Miss. 164. The parol evidence went to show that the actual consideration was $200, but that at the payee’s request the amount was stated as $700 in order that the payee might use the paper as collateral. The court held that this does not violate the rule against parol evidence to vary a writing, but is merely showing the real consideration for the note. ' In the opinion it was said:
“This brings the case squarely within the well-established rule thus admirably stated by Judge Campbell: ‘The terms of an obligation, assumed to be valid, can not be varied by parol; but it may be shown by parol what caused the party to thus oblige himself. That consists with the written obligation, and does not vary it. The right to show the real consideration is a qualification of the general rule of the admissibility of parol evidence to alter the terms of a written contract, and is as well established as the rule itself. What Í bind myself by writing to do can not be varied by parol; but I may always show by parol what induced me to thus bind myself, and thereby test the question whether I was legally bound, as the writing imports, or whether I have been by any cause wholly or partially freed from my obligation.’ Cocke v. Blackbourn, 57 Miss. 689.” (p. 167.)
The negotiable-instruments law (Gen. Stat. 1915, § 6543) authorizes the testimony of which the plaintiff complains. It reads:
“As between immediate parties, and as regards a remote party other than a holder in due course, . . . the delivery may be shown to have been conditional, or. for a special purpose only, and not for the purpose of transferring the property in the instrument.”
The finding of the court that at the time of the delivery of the mortgage it was understood and agreed between the parties that the mortgage was to be used only for the accommodation of plaintiff in case he so desired, but otherwise was not to become of any force or effect as a lien upon the property, that it had not been so used but remained in the possession of the' plaintiff at all times since, is a finding of the facts which brings the case within the section of the statute just quoted.
It is contended there was error in admitting the testimony of Mrs. Law, mother of Mrs. Rice, to the effect that L. H. Rice told her that the plaintiff had given the property to him. There was. other competent evidence fully sustaining the court’s findings of the facts with reference to the gift of the property, so that in any event the admission of the evidence can not be regarded-as reversible error. The trial was by the court, and the court ruled that the evidence would be considered only in connection with the testimony of L. H. Rice, that the plaintiff directed him to make this communication to Mrs. Law, and the evidence tended to show that L. H. Rice was the agent of the plaintiff for the purpose of making the statement.
The findings sustain the conclusions of law by which the judgment barred the plaintiff from all interest in the property and denied his right to maintain the action upon the note and mortgage.
The judgment is affirmed.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents a simple question of practice and procedure. The plaintiff sued the defendant for damages for the death of her husband, who was killed in the service of the defendant while excavating a ditch for a water main. A demurrer to her petition was sustained, and she elected to stand upon her petition, and the case was dismissed at her cost.
Later the plaintiff filed a motion to set aside the order of dismissal and to reinstate the case, and she asked for time to file an amended petition.
This motion was allowed, and the city appeals, contending that when the action was dismissed the court lost jurisdiction of the cause and of the defendant and that the only procedure open to plaintiff, if any, was to commence a new action with the regular service of summons. ■
The city’s contention would be good if the term of court at which the action was dismissed had expired before the motion to vacate the order of dismissal and to reinstate was filed and before the trial judge had made some.order concerning it (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Welling v. Welling, 100 Kan. 139, 163 Pac. 635), but if the motion was filed and some rule or order concerning it was made within the term, the court had not lost jurisdiction and might entertain the motion or make any other appropriate order within its judicial discretion. (Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176.)
3
Had the term of the district court of Elk county expired when the motion to vacate and reinstate was filed, or when the court granted that motion? The record does not show. A recourse to the statute shows that the terms of that court begin on the first Monday in January and May and 'the third Monday in September. (Gen. Stat. 1915, § 3031.) A term of court does not necessarily end until the beginning of the next succeeding term. The order or judgment of dismissal at plaintiff’s cost was made at the May term, on June 27, 1916. The motion was filed on July 11, 1916, and granted on Septembér 14, 1916. The next term of court did not begin until the third Monday in September, which was on September 18, four days later. In the absence of a clear and positive showing that the district court of Elk county had formally adjourned its May term before the proceedings complained of transpired, a presumption of their regularity must be indulged. Omnia rite esse acta prxsumuntur. And so the city must plead to the cause as reinstated; but, if so advised, it may plead the facts relating to any formal adjournment of the May term.
No significance attaches to the fact that the judge of the district court of Elk county was sitting at chambers in Butler county when the action was dismissed, nor because he ordered the dismissal vacated and the cause reinstated, at chambers, while he was holding the regular term of the Chautauqua county district court. Whatever a district judge may do at chambers he may do at any time and anywhere within his entire judicial district; and while he is presiding at a regular judicial term in one county he may occupy his spare time in dispatching judicial business pending in the district courts of the other counties of his electoral bailiwick, if it be of a character which may bé disposed of at chambers. Such is the elastic scope of the new code and related statutes. (Rea v. Telephone Co., 87 Kan. 665, 667, 125 Pac. 27; Bank v. Courter, 97 Kan. 178, 183, 155 Pac. 27.)
Judgment affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. A. and E. R. Amend, residents of Great Bend, were the owners'of 960 acres of land in Gray county. In February, 1915, they entered into a written agreement with T. M. Jinnings, providing that he was to occupy and farm it for three years, one-third of the crop (wheat) to go to the owners. The contract also provided for' his breaking out 500 acres of new land the first year and raising a wheat crop thereon for the benefit of the owners, to be paid in cash for his services in this connection. By September 28, 1915, Jinnings had broken the 500 acres of sod and plowed 400 acres of cultivated, land, but had not sowed any wheat. On that day he was arrested, charged with a felony. He was held in custody until the October term of the district court, when he was convicted and sentenced to serve six months in the county jail. He appears not to have attempted to make any arrangement for the carrying on of the work, and to have been out of funds and credit. He remained in jail until about March 1, 1916, when he was paroled. Within a day or two after the arrest the Amends took possession of the land, which they have ever since retained. Upon the parole of Jinnings they told him that they would not permit him to return to the premises. On April 11, 1916, he brought an action of forcible entry and detainer against them, joining as a defendant John, Ratzloff, to whom they had given a lease. By the consent of the parties the case was transferred to the district court under an agreement that all the matters in controversy should be determined in one action. A referee heard the evidence and made detailed findings covering all transactions connected with the land contract. Judgment was- rendered awarding the plaintiff possession of the land, and requiring him to pay $1859.10, the amount found due the Amends on an accounting. The defendants appeal.
The plaintiff invokes the rule that in the absence of an express provision on the subject in the lease a lessor can not terminate the tenancy on account of a breach of covenants by the lessee. (18 A. & E. Encycl. of L. 369; 24 Cyc. 1349; 24 Cyc. 1392; 16 R. C. L. 969; 16 R. C. L. 1115.) He contends that the written contract was a lease, creating the ordinary relation of landlord and tenant, and that inasmuch as it contained no provision for a forfeiture, no failure to perform the agreements on his part could give the defendants a right of reentry. The defendants maintain that if the contract was a lease at all it was not an ordinary one; that it was more in the nature of a “cropper’s” agreement for the cultivation of land on shares, and that an essential part of it was the plaintiff’s undertaking to perform personal services; that when by his own misconduct he was disabled from carrying out a material part of the agreement he had undertaken, they were at liberty to rescind the contract, settling with him on an equitable basis for what he had already done. The contract used language appropriate to a lease; it purported to create a tenancy for three years. That consideration, however, is not necessarily controlling, as the effect of the instrument is to be determined from its real intent, as gathered from its entire contents, regardless of the technical words used. (16 R. C. L. 584.) It included clauses reserving a right to the owners to go upon the place at all times, requiring the plaintiff to pay the defendants one-third of any receipts for pasturing cattle on the wheat, and providing for a delivery of possession in case of a sale, compensation to be made for the growing crop. We do not consider it necessary to decide what expression most fitly describes the relationship into which the parties entered. There is nothing peculiar about a lease that takes it, out of the operation of the rules of fair dealing that govern in other contractual relations. Here the essence of the arrangement was that the defendants were to furnish the land and certain implements, material and money, and the plaintiff was to furnish his care, skill and labor, and the proceeds were to be divided. Although the contract may be said to have created an estate in the land, it was essentially executory — its provisions were mutually dependent. The plaintiff was not in control of the land to use it at his pleasure. He was bound to handle it in a stated way, and to perform certain acts with regard to it, and these obligations were as important as any other part of the contract. His personal services were engaged; his skill as a farmer was involved; he had no power of substitution or subletting. (See, in this connection, Randall v. Chubb, 46 Mich. 311, and Myer v. Roberts, 50 Ore. 81.) Notwithstanding the absence of any reference in the contract to a right of reentry, it can not be doubted that if he had completely abandoned the place, or had utterly, refused compliance with the agreehient, the owners would not have been required to permit the land to remain idle for several years. A clause of the agreement gave them a right to furnish additional help in the management of the farm, at the charge of the plaintiff,- if thought by them to be necessary. But this can not be regarded as an exclusive remedy. It is not adapted to such a situation as that suggested, nor were the defendants bound to pursue it. The matter to be determined is the effect upon the 'relations of the parties of the plaintiff having been arrested, convicted and confined. There seems to be a dearth of cases bearing upon that question. In Leopold et al. v. Salkey, 89 Ill. 412, annotated in 31 Am. Rep. 100, an. employer was held to have the right to discharge an' employee who had. been hired for a fixed period, because of his being arrested and held in custody for two weeks. That contract was perhaps not closely analogous to the one now under consideration. Moreover, the loss of time was treated as one for which the-person arrested was not to blame, so that the principle applied would not be particularly helpful here. The gravity of the charge of which the plaintiff was convicted indicates that it implied moral turpitude. While the doctrine of res judicata has no application, we must act upon the theory that the conviction was rightful. It can not be assumed that a miscarriage of justice occurred, nor’ could an inquiry into that matter be permitted where it is collaterally involved in civil litigation. (Burt v. Union Central Life Insurance Co., 187 U. S. 362.) This situation is therefore presented: The plaintiff, having obtained possession of the land under a three-year contract, a material part of the consideration being that he should put in a wheat crop .in the fall of 1915, was disabled to perform his agreement in that respect (as well'as in some others) by reason of his having-.committed a crime. The disability was'self imposed. He was entitled to no more favorable treatment than if he'had purposely interposed an insurmountable obstacle to the carrying out of the contract, or had abandoned or repudiated it.
“Where one of the parties to a contract, before the time for performance arrives, has placed himself, by his voluntary act or conduct, in such a situation that he is unable to fulfill his part of the agreement, it maybe treated as an anticipatory breach of the. contract or as a case of impossibility of performance subsequently arising; and in either view, the other party to the contract may thereupon rescind it and recover whatever consideration he may have given under it, or treat it as abandoned, and sue at once for such damages as he may have sustained. The inability to perform need not relate to the whole and every part of the contract, but it must exist with reference to some substantial particular, going to the very essence of the contract and defeating its main purpose and object, or to a part so essential to the residue of the contract that it can not reasonably be supposed that the other party would have made the contract without it.” (1 Black on Rescission and Cancellation, § 210.)
The right of the plaintiff to occupy the land for three years was expressly granted in consideration of his personal occupancy and services. By fair implication it was conditioned upon his being able to comply with that requirement — at least upon his not voluntarily divesting himself of such ability. His enforced withdrawal from active life was not within the contemplation of the parties to the contract. There was practically a destruction of an important part of the subject matter of the contract. The fact that the defendants were willing to agree that the plaintiff should have the right to occupy the farm for three years, assuming that he was to remain a free agent, affords no presumption that they would have been willing to grant him that privilege if he was to be imprisoned for a considerable part of the time. No question of forfeiture, strictly so called, is involved. We think the defendants were entitled to rescind the contract by reason of the plaintiff having disabled himself from performing a material part of his agreement — a part going to the very foundation of the contract, without which it presumably would not have been entered into; that their conduct amounted to an enforcement of this right; that they should be allowed to retain possession of the land, and that the plaintiff should be compensated on an equitable basis for the services performed and expenditures incurred by him prior to his arrest.
The findings of fact made by the referee and approved by the court need not be disturbed. But as the accounting was made upon the theory that the plaintiff would be restored to possession a readjustment will be necessary.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was charged with statutory rape. He was found guilty, was sentenced, and appeals.
1. The defendant urges that he should have been granted a new trial on the ground of newly-discovered evidence. He was convicted of having carnal knowledge of a thirteen-year-old girl. The girl testified that during the months of January and February, 1916, the defendant, on seven different occasions, attempted to have sexual intercourse with her, but was unable to do so; that in April, 1916, he did have intercourse with her; that she became pregnant, and that he was the father of her unborn child. Other evidence was introduced which strongly tended to show that the defendant, on a number of occasions, either had, or attempted to have, intercourse with the girl. She testified that she never had intercourse with any other man! On the hearing of his motion for a new trial the defendant showed that on November 13, 1916, the girl gave birth to a fully matured, nine-months-old child. The defendant insists that he could not have been the father of the child for the reason that the girl’s testimony showed that he did not have intercourse with her until in the month of April, 1916, and that seven months thereafter she gave birth to the child. The defendant argues that if this evidence were introduced on a new trial, and the girl should then testify as she did on the trial, the falsity of her testimony would be conclusively shown; and a jury would not return a verdict of guilty thereon. The paternity of the child was wholly immaterial. Proof of carnal knowledge was all that was necessary. The girl testified positively to repeated acts of carnal knowledge and to seven attempts at having intercourse with her. Her testimony was strongly corroborated by other evidence.
The girl was questioned as to having intercourse with one V. A., and denied having such intercourse. V. A. was placed on the witness stand, and denied having intercourse with the girl. On the hearing of the motion for a new trial affidavits were introduced showing that V. A., after the trial, stated that he had repeatedly had intercourse with the girl. The evidence contained in these affidavits tended to show that V. A. made statements after the trial contradictory to his testimony. If V. A. should at any future trial testify as he did on the defendant’s trial, and the statements made by him as shown in the affidavits should be introduced in evidence, that evidence could only affect his credibility as a witness. Whether or not he had such intercourse with the girl is wholly. immaterial. “A new trial will rarely be given for the purpose of procuring evidence for impeachment.” (Morgan v. Bell, 41 Kan. 345, Syl. ¶ 4, 21 Pac. 255.) Especially should this be true where the newly-discovered evidence is on a matter wholly immaterial. (Clark v. Norman, 24 Kan. 515; Schribar v. Maxwell, 92 Kan. 306, 140 Pac. 865.) A number of other cases might be cited, but it is not necessary.
It was not reversible error for the court to refuse to grant a new trial on the ground of newly-discovered evidence.
2. The defendant sought to prove an alibi by introducing evidence to show that he had regularly and daily been at work at different places during the months of January, February, March, and April, 1916, and that he was at work away from home at all the times when the girl testified that he had attempted to have intercourse with her. He subpbenaed a number of witnesses who he said would have testified to these facts. These witnesses failed to appear. Counsel for the defendant then commenced to write an application for a continuance. While this was being done it was suggested by counsel for the state that the depositions of certain of these witnesses be taken during the noon hour. Afterward, counsel for the state suggested that they might agree on what the testimony of these witnesses would be. An agreement was attempted but none was reached. During this attempt certain admissions were made by counsel for the state as to what the testimony of the witnesses would be if they were on the witness stand. These admissions were withdrawn from the consideration of the jury by the instructions of the court. Defendant argues that he was prevented by the conduct of counsel for the state from getting the evidence desired. He insists that it was error to deprive him of that testimony and to withdraw the admissions that had been made by the state during the conversation which occurred in the presence.of the jury while attempting to agree on-the evidence of the absent witnesses. After counsel had failed to agree concerning the testimony of the absent witnesses, it was not error for the trial court to withdraw from the consideration of the jury any admissions that may have' been tentatively made during the conversation regarding the agreement. The defendant made no further effort to obtain a continuance, and made no effort to compel the attendance of the witnesses. Having made neither of such efforts, he can not complain of his failure to obtain the evidence of these witnesses.
3. The defendant contends that by accident and surprise he was prevented from having a fair trial. The basis for this contention is the same as for the one which has just been discussed, and must be met by the. same ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Several property owners brought an action to enjoin the collection of a paving assessment made by a city of the second class. The contention of Louise N. Christy, one of the plaintiffs, was denied, and she appeals. The land of some of the other plaintiffs was held not to be subject to assessment, and therefore a new levy for a larger amount was made upon the property held to be liable, including that of the appellant referred to. ' She brought another action, and being denied relief, again appeals. The two appeals.have been consolidated.
The principal question involved relates to the interpretation and validity of the rule for determining what property shall be charged with the payment of the improvement, which is contained in these excerpts from the statute, the controversy being as to the effect of the concluding provision:
“The assessments shall be made for each block separately, on all lots and pieces of ground to the center of the block on either side of such street or avenue, the distance improved or to be improved, or on the lots or pieces of ground abutting on such alley, according to the assessed value of the lots or pieces of ground, without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council, or commissioners-” . . . (Gen. Stat. 1915, §1705.)
“Where any improvement . . . shall be made and the piece or pieces of land abutting on such improvement shall not be divided into lots or blocks, the assessments therein provided for shall be made on the piece or pieces of ground adjoining such improvement or through which the same may be located to the distance of 300 feet from the street, avenue or alley upon which such improvements are made extending along the street, avenue or alley the distance improved or to be improved . . . provided that where the street to be improved runs partially through platted ground and unplatted ground, the assessment for the payment of the cost of the construction of the improvement on the street running through the unplatted ground'shall be levied on the lots and pieces of ground along said street, on either side thereof to the same distance on either side of said street as the levy is made where the street to be improved runs through platted ground.” (Gen. Stat. 1915, § 1706.)
The situation to which this rule is required to be applied is shown by the accompanying map, which is largely self-explanatory.
The pavement to be paid for was laid upon Andrews street, from Third street to Fifth avenue. The only tracts which have been platted — divided into lots and blocks — are those designated on the map as “Andrews’ Addition,” “Gilbert’s Addition,” and “Northfield.” The various numbered parcels of irregular size, such as “49,” “49%,” “50,” “50%,” are tracts which have been conveyed by metes and bounds and for convenience have been designated by these numbers; those numbered 50 and 50% being the plaintiff’s. The land was found to be all of the same value per square foot, and the only dispute arises over the question as to where the line should be drawn separating'the property which is liable from that which is exempt. On the west side of Andrews street the assessment covered the east half of the platted tract (block 183 in Northfield addition), forming a strip 150 feet wide, and a strip of the same width taken from the east end of the unplatted tract lying to the south. The figures seem to show that the block measures 310 feet from east to west, instead of 300 even, but no point is sought to be made of this difference. On the east side of Andrews street the assessment covered the west half of block 202 in Andrews’ addition, being all of it lying within 325 feet of the improved street, and, at first, covered also all of the land shown by the map lying east of the street within that distance, including the portion designated as Gilbért’s addition. In the first injunction action, however, the court held that Gilbert’s addition was not taxable, and it was therefore omitted from the assessment as finally made.
The plaintiff contends that the land abutting on the improved street should have been assessed to the same depth on each side of the street — that is, for 150 feet; that if the statute requires an assessment for a depth of 150 feet on one side and of 325 feet on the other it is invalid because it results in an unnecessary and unreasonable inequality amounting to a taking of property without due process of law; she also suggests that if the depth of the assessed strip is not to be the same on each side of the street, then on the east side it should extend to* the middle of the tract inclosed by Andrews and Colorado streets and Fourth and Fifth avenues; and that in any event, if a part of the cost of the improvement is charged to her prop erty, that lying in Gilbert’s addition should also bear a part of the burden.
1. The provision of the statute is that where the street to be improved runs through both platted and unplatted ground the assessment to pay the cost of the pavement through the latter “shall be levied on the lots and pieces of ground along said street, on either side’ thereof to the same distance on either side of said street as the levy is made where the street to be improved runs through platted ground.” We think this means that wherever a part of the ground abutting on the improvement is platted, the distance to the center of the block fixes the limit of the property to be taxed on that side of the street, in the case of the unplatted as well as the platted ground. Where the blocks on opposite sides of the streets are not of the same depth there is nothing in the statute to indicate that the one rather than the other should control, and the language used seems to require that the depth of the blocks on each side shall furnish the criterion for that side. If the blocks on the same side should happen not to be of the same size there would be a serious difficulty in applying the rule, but that situation does not arise here.
2. The fact that the block on the east side of the improved street measures 650 feet from east to west, while that on the west side measures only 300 or 310, results in the unplatted land on the east side being assessed to a distance from the street of more than twice the limit on the west side. Such an inequality, if it were occasioned by an arbitrary and unreasonable method of apportioning the tax,' would be sufficient to condemn the levy as an invasion of the constitutional guaranty against the taking of property without due process of law and the denial of the equal protection of the laws. (Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55.) In the case just cited it was said: “The defendants’ case is not ah incidental result of a rule that as a whole and on the average may be expected to work well, but of an ordinance that is a farrago of irrational irregularities throughout.” (p. 59.) The court there recognized the rule that “in the case of a square bounded by principal streets the land might be assessed half way back from’ the improvement to the next street.” (p. 58.) That is the general principle upon which the statute under consider ation is founded. As the blocks affected may be of different sizes, it follows that at one place the line marking the limit of the taxed district may lie farther from the improved street than at another. But this is only such an incidental inequality as may be expected from the application of any general rule designed to give approximately just results, where there is no possible standard by which exact equality may be assured. The statute fixes 300 feet as the distances for which unplatted ground abutting on an improved street shall be required to contribute to the cost of the improvement, but adds the proviso that where a different limit is fixed for adjacent platted property by the center-of-the-block rule, that limit shall control as to the unplatted ground. The manifest purpose of the proviso was to eliminate an existing source of probable injustice and inequality, not to create a new one. The draftsman doubtless had in mind the likelihood that the unplatted land would in time be platted according to the plan prevailing upon the same side of the street, or the presumption that the unplatted property would ultimately derive about the same benefit from the improvement as property already platted, which was similarly situated. We do not think the inequality shown here is- sufficient to condemn the statute as unconstitutional.
3. We regard as untenable the suggestion that the assessed district might be made to include the west half of the entire tract bounded by Andrews and Colorado streets and Fourth and Fifth avenues. This would be to treat that tract as a block of platted land. Under exceptional circumstances a parcel of land in the heart of a city, bounded by streets, has been held to constitute a “block” for the purpose of the application of the center-of-the-block rule, although no plat had ever been filed designating it as such (Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836) ; but it does not follow that every piece of ground surrounded by streets is to be so considered, and here no exceptional circumstances are shown such as to require that treatment.
4. A more difficult question is presented with respect to the liability of Gilbert’s addition to the assessment. It is manifest that it is against the spirit of the law for this property to be exempted merely because it does not abut on the improved street, and consists of a string of lots touching no street ex cept at the north and east, and has been carved out of an unplatted tract lying within the limits of the asssessment district. Nor do we think the language of the statute requires such exemption. It provides that “the assessment for the payment of the cost of the construction of the improvement on the street running through the unplatted ground shall be levied on the lots and pieces of ground along said street, ... to the same distance ... as the levy is made where the street to. be improved runs through platted ground.” The word “along” must be interpreted according to its context, and does not necessarily imply contact. (See 1 Words & Phrases, 352, 355.) While the property to be affected by the clause quoted would ordinarily be unplatted, we do not think the fact of land being platted would neccessarily take it out of tfce operation of this part of the statute; and in the situation here presented we think Gilbert’s addition should have been required to contribute to the cost of the pavement. As its exemption added to the burden cast upon the plaintiff’s land she is aggrieved thereby.
5. The suggestion is made that as the plaintiff has not paid or offered to pay any part of the tax, she is not entitled to be heard upon any objection that does not go to the entire amount. As already stated, she contends that her land should not be charged with any part of the cost of the pavement, but also makes the contention that in any event the charge made against it is too great. As she denied all liability no tender was necessary to enable her to present any objection she might urge to the entire tax or to any part of it. (Railroad Co. v. Kansas City, 92 Kan. 487, 141 Pac. 302.)
In other respects the rulings of the trial court are affirmed, but the judgments are modified, and the cause is remanded with directions that the enforcement of the present tax be enjoined, and that upon the payment of the charge against her land which results from an assessment on the assumption that Gilbert’s addition is to bear its share of the cost of the improvement, she shall be relieved from further liability. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents a question concerning the validity of a sheriff’s sale of land under a judgment in a partition suit.
The plaintiff, F. S. Macy, and the defendant, D. Garrett, were tenants in common of a tract of land in Seward county, each owning an undivided half interest. Macy brought partition. The defendant Garrett’s answer raised no issue and joined in the prayer for partition. The other defendants disclaimed. The trial court found the facts and appointed commissioners to appraise the land, and to partition it as far as practicable. The property was appraised' at $800, and the commissioners reported that partition in kind was impracticable without prejudice to the owners. Both plaintiff and defendant Garrett elected to take the property at its appraised valuation. The court approved the commissioners’ report, and decreed—
“The sheriff of said county shall sell the same in the same manner as in sales of real estate on execution, but for not less than two-thirds of the valuation placed upon the property by the commissioners, and make due report of his proceedings to this court. . . .
“(Signed) Geo. J. Downer, District Judge.
“Correct — Attest: G. L. Light,
(Seal.) ■ Clerk District Court.”
The record of these proceedings and judgment ordering the sale of the property, signed'by the judge and attested by the clerk of the court, was written on a stereotyped blafik form of document supplied by a well-known firm of stationers and entitled “Order of sale when partition can not be made.” The recitals in the document show that it was in fact a journal entry of judgment. It recited the proceedings, the judgment, the appointment of appraising and partitioning commissioners, their report and-its approval, and the decree that the sheriff should sell the property, etc., and which document, signed by the judge and attested by the clerk, was delivered to the sheriff. That officer treated the document as a writ commanding him to advertise and sell the property, and after due publication he sold the property at public auction to the highest bidder for $1,201, the latter being Macy, the plaintiff. The sheriff made his return upon the document in question. Afterwards, on April 9, 1915, on plaintiff’s motion, the court confirmed the sale. The decree in part reads:
“Now, this day comes the plaintiff in his own proper person, and moves the court to confirm a sale of real estate made by the sheriff of Seward county, Kansas, on March 3rd, A. D. 1915, under an order of sale issued out of the office of the cleric of the district court of said county and state, and dated the 1st day of February, 1915, directing the sale of the following described lands. . . . And the court having examined the proceedings of said sheriff under said order of' sale, finds that the same have been made in all respects in conformity to law, and no exceptions being filed nor objections made, it is ordered and adjudged .by the court, that said sale and proceedings be and the same are hereby approved and confirmed; and it is further ordered,"that O. E. Dobson, sheriff of said county of Seward, make and execute to the purchaser thereof at said sale a good and sufficient deed for the premises so sold.”
Pursuant thereto, on April 9, 1915, the sheriff made a deed of the property to plaintiff.
On June 10, 1915, the defendants filed a motion to set aside the judgment ordering partition, and to set aside all the proceedings had thereunder. The motion was overruled in so far as it was directed against the judgment decreeing partition, but was sustained in part. The judgment on the motion reads:
“That no order of sale has been issued by the clerk of this court, and that the sale of said real estate made by the sheriff of Seward county, Kansas, on the §rd day of March, 1915, was and is void, and that the decree of this court made on the 9th day of April, 1915, confirming said sale was erroneously made and void, and should be set aside and held for naught; that the sheriff’s deed under and by virtue of said sale is void and that all of the proceedings in this case subsequent to the decree and judgment of this court partitioning said real estate and directing the sale of the same are void, and of no effect and should be set aside, and the court further finds that the said motion in all the other respects should be overruled and denied.”
The plaintiff appeals.
It will thus be seen that the technical defect in the proceedings leading up to the sale and subsequent confirmation, if any, was the want of a formal order of sale. The clerk’s docket shows the following entries:
“Action docketed August 25th, 1914.
“Judgment filed Dec. 14th, 1914.
“Feby. 1st, 1915 Prae for Order of Sale filed, order of sale issued, Seward County, Cert. & Seal.
“March 3rd, 1915, Order of sale returned and filed, Reed 65 cts Indx 05, Printers fee to Millman.
“April 8th, 1915, Motion to confirm.
“April 9,th, 1915, Decree of confirmation filed and reed.”
The present incumbent of the clerk’s office, successor to the clerk at the time the original proceedings were had, made an affidavit:
“That I am unable to find any record in my office of the order of sale or the sheriff’s return thereon in case No. 2176, F. S. Macy vs. Lola Cooper et al., ever having been recorded in the records kept for that purpose in my office, although I have made a diligent search for same.”
If there was any fact in dispute, the trial court’s finding would probably conclude the controversy, although the entries on the clerk’s docket are strongly probative of the fact that a praecipe was filed by plaintiff and that an order of sale was issued. Apparently what was done was to hand over to the sheriff the journal entry of judgment labeled “Order of sale when partition can not be made,” signed by the judge and attested by the clerk.
The pertinent statute reads:
“If none of the parties elect to take the property at the valuation, or if several of the parties elect to take the same at the valuation, in opposition to each other, the court shall make an order directing the sheriff of the county to sell the same in the same manner as in sales of real estate on execution; but no sale shall be made at less than two-thirds of the valuation placed upon the property by the commissioners.” (Civ. Code, § 645.)
Defendants contend that the language of the statute, “the court shall make an order directing the sheriff of the county to sell the same in the same manner as in sales of real estate on execution,” not only means that the sale in partition shall be in the same manner as in sales on execution, but that the antecedent steps, the filing of the praecipe and the issuance of a formal order of sale by the clerk, are likewise required. That is straining the language to a considerable degree. But conceding that a separate writ ordering the sale should be issued under the signature and seal of the clerk, and that it should contain the words of authority and salutation, “The State of Kansas to the Sheriff of Seward County, Greeting,” the document labeled an order of sale and which was signed by the judge, and signed and sealed by the clerk, answered every practical purpose, and pursuant thereto the sheriff proceeded, and it can not be discerned how the defendant Garrett was prejudiced in the slightest degree. He did not object to the sale; he did not object to the confirmation. The decree confirming the sale determined the validity of all the proceedings leading up to it. (Knox v. Doty, 81 Kan. 138, 139, 105 Pac. 437.) The confirmation should not have been disturbed. (Civil Code, §§ 141, 581; Carter v. Hyatt, 76 Kan. 304, 310, 91 Pac. 61; 30 Cyc. 283, 287.)
Reversed and remanded with instructions to enter final .judgment for plaintiff. | [
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The opinion of the court was delivered by
Mason, J.:
E. M. Moscript, the owner of a half interest in a quarter section of land, the other half interest in which was owned by his brother William, had some correspondence with F. C. Kurt, an insurance agent and real-estate broker, which the latter contends resulted in an agreement for its sale to him for $2000. Kurt brought an action against Moscript for specific performance. A demurrer to the plaintiff’s evidence was sustained, and he appeals.
The full correspondence between the parties, so far as it affects the presen!; controversy, was as follows:
Moscript to Kurt, March 6, 1915.
“Now Concerning A Matter that I Will Give to You in Confidence Trusting You From Just My Limited Acquaintance, I Want to Sell My Undivided One Half Interest in the Old Home Place, But Can give No Price But Will Make the Price Low. I think the People there Want it. I Have Had all the Tax to pay and All the Burden and Want to Get Out From Under. Go Down there And Look it Over and they Will think You Want it and let them think so. they May Offer You A Deal. I Will Give a Reasonable Commission They are All Sore' On Me Because I Stoped their Easy Way of Making A Living and Nothing is Bad Enough for them to Say about Me I understand Bill has charge of Elmers intres now. Engineer the 'Matter So they Will think Sonieone Else is after it and See What the Result Will Be.”
Kurt to Moscript, March 20, 1915;.
“Now as to that other matter -vyill say that I had a neighbor go and see Will about that. He seems to think he can arrange to get this fixed. In fact, he left an offer- with me.. This man has a claim in Eastern Colorado that he would trade you and pay you $1500 in cash for your Vz interest. This is just a prairie quarter and you will know as much about it as I do. Am giving you the numbers to it so that you can tell more about it. S Vz of NE % and N % of SE 14 Sec. 34, Township 30, Range 42, Caca Co., Colorado. Now I do not know the value of this or anything about it, but you pass judgment on it and tell me what you would do on it, and if you can’t use that land give me your best price and terms oh a cash deal and I will go to Will myself and see what I can do.”
Moscript to Kurt, April 2, 1915.
“The Land in Question I Do Not Want the Colo Land at all Will take $2000 for the Vz of the Old Home Place if sold Soon Have A Standing Offer of $1800 For it.”
Kurt to Moscript, April 6, 1915..
“Now as to the deal on the place my man came in that wanted to trade for it. I told him no trade would go and we talked it over and we thought the price was cheap and we would just buy it in cahoots, and I am enclosing you cheek for $50.00 ernest money. You may make out deed to me, Frank C. Kurt, or if you will leave it in blank and mail to the Spivey State Bank Spivey Kansas together with abstract and when same is complete you get the balance of 1950.00 deal to he complete inside of 30 days.”
Moscript to Kurt, April 9, 1915.
“Yours With Proposition and Acceptance of My Price on the. Undevided One Half interest in the Home Place, is Before Me Fith the Check Fo $50 Dan, Dallahan Has A Mortgage on the Place For $600 Not Due until Next Fall But I Have Written him to Day Asking him to Cancel it and He Can get His Money from the Spivey Bank When it is Paid in there the Balance Can be Sent to Me I Asked Him to Have &A Deed Executed there On Your Kansas Forms and Sent to Me For Signature Or If He Does Not Want to do that You Can assume the $600 and Pay it When Due. and Posably You can Co Your Business Trough His Bank as Well as Through the Spivey Bank But I Presume the Deed will Be Here in A Day Or So.”
Kurt to Moscript, April 12, 1915.
“Yours received today and in reply to same will say, that I did not know there was any thing against the place here, but that will be O. K. ret I will want these papers all to go to the Bank of Spivey as that is where I do my banking, so when the deed is signed if you must return to Dan Cllahan ask him to mail same to Spivey and we will take up his papers there and I wish you would ask him to not tell what the consideration in this deal was, as I would rather not let that out yet even through it don’t make any difference. I presume the abstract is with Dan Callahan & the loan. I have mailed the Ins policy to The Warren Mtg. Co. the premium on this is $13.75 you may either mail check for that or instruct Bank at Spivey to hold that much back on the land deal for me. I wonder if I can sell your brother the Yz I bought from you or if he will bock. But I will chance that.”
Moscript to Kurt, April 19, 1915.
“Dear Sir I -Find I Can Not Get this Little Mortgage Released and this Deal here I wished to Make has Been Closed Because Someone Else got there First I Have Decided Not to Sell the Place Just at Present I am Returning your check I think this Land in Barber Co. will Be worth More money in the Fall then Now & as I Have Just Disposed of a Mine am Not Needing the Money.”
Kurt to Moscript, April 24, 1915.
“Yours with check enclosed at hand and in reply to same will say that I am returning same herewith and if you can’t get the mortgage released I will take it with same on. I will insist that you come through on this deal as this will cause my damage if you dont on account of another deal that this spoiled. You say that you made another deal and that you do not need the money & ect. that did not sem to be your reason for selling in the first place. You just wanted to get this deal closed, you set the price and I took you up and you acknowledged the acceptance of same; now be a man and forward deed to Spivey State Bank as per contract, please send check for the insurance $13.50.”
Moscript to Kurt, April 28, 1915.
“Your Somewhat Sarcastic Letter at Hand and in Reply will Say that The'Only Reason I had" to Sell you that Land Was to Make A Deal Here That I thought I Could Made as Much as I Lost on the Land there which-had to Be Made Quick and in Your Proposition of 30 Days I Had Lost the Deal, that is all there is to It and I turned the Deal Down with You. Find Enclosed your Check for $50 also Check for the Amount Of the Insurance.”
Kurt testified that the neighbor whom he had go and see Will Moscript was John Leslie; that Leslie reported that Will had offered $2500 for E. M. Moscript’s half interest in the land; that he (the plaintiff) knew, when he wrote the letter of March 20, and during the rest of the correspondence, that Will would pay that for it, but that he never communicated this fact to the defendant; that Leslie had offered to give $1500 and the Colorado land for the defendant’s interest in the quarter section referred to, but that the plaintiff had agreed to take it for $2000 on his own responsibility.
The evidence therefore shows substantially these facts: The defendant invited the plaintiff to act as his agent in an effort to sell the land to his brother. The plaintiff accepted the invitation and undertook negotiations to that end. He procured an offer of $2500, but instead of communicating this to his principal he submitted another offer of part cash and part land, saying, “If you can’t use that land give me your best price and terms on a cash deal and I will go to Will myself and see what I can do.” This elicited an offer to sell for $2000, which the plaintiff at once undertook to accept for his own benefit.
Assuming that the letter of April 6 advised the defendant that the plaintiff was undertaking to buy the land himself, and was no longer acting as his agent, and that the defendant with that knowledge continued negotiations which resulted in an agreement for a sale at $2000, we think the court was right in refusing a decree for specific performance. Fair dealing on the part of the plaintiff required him to make known to the defendant the fact that the brother to whom he desired to make a sale was willing to pay $2500 for the land. Had this been done the offer of the owner to sell for $2000 would of course not have been made. The plaintiff, therefore, while still acting as the defendant’s agent, induced his principal to name a price of $2000 by concealing the fact that an offer of $2500 had already been made by the very person to whom he was supposed to be trying to make a sale. It would be unconscionable under such circumstances to permit him to divest himself of his fiduciary character and take advantage for his own benefit of the offer brought about by his unfaithful conduct in withholding information from the owner while still undertaking to act in his behalf. After the relation of principal and agent has ceased the parties may of course deal with each other as strangers, but equity will not permit the former agent to reap an advantage from such a trafisaction at his principal’s expense, the foundation of which was laid during the existence of the agency by withholding information which it was his duty to impart. (2 Ene. L. & P. 1054; 2.C. J. 714,)
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
The city of Stafford entered into a contract for the construction of a waterworks system and electric-light plafit, to cost it $27,500. The contractor abandoned the work before completion, and his bondsman, the Fidelity and Deposit Company of Maryland, finished it. The Farmers National Bank of Stafford provided money for the payment of bills for work and material furnished to the contractor, amounting to $2000, under circumstances which it' maintained entitled it to subrogation to all the rights of the original claimants. The city paid the bank this amount in full, and the .payment left $5534.02 as the balance of the $27,500 appropriated to the work. The bonding company had incurred expenditures of* $6888.62, and contended that the city should have paid the $2000 to it instead of to the bank. It brought an action against the city and the bank on this theory, and recovered a judgment. The defendants appealed, and on the appeal the principal question considered was whether the bank was subrogated to the rights of the .original claimants who had furnished labor and material to the amount of $2000. This court answered that question in the affirmative, saying:
“Had these labor and material men retained their claims they would have been entitled to look to the city for their pro rata share of the contract price, but the city could not be held liable for more for it did not agree to pay more than the contract price. The excess is $1354.60, and it would not be fair or equitable for the bank to lose its entire claim or for the plaintiff to collect the full amount of its claim. The city, without authority and over the protest of the surety, paid the bank’s claim in full, and the surety company may rightfully look to it and to the bank for the difference between the $2000 and the pro rata portion thereof which would have been enforceable against the city by the original holders of the claims paid by the bank had they retained them. This amount can be ascertained if not readily agreed upon by the parties.” (Deposit Co. v. City of Stafford, 93 Kan. 539, 550, 144 Pac. 852.)
On the case being remanded, the district court held, in effect, that the bank’s proportion of the loss should be $489.55 and rendered judgment accordingly. The defendants again appeal, insisting that the bank should have been allowed to retain all of the $2000 excepting $93.89. The decision of the trial court was based upon an apportionment of the loss in accordance with the relative amounts claimed by the parties to the controversy at the time of the settlement. We think this adjustment prejudicial to'the rights of the bank. The city is a mere stakeholder in the matter. The dispute is between the bonding company and the bank. The total cost of the improvement turned out to be $28,854.60. The city’s liability was limited by the contract price of $27,500, and a loss to some one necessarily resulted. This court held that the bank should suffer a proportionate scaling down of its claim. But as the bank was held to stand in the shoes of the original claimants, who furnished labor and material for the improvement, and had no connection in any way with the manner in which the funds provided for the improvement had been disbursed, it was not responsible for the payment in full of any claims that ought to have been scaled down. The cost of the improvement was $28,854.60. The contract price was $27,500, involving a loss of $1354.60. In the absence of some reason to the contrary each claim should suffer a reduction in the proportion that $1354.60, the total loss, bears to $28,854.60, the total amount of claims. In the case of the bank’s claim of $2000 this would be $93.89. We regard this as the extent to which the bank should suffer. As there is no showing of any overpayment through the fault of the city, the rest of the loss must fall on the bonding company.
The judgment is reversed and the cause remanded with direction to-reduce the judgment in- favor of the bonding company to $93.89-and interest. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, Josef Segelbohm, claimed a half interest in a tract of land in Johnson county, and brought this action for partition, possession, and for rents and profits.
In 1886 Josef Segelbohm and his uncle, Michael Rosenberg, jointly acquired the property in dispute, the latter holding the legal title. Later, in 1889 and in 1890, written instruments were recorded in the office of the register of deeds, signed by both Rosenberg and Segelbohm, which disclosed that the parties were tenants in common and that each held an undivided half interest in the property. In 1894 Segelbohm departed for Europe, but before leaving he executed and delivered to Rosenberg a quitclaim deed, which in addition to the ordinary recitals contained the following:
“The object of this instrument is to convey all interest of said grantor in said real estate and especially the interest acquired by agreement dated November 16, 1886 referred to in contract between Michael Rosenberg and Josef Segelbohm recorded February 1, 1889, in book 63 page 4 in said Johnson county and also to especially convey any interest acquired by said last named contract recorded in book 63 page 4 aforesaid and to release the same of record.”
In 1898 Rosenberg made a will bequeathing all his property, and specifically mentioning the property involved herein, to his wife, Annie Rosenberg. He charged this particular property with an item of $1000 in favor of a Jewish church, to be paid when his widow should sell it. The will in terms de dared that all his property was the fruits of the j oint efforts of himself and his wife. Sometime later Michael died and his will was probated, and pursuant thereto his widow entered into possession. She married Michael’s brother, Alexander Rosenberg, in October of the same year, 1898, and on her wedding day conveyed part of the property to Alexander. In 1899 Alexander and Annie conveyed part of the property to a trust company. In 1899 Annie and Alexander were divorced; and in 1900 she was married to the defendant Michael Krockover; and in 1912 she died after bequeathing all her property to Krockover.
Segelbohm filed this action against Krockover and others on September 1, 1914. Among the trial court’s findings of fact are:
“VII. About the first of October, 1894, Josef Segelbohm was about to maké a trip to Europe to stay for some time, and in order to place the title of the said lots so that Michael Rosenberg could sell the same if he had an opportunity an oral agreement was entered into between Josef Segelbohm and Michael Rosenberg, that said Josef Segelbohm should make a quit-claim deed of his interest in said real estate to Michael Rosenberg, and that if Michael Rosenberg should make a sale of said land, that he would send Josef Segelbohm’s part of the proceeds of said sale to him, and in accordance with said oral agreement Josef Segelbohm, a single man, made a quit-claim deed of said lots to Michael Rosenberg on the 8th day of October, 1894, which was filed for record on October 12, 1894, in the office of the register of deeds on Johnson county, Kansas, and Josef Segelbohm soon thereafter went to Europe and remained there for nearly a year and afterwards returned to Kansas City, Mo. .
“XVI. Since the death of Michael Rosenberg in 1898 the plaintiff, Josef Segelbohm, has not been in possession of any part of the said real estate and has not made any improvement thereon, and has received none of the rents or profits from said lands, and has not asserted or attempted to assert any rights of ownership over said property. Said Josef Segelbohm has been a resident of Kansas City, Jackson county, Missouri, at all times since some time in 1895.
“XVII. After the death of M. Rosenberg, Annie Rosenberg made statements to outside parties that Joe (meaning the plaintiff) owned an interest in said land.”
The trial court likewise made certain conclusions of law:
“I. Prior to Nov. -28, 1890, M. Rosenberg held an undivided one-half interest in the land, in trust for Josef Segelbohm, under an express trust.
“II. By the release executed Nov. 28, 1890, and the quitclaim deed executed October 18, 1894, Josef Segelbohm released the previously existing trust.
“III. The oral contract entered into at the time of making the quitclaim deed October 18, 1894, was an attempt to create an express trust by parol, and is void.
“IV. The making and probating of the will of M. Rosenberg in 1898 was a repudiation of any existing trust and started the statute of limitations.
“V. Admissions made orally to third parties by Annie Rosenberg after the death of M. Rosenberg, and not communicated to Josef Segelbohm, did not toll the statute of limitations.
“VI. Plaintiff’s action is' barred by the statute of limitations.
“VII. Plaintiff is guilty of laches.
“VIII. Defendant, Krockover, is entitled to judgment .against the plaintiff.”
It will thus be seen that the learned trial court found three distinct but insuperable legal barriers to the plaintiff’s claim to an interest in this property — the statute of trusts and powers, the statute of limitations, and laches. Any one of these, if pertinent, will sustain the judgment. Let us test the decision by the use of the simplest first, and this is the fifteen years’ statute of limitations. (Civ. Code, § 15, Gen. Stat. 1915, § 6905.) When Rosenberg made his will bequeathing this particular land to his wife, and charged it with an item of $1000 in favor of the church, to be paid when his widow should sell the property, in the same instrument asserting that the property was exclusively the fruits of his own and his wife’s industry, those acts were a clear repudiation of his holding an interest in the property as a trustee or tenant in common for the benefit of his nephew Segelbohm, if such trusteeship or tenancy in common then existed. This occurred in 1898. His will was probated on April 12,1898. Those facts were notice to Segelbohm that the property was being openly and notoriously held adversely to his pretensions as a tenant in common. (Black v. Black, 64 Kan. 689, syl. ¶ 2, 68 Pac. 662; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791; Walline v. Olson, 84 Kan. 37, 113 Pac. 426. See, also, Underwood v. Fosha, 96 Kan. 549, 551, 152 Pac. 638.) That was more than fifteen years before Segelbohm began to assert his interest. The other conveyances to third parties which were made over fifteen years prior to the com mencement of this action were to the same effect. While the ordinary rule is that the possession of one tenant in common is the possession of all his cotenants, and as between them no statute of limitations is involved, yet the general rule is otherwise where the one holding the title and. possession openly and notoriously asserts and exercises such acts of exclusive ownership and exclusive right of disposition as to show clearly and convincingly that the property is being held adversely to any claim of his cotenant to an interest therein. Here there was no concealment in any of these transactions which might make the general rule inapplicable. Disavowal of cotenancy was made by Michael Rosenberg in his will in 1898. Notice of this was given to plaintiff when the will was probated. Disseizin of plaintiff occurred when Rosenberg’s widow entered under Rosenberg’s probated will the same year. Other acts of disseizin of plaintiff were the later conveyances of the property in derogation of plaintiff’s claim of right therein. The oral evidence of witnesses relating to statements made by Rosenberg’s widow, not made in the presence of plaintiff, did not change or cure that disseizin. (See Schoonover v. Tyner, 72 Kan. 475, 479, 84 Pac. 124; Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019.) It seems clear that the plaintiff’s action was barred by the statute of limitations. While laches is usually involved in questions affected by the statute of limitations, it may sufficiently bar a recovery on a period of time of less duration; but neither laches nor the effect of the statute of trusts and powers need to be considered; nor is it necessary to consider whether other provisions of the statute of limitations, of shorter duration than fifteen years, would control this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West. J.:
March 19, 1914, plaintiff filed his petition in the district court of Haskell county against John A. Edwards and B. F. McCracken, alleging that they were the owners of 750 head of cattle, more or less, and that such cattle had broken into the plaintiff’s premises and destroyed certain trees and grass to his damage of $800. May 14, 1914, the defendants filed a joint motion that a third person be made a party defendant, and on the same day filed their joint answer denying liability and praying judgment for costs. September 17, 1914, the defendants filed a joint motion to require the plaintiff to ■make his petition more definite and certain. Septebmer 24, 1914, a stipulation was filed that the plaintiff might have until October 28 in which to amend his petition and that the case be continued until the next regular term. October 27, 1914, plaintiff filed his amended petition and on April 5, 1915, the cause came on for hearing upon the motion of the defendants to add a party defendant, which was overruled. The case being called for trial the defendant, Edwards, demanded a jury, and none being in attendance the trial was continued until the next regular term when, the case being plied for trial, Edwards obtained leave to file an amesdij[ie).it to his answer to the effect that McCracken was in nowise interested in the action and in nowise liable to the plaintiff and had been made a defendant only for the purpose of attempting to give the court jurisdiction of Edwards, a bona fide resident 'of Greenwood county,’ “and this defendant objects to the jurisdiction of this court to hear and determine the matters involved herein.” Upon the close of the plaintiff’s testimony Edwards demurred thereto as not in any way tending to prove any cause of action against McCracken, and the demurrer was sustained. Thereupon Edwards demurred to the testimony as being insufficient to sustain the allegations of the plaintiff’s petition and moved that the case be dismissed as to himsqlf, which demurrer and motion were overruled. Verdict and judgment went against the defendant Edwards, who appeals and asserts that the one question involved is the jurisdiction of the court, the action as he claims having been wrongfully brought in Haskell county. The plaintiff insists that Edwards submitted himself to the jurisdiction of the court and can not now raise the question of jurisdiction.
None of the evidence is brought up, and there is nothing except the result to show that the case as to the defendant Mc-Cracken was fictitious or collusive. Not until after all the preliminary questions of pleading had been settled and the plaintiff had introduced his evidence, did it appear that the case should be dismissed as against McCracken. Whether the plaintiff failed because his evidence was insufficient to establish a cause of action which he had, or because he had none in fact, we are not advised, nor whether or not he made Mc-Cracken a defendant because he thought he had a case against him, or merely for the purpose of subjecting Edwards to litigation in Haskell county. ■
It has been repeatedly declared that before the nonresident can be joined a' cause of action must exist against the local defendant. (Brenner v. Egly, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176,; Rullman v. Hulse, 33 Kan. 670, 7 Pac. 210; Linney v. Thompson, 44 Kan. 765, 25 Pac. 208; Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837.) In Brenner v. Egly, suit was brought against George Brenner, a surety, who, in the local county, was joined, with another against whom the action was dismissed. In the opinion it was said that in such cases both parties should be real and proper parties to the action and shown to be such on trial. That where the local defendant obtains a judgment in his favor or the action as to him is voluntarily dismissed, it would be presumed that he was not a real or proper party to the action, but that he was made a party for the purpose of suing the other in a county in which he did not reside and could not be summoned. In that case the nonresident set up suretyship in his answer and asked therein that his rights be protected, and that the case be dismissed against him if judgment should not be recovered against" the local defendant. Rullman v. Hulse was an action on three promissory notes. The nonresident moved to discharge "the attachment on thé ground that the court had no jurisdiction of the property and that the order of attachment was void. The motion was granted, and this was held proper for the reason that the cause was not rightly brought in the local county, and hence there was no authority to issue an order of attachment to another county. In the decision denying a rehearing (33 Kan. 670, 7 Pac. 210), it was held that as the rightfulness of the suit in the local county was not one of the issues presented by the pleadings, and could not be heard or tried upon the final trial upon the merits, the only manner in which it could be heard or tried would be upon a motion or a plea in the nature of a plea in abatement “filed and presented for hearing before answer to the merits, and before any general appearance in the case.” (p. 673.) Linney v. Thompson was an action on a note; the plaintiff’s ownership of the note was denied and on this depended his right to bring the suit and join the other defendants, and it was held that this was not a matter which could well be heard upon a plea in abatement, and that the defense was not properly set up by motion to set aside the summons and service to dismiss the action, but should have been raised by answer so that the question of ownership could be tried by a jury if demanded. In Hembrow v. Winsor a demurrer was sustained as to certain defendants who were nonresidents of the state and left pending against a nonresident of the county where the action was brought, and it was held that his motion to dismiss was rightly sustained. He had in his answer challenged the jurisdiction of the court and alleged that the action was brought in bad faith for the purpose of obtaining jurisdiction over him.
When, therefore, the question of jurisdiction is properly and promptly raised and presented and it is made to appear that the local defendant was sued for the mere purpose of subjecting a nonresident defendant to litigation in the county where the suit was brought, the nonresident is entitled to a dismissal as to him.
Another familiar rule is that one who voluntarily subjects himself to the jurisdiction of the court, can not thereafter question such jurisdiction. In Meixell v. Kirkpatrick, 29 Kan. 679, an action to recover certain municipal bonds, the case was brought in Wilson county and the defendant resided in Labette county. The court said:
“Matthewson was sérved in that county, and Meixell in Labette county. Now, if Matthewson and Meixell were improperly joined as defendants, and that fact was made to appear, and the single question of jurisdiction over Meixell presented, it may be conceded that no jurisdiction over Meixell was obtained, and that the plea to the jurisdiction should have been sustained. But it is also true that the district court of Wilson county had ample jurisdiction over the subject-matter; and when Meixell appeared in that court, and by his pleadings raised questions other than jurisdictional, he thereby submitted himself and his rights to the jurisdiction of that court. When served with the summons, he appeared and filed a demurrer, which while it alleged a lack of jurisdiction, presented also a number of other defenses, and defenses on the merit. Such plea, by the prior adjudications of this court, was equivalent to an appearance. A party who denies the jurisdiction of the court over his person must first present this single question. He may not mingle with his plea to the jurisdiction other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction.” (p. 682.)
In Wells v. Patton, 50 Kan. 732, 33 Pac. 15, the rule was stated to be, that in such actions the question of jurisdiction must be raised as early as possible either by motion,, plea or answer.
“If he unites a defense to the merits in his answer with his plea to the jurisdiction, the trial court ought to settle the question of jurisdiction before proceeding to try the other issues in the case; but if the defendant objecting to the jurisdiction of the court, proceeds and tries the whole case upon its merits, and invokes a judgment of the court upon the merits, he submits himself and his rights to the jurisdiction of the court, and can be no longer heard to say that it had no jurisdiction.” (Syl. ¶ 4.)'
This was an action to recover for an alleged conspiracy. In the opinion it was said: -. • ■
“Of course, a trial court, in the exercise of a wise judicial discretion, will go very far to set aside any service obtained by gross' abuse of judicial process. But a defendant who asks this to be,done should not insist upon the court taking jurisdiction of his person for the purpose of protecting, him upon the merits of the case, and, after causing costs to be had in the case uj>on the merits, then seek to repudiate his submission to the jurisdiction of the court.” (p. 737.h
In Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905, a fionresident who raised the question of jurisdiction by motion- to quash, making a special appearance in the action for that purpose, was held to be entitled to a dismissal of. the case as to him.
It has been held that a general appearance is entered by a defendant when he files a motion to make the plaintiff’s pétition more definite and certain, when he joins in a stipulation that plaintiff may have further time to amend his petition, or when he files general denial. (Bank v. Courter, 97 Kan. 178, syl. ¶ 3, 155 Pac. 27.)
“Where defendants who have been' summoned personally and [defendants who have, been summoned by publication service, join in a pleading or motion raising questions of law and questions of fact.involved in the general issue of a cause, a general appearance is thereby entered by all the defendants.” (Meador v. Manlove, 97 Kan. 706, syl. ¶2, 156 Pac. 731.)
For more than a year after entering his first general 'ap-* pearance in the action the defendant, Edwards, failed to raise any question as to jurisdiction of the court over him and under the foregoing, authorities he was in court for all purposes. At the close of the plaintiff’s evidence it being determined on motion that there was no. case made out against McCracken, Edwards stood upon his claim of right to dismissal as to himself and offered no evidence in defense of the case already presented. The subjct matter — the damage to the plaintiff in Haskell county by the cattle — was one of which the court might take cognizance as a court of general jurisdiction. While the action could not be maintained against a nonresident unless properly joined and served, save by his consent, whenever he consented in fact and in law to the exercise of the court’s jurisdiction over him — the subject matter being within its jurisdiction — no legal impediment remained to a full adjudication.
It is conceded that the petition stated a cause of action on Its face and the mere fact that the action failed as to the local defendant was not sufficient under the circumstances and in the condition of the pleadings to entitle the nonresident defendant, who had in so many different ways appeared generally in the action, to a dismissal of the case as to him.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note, and for application of the proceeds of the sale of chattel security. From an adverse judgment one of the makers of the note appeals.
Jeltz was a persistent borrower from the bank. On May 1, 1915, a renewal note for $1768 was given to the bank, signed by Jeltz, and signed by Wm. Peoples, the appealing defendant, as makers. Peoples has since died and is now represented by his administratrix. The note was secured by a chattel mortgage given by Jeltz. On May 15, Jeltz borrowed more money of the bank, and presented to the bank a note for $1926, which included the note of May 1 and the new loan. The note of May 15 was signed by Jeltz, and purported to be signed by Peoples. When this note was given the chattel mortgage se curing the note of May 1 was released, and a new chattel mortgage was given by Jeltz, which made a slight change in ,the security. The new chattel mortgage covered future advances, but provided that in case of foreclosure the debt existing at the time the mortgage was given should be paid first. Subsequently other loans were made to Jeltz, until his indebtedness was represented by a note for $2900, signed by Jeltz, and purporting to be signed by Peoples. Jeltz left the state. Peoples denied signing the note for $2900, and other notes which preceded it. On the occasion of renewals old notes would be surrendered. Consequently the bank could do no more than plead the various loans of money, describe the notes which had been given, and pray judgment for the amount due. Peoples admitted signing the note of May 1, 1915, and judgment was rendered against him accordingly. The property covered by the chattel mortgage was sold by a receiver, and the net proceeds, in the sum of $1023, were applied to discharge the otherwise unsecured balance due the bank from Jeltz.
The defense to the action was that Peoples was a surety, and in response to special questions the jury found that Peoples borrowed no money of the bank, was a surety only, and notified the bank of his true relation to the paper. Peoples concedes that the cancellation of the note of May 1 and the substitution for it of the forged note of May 15, and other forged notes, did not discharge his liability, but he says no judgment should have been rendered against him, because the suit was for indebtedness and not on the note, and that his liability as surety arose solely on the npte. The contention relates primarily to a matter of form, and not to a matter of substance. It might have been met by a very simple amendment when the note which Peoples signed was identified, and if necessary the amendment would now be treated as having been made. No amendment, however, was necessary. Peoples signed as maker. The obligation was his. He was principal debtor, primarily liable under the negotiable-instruments law, and can not be heard to say that the indebtedness was not his, no accident* mistake, or fraud affecting the capacity in which he signed having been alleged.
The maker of a promissory note, “by making it,” engages that he will pay it according to its tenor. (Kan. N. I. L., § 67, Gen. Stat. 1915, § 6587.) If a person sign other than as maker, drawer, or acceptor, he is deemed to be an indorser, “unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” (Kan. N. I. L., § 70, Gen. Stat. 1915, § 6590.) In this instance Peoples not only failed to indicate by appropriate words an intention to be bound in a special capacity, but he signed as maker. Therefore, his relation to the bank was fixed by virtue of his signature and the statute, and the inquiry into the suretyship relation did no more than establish his relation to Jeltz.
It is insisted that in any event the proceeds of the chattel security should have been applied to the payment of the note of May 15. That note to the extent of $1768 was a renewal of the note of May 1 which Peoples signed, and the chattel mortgage securing the note of May 15 covered substantially the same property as the chattel mortgage released on May 15. This contention is made on the ground: first, that Peoples was a surety; and second, that the chattel mortgage provided the debt in existence on May 15 should be paid before subsequent advances were paid. The answer is obvious. So far as the note signed by Peoples and on which judgment was rendered against Peoples is concerned, his liability is the same as if Jeltz and the Jeltz chattel mortgage were not involved. Peoples signed the note as maker. He did not limit his liability to that of a surety, and he was not a party to the chattel mortgage. If Jeltz were appealing, he might argue that the provision of the chattel mortgage relating to the application of proceeds of a sale of the property constituted an appropriation of such proceeds to the payment of the money first borrowed. Peoples had no such contract with the bank, and his obligation to the bank is measured by the terms of the instrument which he signed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from a judgment of conviction for maintaining a nuisance, claiming that the verdict of guilty was not supported by the evidence.
The facts in substance are that the Hudson barn on a farm north of Chetopa was searched and several barrels which contained or had contained whisky were found, and some sacks into which bottles of whisky had been packed as if for convenient carrying by some person. The defendant on the day of the search was on the premises unloading some coal. A transfer man had been seen at different times going in the direction of the Hudson place with barrels. A search was made on January 20, 1917. The drayman testified that about Christmas week before this the defendant met him at the depot and said he had some stuff at the depot and wanted it delivered, and gave him'bills of lading, telling him he could not deliver it until late in the evening, and to meet him at the depot at 4:30. That he met him at 4:45, but had no further conversation or transaction with him. The defendant paid him for the delivery at the time he turned over the bills of lading; that he delivered two common wooden barrels with tags on them; that about August 1, 1916, he had made the first delivery of two such barrels and had delivered three on the 20th of January, 1917. This witness testified that he did not deliver any barrels at the Hudson place on January 20, by the direction of the defendant, and so far as he knew the defendant had nothing to do with the matter. Witness did not see him at all. The tags introduced in evidence did not contain the name of the defendant. One witness testified that on January 20 he saw the drayman going toward the Hudson place and followed; that when he got there he drove around to the north side of the barn, unloaded the barrels, and rolled them inside and put them in the barn. Witness saw the defendant there at the time, east of the house as he remembered; when he came back later for the search he saw the defendant unloading coal out of a wagon. On redirect examination he testified that when he first saw the defendant that day it was in the forenoon, and he was northeast of the house coming from the barn with a bucket of coal.
The state contends that while there is no evidence connecting the defendant with the shipment of January 20, a common nuisance was maintained at the Hudson barn, and that the defendant took advantage of the situation and used the barn for the illegal storage of liquor that belonged to him, and argues that when during the previous Christmas week he told the drayman to deliver some stuff he meant whisky, as “stuff” among bootleggers means whisky.
The evidence is sufficient to warrant the conclusion that the drayman had for several months delivered whisky from time to time at the Hudson barn; that it was kept there for an unlawful purpose, although there is no evidence showing or tending to show that any persons drank on the. premises, or resorted there for that purpose. The fair inference would be that the barn was used as a storehouse from which whisky could be sold, or peddled by bootleggers. It would also warrant the conclusion that a month previously the defendant had evinced a substantial and practical interest in whatever whisky business was going on at the Hudson barn. Whether he did this on his own account or for someone else (the testimony seeming to indicate that he is a colored man) is not made clear. Several of the Hudsons were at the place and presumably they or some of them were in control thereof. The mere fact of the defendant’s presence there in the way indi cated. on the 20th of January, in connection with the transaction of the drayman the previous Christmas week, is not evidence sufficient to convict him of maintaining a nuisance on the latter date.
Common sentiment in this state has for some years been so strongly in favor of enforcing the prohibitory law that it is usually no trouble whatever to convict when there is evidence which would work a conviction in any other case, and frequently when it would not. The state has no right to punish a citizen criminally on mere súspicion not amounting to proof. Such suspicion is all that can be found in, or fairly inferred from, the record, and it follows that the conviction was erroneous.
The judgment is reversed with directions to discharge the defendant. | [
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The. opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Peter Engelbrecht against J. B. Herrington, the executor of the will of Andrew Engelbrecht, deceased, to recover land, or rather the value of land, which it is alleged the deceased orally agreed to devise to plaintiff. Plaintiff appeals from a judgment in defendant’s favor.
In 1878 Engelbrecht purchased a farm and at the same time executed a mortgage for most, if not all,- of the purchase price. He and his family occupied it as a homestead from that time until June, 1909, when he sold and conveyed it to another. It was alleged by plaintiff that in 1884 hi,s father entered into an oral agreement with him by which it was agreed that if plaintiff would stay at home, work upon the farm and help earn money enough to pay the mortgage debt against it, he would leave plaintiff one-half of it at the death of himself and wife. It was further alleged that in June, 1909, the father, in violation of the contract, had sold the farm for $8,000, when it was really worth $12,000, and he therefore asked a recovery of $6,000. The answer of the defendant was a general denial and an averment that the action was barred by the statute of limitations. The testimony offered in support of the plaintiff’s claim consisted principally of conversations which the plaintiff claimed to have heard between his father and mother, both of whom had died some time before this action was brought. He testified that one of these occurred about 1885, that the other was several months later, and that in each conversation his father had said to his mother that he had entered into a contract with Peter, by which he had agreed to leave Peter one-half of the farm when they (his parents) were through with it. The response of the mother in each case was: “I am glad of it.” According to his testimony the same words were used by the father and mother in each of these conversations. He testified that about five years afterward he heard his father say to,his mother that Peter had performed his part of the contract and that he now had money enough to pay off the mortgage. Although Peter was present at all of the conversations, he says he took no part in any of them. Nothing was said by either the father or mother to him nor by him to them. On this account it could not be said that these statements constituted communications or transactions had between him and deceased persons. ’ Other witnesses, however, stated that they heard the father in his lifetime praise Peter and his work, and say that he would give the property to- Peter when he died. Evidence produced by defendant consisted of facts and circumstances inconsistent with the contract pleaded. For instance, in 1901 Andrew Engelbrecht made a will leaving a life estate in the farm to his wife, and at her death the property was to be equally divided among his children,-including Peter. There were eight children in the family, and it appears that others of them worked on the farm after they reached majority, although Peter and Mrs. Herrington were at home much longer than the others after they became of age. When the farm was sold there was no recognition by Andrew Engelbrecht of a contract to give his son one-half of the land nor any suggestion that Peter had any interest in it. After his wife’s death Andrew Engelbrecht executed another will, the one probated after his death, and in it he gave his property in equal shares to his children, with the exception of two of them, but Peter was given a share as though he had no claim or interest in the «estate.. The general verdict of the jury was in favor of the defendant, and they also returned answers to a number of ;special questions. Among- other things, the jury found that ■.the alleged contract had been made between plaintiff and his father, and that plaintiff had performed his part of it; that the farm was' a homestead when the contract was made, but that the1 wife of Andrew Engelbrecht did not j oin in making the contract; and that she was afterwards informed that a contract had been made, when she said: “I am glad of it.” It was also found by the jury that the oral contract could not be performed in a year, and that it was not intended by the parties that it should be performed within that time; and further, that the plaintiff could be compensated in money for his services rendered to his father from 1884 to 1889, and that the first time he ever made any claim to the farm or to the proceeds of it was in January, 1915, which was shortly before this action was brought. The plaintiff moved for judgment on the special findings and the admissions of the parties, but the court denied the motion and awarded judgment in favor of the defendant.
Much attention has been devoted to the question whether the parol contract was within the statute of frauds and therefore unenforceable on the grounds (1) that it was a contract affecting real estate, and (2) that it was not capable of performance nor intended to be performed within one year. Another contention argued at length is that the subject of the contract was a homestead and that as the wife did not join in the execution of the contract it was absolutely void. It is unnecessary to determine these questions so ably argued by •counsel, as in the opinion of the court the contention that the action is barred by the statute of limitations must be sustained.
The contract was made in 1884 and fully performed by plaintiff in 1889. He had completed his part of the contract twenty-six years before the action was brought. According to his version of the contract he was not to receive one-half of the farm until his parents were through with it. The expressions used were intended-to convey the meaning that if he worked at home and helped to pay the mortgage debt his father would leave or -Will him one-half of the farm. The agreement, as we have seen, was in parol. He is seeking damages in lieu of specific performance of the contract, recognizing that performance of it has become impossible. An action upon an oral contract like the one under which plaintiff claims is barred within three years after the cause of action accrues. When a time is fixed for the performance of a contract, ordinarily there can be no breach of it until that time has arrived. Where an owner of land makes a promise to an employee that if he will perform personal services for him during his lifetime, the employee will be given a share of his estate, the right of action in favor of the employee will not accrue until after the death of the employer, unless in his lifetime he has committed an actionable breach of the contract. (25 Cyc. 1074.) If a party -repudiates and renounces the entire contract the other is absolved from its obligations and may at his option bring an action at once for the damages he has sustained. (17 R. C. L. 759.) An illustration of the rule is found in Heery v. Reed, 80 Kan. 380, 102 Pac. 846, where a girl, Maggie, was taken into the home of Devenney to live with and work for him until the death of himself and wife, in consideration of which she was to receive all of his property at the death of himself and wife. After many years of service Devenney discharged her and drove her from his premises, and he made no provision for her in his will. In an action brought by her to recover the estate, it was contended that the discharge was a repudiation of the contract which set the statute of limitations in motion, and a recovery thereon was barred within three years after that time. The contention was not sustained, it being held that as the term of service of Maggie was to continue until the death of Devenney and wife, she was at liberty to ignore the breach and hold herself in readiness to perform the services contracted for until the specified time. She had the option of accepting the renunciation and suing him for the damages sustained, but she also had the right to treat the contract as a subsisting one and await the time for final performance specified in the contract. Until that time the statute of limitations did not begin to run.
That authority is not controlling here. In this case the plaintiff had long since executed his part of the contract, and, what is of greater consequence, his father absolutely disabled himself from performing his part of the contract in June, 1909, by the conveyance of the land to another. Thereafter it was beyond the power of the father to leave or will one-half of the land to the plaintiff. The contract being fully executed on the part of the plaintiff and performance on the part of his father being a legal imposáibility, the contract was at an end and the rights of the plaintiff then fully accrued. The action of the father was more than a renunciation which the plaintiff at his option might or might not elect to treat as a breach of the contract — it was a self-imposed disability which ended the life of the contract. There was no occasion or excuse to await the death of the plaintiff’s father and mother, as performance was beyond the power of the father, and nothing that the plaintiff could do thereafter would revitalize the contract or enable him to obtain a share of the land that had been conveyed to a stranger. Whether he sought damages in lieu of the land or the value of his services on the quantum meruit, his cause of action had accrued when the conveyance was made, and from that time the statute of limitations was running against him. It has been said that—
“If the vendor has broken his contract by conveying the property to a third person, the purchaser’s right of action for damages accrues at the time of the conveyance and the statutory bar is computed from that date.” (25 Cyc. 1090.)
In 6 Ruling Case Law, page 1028, reference is made to the voluntary disability of a party to a contract, and it is said:
“Under the view that such a renunciation may be treated as a breach, a party to a contract has an immediate right of action if the act of the other party in voluntarily disabling himself from performing can be treated as a repudiation of the contract. Illustrations that have been given of this rule are the case of a man who, having promised to marry a woman on a certain day, marries another woman before that day, or where one who has contracted to execute a lease on a future day for a certain term, executes before that day a lease to another for the same term,” etc.
In Union Insurance Co. v. Central Trust Co., 157 N. Y. 633, the rule was applied to an arbitration agreement, and it was said:
“The principle is not confined to agreements of submission, but is applied to contracts generally, and the rule is universally recognized that where a party, before the time of performance .arrives, puts it out of his power to keep his contract, there is an immediate right of action for a breach of that contract by anticipation.” (p. 643.)
Authorities tending to support the view taken are Wolf v. Marsh, 54 Cal. 228; Cochrane v. Oliver, 7 Ill. App. 176; Henry v. Rowell, 64 N. Y. Supp. 488; Harris v. Harris, 70 Pa. St. 170; Maitland v. Zanga, 14 Wash. 92; Crist v. Armour, 34 Barb. (N. Y.) 378; Burtis v. Thompson, 42 N. Y. 246; Stark et al. v. Duvall et al., 7 Okla. 213; Crabtree v. Messersmith, 19 Iowa, 179; Note, 8 Ann. Cas. 113.
Plaintiff’s pleading can only be construed as an action for the enforcement of a contract under which he was to have specific property; namely, one-half of a certain farm. .The statute of limitations began to run on the contract, either for specific performance or for damages in lieu of performance, as soon as the right of action thereon accrued. It accrued when the conveyance was made by plaintiff’s father, which was more than three years before his action was commenced. His action can hardly be regarded as one on the quantum meruit for the value of personal services rendered by him, and even if it were open to that interpretation the statute of limitations would probably have run upon that action within three years after the services had been performed.
In any view, it must be held that the cause of action was barred when the action was commenced, and hence the judgment of the district court is affirmed. 1 | [
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The opinion of the court was delivered by
Marshall, J.:
Robert Dunham and Ford F. Harvey, receivers of the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company, appeal from an order permitting R. L. Hinch, sheriff of Wyandotte county, to amend his return showing the service of a notice of attorney’s lien. The facts can best be stated by quoting from the brief of Robert J. Dunham and Ford F. Harvey, receivers, etc., as follows :
“Mary E. McPherson commenced an action for damages on account of personal injuries on July 7, 1914, against appellants as receivers of the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company by filing a petition in the district court of Wyandotte county, Kansas. Summons was issued by the clerk of the district court and by return of sheriff served upon' — not the appellants —but the companies of which appellants are receivers. An attorney’s lien was left with the sheriff. The lien was addressed to appellants but served upon the corporations of which appellants are receivers. Thereafter, and on January 7, 1915, this cause was by the plaintiffappellee dismissed. On September 9, 1914, plaintiff-appellee commenced an action against appellants in the circuit court of Jackson county, Missouri, for the same injuries complained of herein, which case was compromised on April 14, 1915, plaintiff-appellee herein recovering $1,475. Thereupon, said cause in Jackson county, Missouri, was dismissed. On February 15, 1916, all of the property operated by appellants was •transferred and sold to The Kansas City Railways Company. L. O. Carter, the possessor of said claimed lien, has an action pending against appellants to recover thereon, on account of the settlement of the action pending in Missouri. On March 30, 1916 (fourteen months after the dismissal of the case and eleven months after the settlement of the controversy and six weeks after, appellants had parted with the possession of the street railway property), the sheriff of Wyandotte county, Kansas, filed his motion herein, asking permission of court to correct and amend his return of summons’ and attorney’s lien by showing service upon appellants instead of on the corporations of which appellants are receivers. Appellants objected to the hearing of said motion and showed the facts as above outlined. Notwithstanding such objection and showing, the court permitted the amendment as prayed. From the order of the court permitting such amendment appellants appeal.”
It is contended that the court erred in sustaining the motion of the sheriff asking permission to amend his return of service on the notice of attorney’s lien. Smith v. Martin, 20 Kan. 572, is cited in support of this contention. There this court said:
“When an oifieer makes a return upon process, it is, to say the least, as against him prima facie correct, and he should not be permitted to amend it until he makes it clear that it was erroneous. This, true in all cases, is especially true when the effect of the return as first made is a liability upon him, and the amendment would operate to relieve him from liability. And still more true, when the party in whose favor the return was made, resting upon the faith of the return, would suffer loss by the amendment.” (p. 573.)
In the present action it was clear that the return was not correct. It did not fix any liability on the sheriff. The amendment did not relieve him from any liability, and the liability of the receivers was fixed by the service of the notice and not by the return. The notice of attorney’s lien was served on the agent of the receivers. The summons in the action was served in the same manner; and, in response to that summons, the receivers appeared and answered. They had notice of the action, and by the same kind of service they had notice of the attorney’s lien.
The rule is well established that where a process has been regularly served and there is a • defect in the return of the officer, that defect can be cured by amendment so as to make the return conform to the facts. (Foreman v. Carter, 9 Kan. 674; Kirkwood v. Reedy, 10 Kan. 453; Pierce v. Butters, 21 Kan. 124, 129; Rapp v. Kyle, 26 Kan. 89; Bank v. Sewing Society, 28 Kan. 423, 424.)
The judgment was specifically limited to permission to the sheriff to correct his return.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The subject presented by this appeal is the jurisdiction of the probate court to authorize a partition of real estate agreed upon by the guardian of an insane person and his ward’s cotenants.
A father deeded real estate to his three minor children. One of them became insane, and a guardian of her estate was duly appointed. The three children became of age, and partition being greatly desired, the agreement was made. The agreement was presented to the probate court, which found that the division was fair and just and equal, and if carried out would be to the benefit of the lunatic’s estate.- The probate court held, however, that it was without jurisdiction to authorise the partition. On appeal to the district court the judgment of the probate court was approved.
The article of the constitution relating to the judiciary contains the following provision:
“There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law.” (Art. 3, § 8.)
In the statute relating to lunatics, imbeciles, and drunkards, the legislature authorized the probate' court to appoint a guardian for the estate of a person incapable of managing his estate because of unsoundness of mind, and provided further as follows:
“Every probate court by whom any such person is committed to guardianship may make an order for the support, care and safe-keeping of such person, for the disposition or sale of his personal property as may be found necessary, for the management of his estate, for the support and maintenance of his family and education of his children, out of the proceeds of such estate; to set apart and reserve for the payment of debts; and to let, sell or mortgage any part of such estate, when necessary for the purposes above specified.” (Gen. Stat. 1915, § 6107.)
“The probate court shall have full power to control the guardian of any such person in the management of the person and estate and the settlement of his accounts, and may enforce and carry into execution its orders and judgments in the same manner as in cases of administration.” (Gen. Stat. 1915, § 6127.)
It is settled law in this state that the probate court is a court of general jurisdiction with respect to the subjects committed to it (In re Osborn’s Estate, 99 Kan. 227, 161 Pac. 601), and manifestly one of those subjects is management of the estate of a lunatic.
It has been said that cotenancy is an association compelled by interest, but reprobated by every other consideration. (Freeman on Cotenancy and Partition, p. 461, § 393.) A cotenant may compel partition, and because of this fact, voluntary' partition is permissible. Voluntary partition may be made even by parol, if subsequently acted on. (McCullough v. Finley, 69 Kan. 705, 77 Pac. 696.) The result accomplished by partition has been described as follows:
“Each of the allottees is deemed to hold the same title which he held before the partition, the undivided interest which he held in the whole tract being by the partition severed from the interests of his cotenants and concentrated in the parcel set apart to him.” ( 30 Cyc. 166.)
Consequently partition of land belonging to a person under guardianship is essentially management of his estate, within the meaning of the statute already quoted.
In the case of Hunt v. Rabitoay, 125 Mich. 137, partition of land made by the guardian of an incompetent was sustained. The syllabus reads:
“Partition of lands by guardians-of infants and incompetents will be sustained, where the partition is fair arid''equal.” (¶ 4.)
In the opinion it was said:
“We think partition of lands by the guardians of infants and incompetents is fully sustained by the authorities as well as by reason. Either cotenant could compel a partition. What may be compelled by the law parties should be allowed to accomplish amicably, so long as no advantage is taken and the partition is equal. Freem. Co-Ten. §§ 414, 415; 2 Co. Litt. §§ 243, 258; Williard v. Williard, 56 Pa. St. 119; Brooks v. Hubble, (Va.) 27 S. E. 585. The territorial law then in force authorized the guardian ‘to divide the real estate in as full and ample a manner as the idiot, lunatic, non compos or distracted person might or could were they restored to the full use of their rational faculties.’ 1 Terr. Laws, 377. Whatever may be the interpretation of this statute, it certainly evidences an intent to repose a broad power in the guardian.” (p. 143.)
It will be observed that the decision was based on reason and authority rather than on the territorial statute of doubtful meaning. The statute of this state evidences an intent to impose a broad power in the guardian, subject to supervision of the probate court. Should an adversary proceeding be required to effectuate partition, the action provided by the civil code is available. ■
The judgment of the district, court is reversed and the cause is remanded with direction to'proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued to recover damages for breach of a contract for the sale of fuel oil, and appeal from an order of the court refusing to make additional findings of facts and conclusions of law adding to the amount of recovery, and for refusal to strike out certain findings.
By the contract the defendants were to sell to the plaintiffs. 4,000 to 6,000 barrels of fuel oil a month for twenty-four months. After having complied with the agreement for some time they served on the plaintiffs a written notice of rescission, based on the failure of the plaintiffs to make a prompt payment. It appeared from the evidence that the plaintiffs resold all the oil to a cement and brick company, and that shortly after the attempted rescission on the part of the defendants this brick company went out of business. The trial court found that the plaintiffs made no other contract for the sale of the oil and allowed damages only up to the time of the failure of the brick company. The plaintiff moved for additional findings as to the price during the remainder of the contract period, and the damages for such period as measured by the difference between the contract price and the market price, and that the court allow such additional amount.
The effect of the findings and conclusions as made by the trial court is to absolve the defendants from any liability under the contract from the time of the failure of the cement and brick company, on the theory, evidently, that as the only profit made- by the plaintiffs arose from resales to this plant, and as no contract for resale was made with any other party, the plaintiffs failed to show any loss after the failure of that company. One of the plaintiffs testified that the only business they did was the contract with the defendants and the contract with the cement and brick company; that they never attempted to do any other business and had nothing to do with any other contract.
Counsel for the defendants say in their brief that when the one consumer went out of business the only market the plaintiffs had was gone, that there was no evidence, and the court could not speculate for them, as to what they might have done had they procured other customers. The plaintiffs, however, put on the stand a witness who testified that he was engaged in the oil refinery business in Chanute and was acquainted with all the published changes and the price of crude oil from the year 1910 up till October 1, 1914; that the market quotations published by the Prairie Oil and Gas Company govern in that field. The quotations were given, although he said that there was no general market price, and he could not -say there was a general, quoted price; there had never been an outside market price for fuel oil the same as crude oil, not a general market price — no posted price. One of the plaintiffs testified that he was familiar with the prices of oil during all the time covered by the contract, that they found a market for the oil in Chicago at a price that would have netted them $1.05 to $1.10 a barrel, which would have made the net price to plaintiffs at Moran 74 cents a barrel. That the plaintiffs were in correspondence with other cement companies and had frequent inquiries for fuel oil. That the demand for fuel oil was quite general and quite insistent; that on the breach of the contract by the defendants they sought all over the adjacent oil territory to buy fuel oil with which to fulfill their contract with the cement company and could not buy it at less than $1 a barrel f. o. b. producer’s plant.
“Q. Do you know what the market conditions for fuel oil were at the time this contract was rescinded by the company? A. There was an excellent market for the fuel oil at the time.
“Q. Could you have readily disposed of the oil had they continued to ship you, at places other than the Lumberman’s. Cement & Brick Company? A. We could.”
He further testified that he made a trip to Chicago in December, 1912, and located several large consumers there, and a trip .to Kansas City whose purchasing agent quoted him $1.05 a barrel for a year’s supply at that place. Another testified that from February, 1913, to and including March, 1914, there was an insistent demand for fuel oil, the demand as great as the supply and “the best market we ever had.”
It appears that upon rescission of the contract the defendants began shipping to the plaintiffs’ former customer and so continued until the latter failed.
From the foregoing it is clear that the court might have found the value to the plaintiffs of the oil, had its shipment been continued up to the end of the contract period. Does the fact that they did. not actually make a contract when they knew that the plaintiffs had refused to furnish oil any longer preclude them from recovery? The only apparent justification the court found for the cessation of the shipments was that the plaintiffs’ one customer had failed in business. After the attempted rescission the plaintiffs demanded a compliance with the contract, but without avail. They were entitled to a finding as to' the market price of the oil f. o. b. defendants’' works, and also to a finding as to the damages sustained, if any, by the plaintiffs for failure to continue the shipments during the remainder of the contract period.
If, as a matter of fact, the plaintiffs could upon the continued receipt of the oil after the failure of their former customer have readily disposed of it at a profit, and if, as testified to by one of them, they could have contracted for a year at a fixed price elsewhere, it is ascertainable from the evidence what profit they might have received. While there may not have been in the ordinary acceptation of the term a market price of the oil at the defendants’ works, it can b,e found from the evidence what it would have been fairly worth there, and how much it would have cost to transport it to the places where it could have been sold.
Certain other matters are presented for consideration and discussed in the briefs, but the only material error found is the refusal to make the requested additional findings of fact and conclusion of law.
The judgment is reversed for the purpose only of making such findings and conclusions from the evidence already adduced, and for such further proceedings in accordance herewith as may be proper. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for damages for cutting off telephone service to his stores. The company required payment by the 15th of the month, and subscribers failing to pay by that time were notified that service would be discontinued for nonpayment. On the 19th of August, 1915, the plaintiff received word that his service would be discontinued, and on calling up the office was informed he had not paid his bill. Upon finding that the check had been made out but not transmitted he advised the office that he would mail the check at once, to which the reply was “all right.” A few minutes later the service was cut off. The check was mailed and received by the company the next morning, and thereupon the service was restored. The plaintiff recovered a judgment for $11.25 actual damages and appeals because the trial court instructed the jury that under the evidence he was not entitled to recover any sum as exemplary damages.
There was testimony to the effect that the agent at the office was irritated because the plaintiff “hung up in his ear” and that he promptly ordered the wire man to discontinue the service, and when asked why he did so the answer was: “Well, because he had hung up in my ear; I wanted to be sure he was cut off.”
As the court must instruct the jury upon the issues involved, it must first determine' whether there is evidence to support the claim for punitive damages; so the only question is whether or not the court reached the right conclusion in the instruction he gave on this subject.
Whether the expression “all right” should be construed as a waiver of the right to disconnect or as an agreement not to do so until the check could be forwarded, the majority of the court are of the opinion that there was not sufficient evidence ,of malice or wantonness to take the case to the jury on the ^question of punitive damages. (Cady v. Case, 45 Kan. 733, 26 Pac. 448; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; C. K. & W. Rld. Co. v. O’Connell, 46 Kan. 581, 26 Pac. 947; Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; Cheesman v. Felt, 92 Kan. 688, 142 Pac. 285.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by an attorney for compensation ior his services. The defense was that he had not been employed. The plaintiff recovered and the defendant appeals.
The plaintiff was a director of and attorney for the Stock Yards State Bank of Wichita. The cashier of the bank defaulted. The defendant was surety on the cashier’s fidelity bond to the bank. The defendant sent agents to Wichita to negotiate with the plaintiff respecting the defendant’s liability on its bond. The defendant finally denied liability with respect to all items except one of $3500, for which it was conceived the Merchants State Bank of Wichita was liable to the Stock Yards State Bank. If the Merchants State Bank could be made to pay, the defendant would not need to do so. The- Stock Yards State Bank did not care to incur the trouble and expense of a suit against the Merchants State Bank because it held the defendant’s bond. Consequently the defendant’s agent authorized the plaintiff to bring suit against the Merchants State Bank for the defendant’s benefit, but in the name of the Stock Yards State Bank. On the strength of this authorization the plaintiff instituted the suit and conducted it to final judgment. At the trial of the present action the defendant denied authority of its agent to employ the plaintiff to bring suit against the Merchants State Bank for the defendant’s benefit, but it so happened that shortly after the suit was commenced an agent, whose authority could not be denied, requested the plaintiff in writing to institute the suit at once. The jury found specially that the suit was brought at the request of and in the interest of the defendant, but in the name of the Stock Yards State Bank, and that the plaintiff represented the defendant as its attorney in that suit.
The controversy is closed by the special findings of the jury, which were sustained by ample evidence.
The ghost of variance between pleading and proof rises from the tomb to which variance was consigned by sections 134 and 135 of the civil code, and points its spectral finger at the unbridgeable chasm lying between compensation dependent on contract express and compensation’dependent on contract implied. The plaintiff pleaded that he was employed, and that it was understood he was to be paid — enough to advise the defendant what the suit was about. Under this pleading he was át liberty to prove any kind of contract. If, however, an express contract had been specifically pleaded, and an implied contract had been proved, he could still recover. After judgment following a trial at which the variant issue has been fairly determined, this court authorizes or treats as made whatever amendments are necessary to make pleading and proof conform.
The instructions relating to recovery when there has been no express contract are criticized, the rule stated in 2 Mechem on Agency, second edition, section 2230, being taken as a guide :
“Thé mere fact that the alleged client received the benefit of the service is not enough to make him liable, but the service must have been rendered on his account and at his express or implied request.” (p. 1807.)
The special findings bring the case within this statement of the rule. As a matter of fact, the instructions fairly presented the law governing the subj ect, but if they were erroneous this court could apply the correct doctrine to the facts found.
. Other assignments of error are without substantial merit, and the. judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This is a second appeal. The facts are sufficiently stated in the former opinion (Stout v. Bolin, 93 Kan. 185, 144 Pac. 204). At the second trial the court sustained a demurrer to the plaintiff’s evidence, and he appeals.
The district court evidently misinterpreted the following statement contained in the former opinion:
“Aside from whatever inferences are to be drawn from the facts and circumstances appearing from the evidence there is no testimony tending to show an agency, and certainly none indicating an agency to purchase the cattle on account of the defendants by the head and not by the pound.” (p. 188.)
The statement is still true. There was no testimony tending to show agency on the part of Brown, in the sense of conversations conferring authority. There were facts and circumstances, however, from which Brown’s agency might be inferred. Among them were statements made by the defendants to third persons. Hopkins said they (the defendants) had a man who sold the cattle for' them, and that they came out all right, had done well on the cattle, but that they had a little trouble about a check. This statement was made in response to an inquiry as to how the defendants came out on the sale of the Stout cattle, and the reference to trouble about a check identified the sale as the sale made to Griffith. The defendants could not have sold the cattle to Griffith unless they owned the cattle, so the plaintiff’s sale .to the defendants stood, and the plaintiff made no sale to Griffith. The man referred to was Brown. In order to complete the sale to Griffith by delivery, Brown obtained possession of the cattle from the plaintiff. The price to the defendants was 4% cents per pound. To avoid the necessity of weighing the cattle, they were guessed off at $40 per head. Having obtained the cattle from the plaintiff, having sold and delivered them to Griffith, and having come out all right on the sale (retained the fruits of the transaction), all by means of Brown’s agency, the defendants are not in a position to repudiate either his agency- or his conduct in adjusting the price. The fact that Brown was the agent of the defendants, and that his adjustment of the price was actually ratified, was further indicated by another statement-attributed to Hopkins. He said they bought the cattle for $40 per head — they cost 4% cents, but were lumped off at $40. Bolin’s conduct and statements concerning the protested check were corroborative of Hopkins’ statements and of the plaintiff’s theory of the case. Other grounds for the inference of agency appeared in the evidence.
It is elementary that agency may be proved by facts, circumstances, admissions, and other indirect evidence, and that ratification is equivalent to an original grant of authority.
The judgment of the district court is reversed, and the cause is remanded for trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment against it for costs in an action brought by it to recover money paid on its order.-
The plaintiff was a fraternal beneficiary organization and had a local lodge in Atchison, Kan., known as Mulford Lodge, Number 137, of which M. M. Mishler was an officer. He did practically all of the correspondence and most of the business for the lodge. Through an application and other papers forged by Mishler, the name “Edward B. Evans” was placed on the records of the plaintiff grand lodge as a member of Mulford Lodge, Number 137, and a beneficiary certificate for $2000 was issued to him, payable, in case of his death, to “Alice Evans; his wife.-” No such persons were known to exist. A few months afterward Mishler forged and sent to the grand lodge proofs of death of Edward B. Evans. The grand lodge approved the proofs and issued an order on its depository, defendant The Emporia National Bank, payable “to the order of Alice Evans, (wife) of Brother Edward B. Evans, deceased, late a member of Mulford Lodge Number 137, located at Atchison, Kansas.” The indorsement of the name “Alice Evans” was as follows: “Alice Evans, wife of Brother Edward B. Evans, late member of M. Lodge Number 137, Atchison, Kansas.” Mishler presented the order to a bank in Excelsior Springs, Mo., indorsed his name thereon, and afterward received the $2000 from the Missouri bank. In regular course of business, the order reached The Emporia National Bank and was paid by it. All signatures to every document necessary to get the name “Edward B. Evans” on the books of the grand lodge as a beneficiary- member, and necessary to procure the order for the payment of the money to “Alice Evans,” were forged by Mishler. This was one of a series of forgeries committed by him, An opinion in another action growing out of these forgeries is reported in United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974; id., 93 Kan. 310, 144 Pac. 257.
1. The defendant contends that there was no evidence to show that the indorsement of the name “Alice Evans” on the order was forged. All signatures on all other documents connected with the purported membership of Edward B. Evans in the lodge, and with the proof of his death, were forged by Mishler. From the evidence it must be concluded that there was no living person known to the lodge by the name either of Edward B. Evans or of Alice Evans. If Mishler did not sign the name “Alice Evans” on the order delivered to him, he procured some unknown person to do so. That person was not known to the lodge as Alice Evans. If the, name of that person was Alice Evans, she was not the person to whom the order-was intended to be delivered. Viewed from every possible angle, the evidence conclusively showed that the order was not indorsed by the person to whom it was intended to be delivered, and that the name “Alice Evans” was forged on the back of the order either by Mishler of by some one at his request.
This case is therefore governed by United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974; id., 93 Kan. 310, 144, Pac. 257. (See also, First Nat. Bank of Hastings v. Farmers & Merchants Bank, 56 Neb. 149; Tolman v. American National Bank, 22 R. I. 462; Murphy v. Metropolitan National Bank, 191 Mass. 159; Western U. Tel. Co. v. Bank, 17 Colo. App. 229; Armstrong v. National Bank, 46 Ohio St. 512; Harmon v. Old Detroit Nat. Bank, 153 Mich. 73.)
'2. The defendant argues that the order was payable to a fictitious person, and was for that reason payable to bearer. That part of the negotiable-instruments act applicable -to the circumstances disclosed, in part, reads:
“The instrument is payable to bearer . . . when it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable.” (Gen. Stat. 1915, § 6536.)
The grand lodge did not know that Alice Evans was a fictitious person. It supposed that she was an existing person, and issued the order to that person. When a negotiable instrument is knowingly issued to a fictitious person ■ it is payable to bearer, because there is no one to indorse it; but when such an instrument is issued to a person supposed to be in existence, it is not knowingly issued to a fictitious person. When the instrument is not knowingly issued to a fictitious person it must be indorsed by the person to whom it is issued. The order issued to “Alice Evans” was not payable to bearer. This conclusion is supported by Armstrong v. National Bank, 46 Ohio St. 512, and by Harmon v. Old Detroit Nat. Bank, 153 Mich. 73.
The judgment is reversed and the trial court is directed to render judgment for the plaintiff for the amount of the order, with interest thereon. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff recovered a judgment for damages against the defendant for an error in the transmission of a telegram delivered orally by telephone for forwarding to a firm of grain dealers in Wichita. The telegram was partly in code. It reads:
“Topeka, Kansas, August 7th, 1914.
“Wagner Grain Co., Wichita, Kansas.
“Perfume have booked fluting accursed debating Kansas City basis boundary.
“Shawnee Mlg. Co.”
The telegram was an acceptance of an offer of ten thousand bushels of wheat. The code word for such a purchase was “fluting.” It was erroneously transmitted to read “flirting,” which meant six thousand bushels. The more or less proximate consequences of this error occasioned this lawsuit.
One of the defenses of the telegraph company was that the telegraphic message was received for transmission as an unrepeated telegram, and that the terms and conditions for the receipt and transmission of such messages were those set forth on its regular blank forms for telegrams, parts of which read:
THE POSTAL TELEGRAPH-CABLE COMPANY.
“(Incorporated)
“Transmits and delivers the within telegram subject to the following terms and conditions:
“To guard against mistakes or delays, the sender of a telegram should order it repeated; that is telegraphed back to the originating office for comparison. For this, one-half the unrepeated telegram rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated telegram and paid for AS such, in consideration whereof it is agreed between the sender of the telegram and this Company as follows:
“1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated telegram, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated telegram, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines; nor FOR ERRORS IN CIPHER OR OBSCURE TELEGRAMS.”
It will thus be seen that the telegraph company has two principal schedules of rates — one for unrepeated messages in which its liability for errors in transmission was limited to the amount received by it for sending the message, and a rate fifty per cent higher for repeated messages in which its liability for erroneous transmission was stipulated in advance to be fifty times the sum paid for the service. These rates must be filed with the public utilities commission and may not be departed .from by the telegraph company without the assent of that tribunal; and all discrimination and preferences in rates or service is forbidden by the public utilities act. (Laws 1911, ch. 238, §§ 3,10-12, 20, 30, Gen. Stat. 1915, §§ 8329, 8337-8339, 8347, 8358.) The service performed by the defendant must be held to have been in pursuance of its regular corporate business, and it should be assumed that no discriminatory or preferential service was being extended to plaintiff when the defendant received plaintiff’s message by telephone for transmission to Wichita. It must be considered as if the plaintiff had formally written the message in the usual way-on regular blanks furnished by the company. That telegraph companies frequently accept messages by dictation over a telephone is well known. It would be harsh to say that any illegal preference forbidden by section 8401 of the General Statutes of 1915 is intended in so doing. Nor would it be just to hold that in extending this apparently harmless courtesy the telegraph company thereby places itself in a less favorable position or assumes a greater responsibility than it does when it receives for transmission telegrams written in the usual way with the usual conditions attached. Nevertheless, if this practice is to be regarded as a general one, carrying a different rate or subjecting the telegraph company to a different degree .of responsibility, a uniform schedule of rates and charges for such service and the regulations pertinent thereto should be filed with the public utilities commission and subject to its approval; and such rates and service are invalid until they are so filed; and when formally promulgated they may not be departed from with impunity. (Gen. Stat. 1915, §§ 8398, 8400, 8416; The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544; Mollohan v. Raihuay Co., 97 Kan. 51, 154 Pac. 248.)
The court is of opinion that in the absence of a distinct schedule of rates applying to telegrams delivered for transmission by telephone, the case is governed by the conditions attaching to the usual and more formal mode of transacting its corporate business.
The telegraph company is liable, if at all,' according to the terms of its contract of service, unless that contract is an unreasonable limitation of its liability for negligence. It was pleaded that the message was received for transmission as an unrepeated message. The plaintiff’s general denial traversed this as well as the other allegations of the answer, but there' is seemingly no contention that the case should turn upon whether the telegram was to be transmitted as a repeated oían unrepeated message, nor is it intimated that it was transmitted as a repeated message “specially valued” according to the rates and terms for transmission of such messages.
Is this particular limitation of liability a reasonable one? This question is settled as to interstate messages. (Bailey v. Telegraph Co., 97 Kan. 619, 623, 156 Pac. 716; Id., 99 Kan. 7, 160 Pac. 985; Kirsch v. Telegraph Co., 100 Kan. 250, 164 Pac. 267.) The case at bar involves only an intrastate telegraph message, and we have no state statute specifically authorizing common carriers to limit their common law liability as does the Carmack amendment (Part 1, 36 U. S. Stat. at Large, ch. 309, pp. 539, 544) ; and telegraph companies are somewhat analogous to carriers; but we do have a statute giving countenance to such limitation by railroad carriers upon the order or approval of the public utilities commission. (Gen. Stat. 1915, § 8435.) There is certain language in the public utilities act which seems to recognize the telegraph company’s right to limit its liability. The schedules, classifications, rates, rules and regulations for telegraph service must be reasonable and just, and the commission may amend or alter them. (Gen. Stat. 1915, §§ 8390, 8408) ; any matter concerning such public-service business which is unreasonable, unjust, or discriminative must be investigated and corrected. (§ 8416.) The requirement that telegraph companies file their rates with the commission, and the section which fixes as legal maxima the rates in vogue on January 1, 1911 (§ 8358), and the unchallenged exaction and maintenance of those rates, and upon the conditions attaching thereto in the telegraph company’s contracts of service are potent reasons for recognizing reasonable limitations of liability of the telegraph company as valid and binding. Of course, the public utilities commission has nothing directly to do with the legal liabilities of telegraph corporations on questions of damages, but so far as their liabilities enter into the cost of conducting their business, those liabilities are a proper element of consideration in rate making. The telegraph rates are based, in part, upon the legal consequences which attach to the service. If a higher degree of responsibility attaches to the service, a greater rate must be exacted. It has been held in this state that a common carrier (without a permissive statute) can not impose a condition exempting him from liability for his' own negligence, and a telegraph company is so much like a carrier that its liability for negligence should be governed by similar principles, yet reasonable limitations ’of liability other than those which do not seek to excuse its gross negligence have been upheld (Russell v. Telegraph Co., 57 Kan. 230, 233, 45 Pac. 598) ; while stipulations restricting liability to an insignificant sum where the negligence was gross have been disregarded. (Telegraph Co. v. Crall, 38 Kan. 679, 17 Pac. 309.)
Here the stipulated limitation is for a return of the cost of the message, probably twenty-five or forty cents. All the annoyance, delay, business inconvenience and financial damage so commonly attendant on a telegraph company’s failure to perform its self-assumed public service are limited to an insignificant trifle. Here the actual damage was $265. The stipulated reparation is a few dimes. With all due deference to the great judicial tribunals which have countenanced and enforced this stipulation, and which we have, been likewise constrained to enforce in interstate matters, we can not give our independent assent that such a limitation is reasonable. It is unreasonable, and it will not be applied in intrastate business where this court would have to assume the responsibility of giving countenance to it.
In Jones’ Telegraph and Telephone Companies, 2d ed., § 377, where most of the pertinent decisions are included in a footnote, it is said:
“The validity of the stipulations in the blank form by which these companies have attempted to'exonerate themselves for all losses caused by errors made in the transmission or delays in delivering messages, except the amount received for sending, unless the message is ordered to be repeated, has been variously viewed by the courts, some of which hold them to be valid; yet the weight of authority is that they are void and unenforceable. The latter courts considered these stipulations as a mere device for avoiding liabilities for acts of their own negligence; or willful wrongs. As has been seen, they can not enforce any regulation or contract, by means of which they may relieve themselves for any losses caused by their own negligence or that of their servants. Any rule which seeks to relieve them from exercising their employment with diligence, skill and integrity contravenes public policy as well as the law; an'd whenever they attempt to avoid these duties, they do so at the expense of and injury to their patrons.”
Turning to other phases of this case, it is urged that the plaintiff’s damage was of such a remote and speculative character that the telegraph company should not be held liable therefor. It was shown to be a custom of the grain and milling trade that where no reply to an acceptance of an offer to sell is received, a confirmation of the bargain is understood. The addressee had offered to sell 10,000 bushels. The plaintiff’s telegram was an acceptance. The telegram as transmitted was an acceptance for 6000 bushels, an amount the addressee could fill. If the telegram had been correctly transmitted it would have been an acceptance of the offer of 10,000 bushels, an amount the addressee could not supply; but by another custom of the trade the addressee would have immediately notified the sender of the telegram so that he could have protected himself by buying elsewhere. Since no notification was received from the addressee of his inability to fill the order for 10,000 bushels and that he could only fill it to the extent of 6000 bushels, the plaintiff’s" loss is the difference in the market price of the 4000 bushels which he had to procure elsewhere to supply his trade. This matter seems intricate and involved, no doubt, but its intricacy lies in the highly complex maneuvers of the grain and milling trade, not in the legal principles which govern liability for default. The law is simple enough, and once the weird necromancy and cabalistic symbols of the milling markets are understood the damages are seen to be certain, proximate, and a recovery seems proper. We see no analogy between this case and King v. Telegraph Co., 81 Kan. 223, 105 Pac. 449, where the plaintiff could only show that if his telegram had been delivered he might have bought some wild horses and might later have sold them at a profit. There was never even the shadow of a legal claim for damages in that case. Here there was an offer to sell, an acceptance, an erroneous transmission of the acceptance, a consequent failure of customary -modification of the offer when it could not be completely filled, and a resultant loss which the injured party would not have suffered if the telegram had been correctly transmitted, since on notification of inability to fill the order it could have readily been filled by purchase on the open market elsewhere.
Defendant cites many other decisions in telegraph cases, the gist of them being that damages can not be recovered for failure to properly transmit telegrams which merely deprive the sender or addressee of an opportunity to make a contract or to close a bargain and with the consequent prevention of possible profits which would have been realized if the telegram had been properly transmitted and if pursuant thereto the bargain had been closed and if it had turned out profitably according to the aggrieved party’s expectations. But none of these bear any close analogy to the present case.
It is urged that the message, being in code and unexplained, a recovery can not be had, following Hadley v. Baxendale, 9 Exch. 341, and the American authorities which follow the doctrine announced in that case. But code messages in the milling and grain business are common and are known by the telegraph companies to be important. In this case, the message was only partly in code and the manager of the telegraph company admitted that he knew it was a business message; and even to one unfamiliar with the grain dealer’s code the message disclosed that something or other involved in the grain and milling business was booked on Kansas City basis. That was all the defendant needed to know about it, to .charge it with notice that a failure to transmit the message correctly would probably lead to serious consequences. (Telegraph Co. v. Collins, 45 Kan. 88, 25 Pac. 187; Cain v. Telegraph Co., 89 Kan. 797, 804, and citations, 133 Pac. 974; American Union-Telegraph Co. v. Daugherty, 89 Ala. 191; W. U. Tel. Co. v. Harris & Comstock, 19 Ill. App. 347; W. U. Tel. Co. v. Nagle & Winn, 11 Tex. Civ. App. 539, 542; see, also, Western Union Tel. Co. v. Tyler et al., 74 Ill. 168; 37 Cyc. 1753.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
S. T. Arndt died intestate in Wilson county in April, 1915, the owner of a quarter section of land in that county. He left surviving him three brothers and a number of nephews and nieces, all nonresidents. This action in partition was brought for the purpose of dividing the land between the heirs. While it was pending the appellant, Estella Emma Arndt-Griffith, filed her intervening petition, alleging that she is a married woman living in Colorado, and that before her marriage her name was Estella Emma Arndt; that she is a child and daughter of S. T. Arndt, the deceased, and was born near Cisco, 111., in 1880, and that the deceased recogmized her as his child; that the recognition was general and •notorious and made to persons then living in Wilson county, '.Kansas, and to various persons living in and near Cisco, 111.; that his acknowledgment that she was his child was so notorious that it became a matter of common knowledge in the community where he resided; and that it was generally understood by people living there that she was his daughter. Issues were joined and the cause was submitted to the court. Upon the issues raised by the intervening petition the court found in favor of the defendants on the express ground that the deceased, S. T. Arndt, did not in his lifetime recognize the appellant as his child either in writing or by general notorious recognition as provided by section 3845 of the General Statutes of 1915.
This is purely a fact case. There was overwhelming testimony produced by the plaintiff to show that she was the daughter Of Lyda Runkle, then unmarried, and S. T. A'mdt, the deceased. At the time she was born her mother was twenty-five years of age and Arndt was thirty years of age. They lived near Cisco, 111., and were both employed by and lived in the family of a farmer. They were frequently seen together in company, and the evidence of witnesses who lived in that vicinity at the time, together with the testimony of appellant’s mother and all the circumstances, established beyond any question the fact as to the parentage of the appellant. The evidence also showed beyond any question of doubt that •in the neighborhood where the deceased resided from 1880 un til the time of his death there was a general rumor and understanding that he was the father of the appellant; also that there was a general understanding to the same effect in the community in Illinois where the deceased formerly lived. But the testimony was very meager as to his recognition of the appellant as his child, and the finding of the trial court that there was no general or notorious recognition by him can not be said to be in conflict with the evidence. The parentage alone is not sufficient to entitle an illegitimate child to share in the father’s estate. Under our statute illegitimates are entitled to inherit from the father “whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.” (Gen. Stat. 1915, § 3845.) (Record v. Ellis, 97 Kan. 754, 156 Pac. 712.) The appellant had the burden of proof on this issue. “Whether an illegitimate son has been so recognized as such by his father as to constitute a general and notorious recognition of that relation is a question of fact.” (McLean v. McLean, 92 Kan. 326, syl. ¶ 2, 140 Pac. 847.)
No good purpose would be served by attempting to recite the testimony. The court was not obliged to believe all that every witness said and, as already observed, the testimony produced by appellant upon this issue was far from satisfactory.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action for injuries sustained on the defendant’s railway platform by being hit by a trunk which fell from the top of a baggage transfer wagon. The plaintiff had come to defendant’s depot at Fort Scott about midday and had purchased a ticket for Chetopa, and he was waiting on the platform for his train, which was due in about half an hour. A public street skirted the railway platform on the east, and south of the platform was a private driveway belonging to the railway company, which was used by persons delivering baggage at defendant’s depot. By the side of the street and at the entrance to the driveway was a drain or depression. It was this depression which caused the trunk to fall off the baggage wagon. The wagon belonged to the owner of an independent baggage transfer business, who was accustomed to deliver trunks thereabout. It was alleged that theretofore trunks had been jostled off baggage wagons in the same manner while crossing this depression—
“Plaintiff further alleges that he received said injuries above described by reason of and on account of the negligence of said defendant and his servants and employees who were looking after and taking care of said station and said station platform, in carelessly and negligently failing to put proper protection at said place, as theretofore trunks had fallen from the wagons belonging to said baggage line, and other baggage lines, at the same place, and said defendant and his' employees knew of this fact, or should have known of said fact, and by the exercise of ordinary care and prudence should, have known of the danger said plaintiff was in by standing at said place on said platform; that said plaintiff was not aware of and did not know of the danger he was in at said time. Defendant knew that the platform at said place was used by passengers and should have kept it safe for their use. That the private roadway belonging to said defendant at said place was only about ten feet wide, and that persons driving a baggage wagon, as was being driven at that time, would have to make a short turn in order to- drive in and upon said private roadway, and that wagons so turning loaded as aforesaid, on account of the narrowness of said road, and on account of the water drain which was there, would cause trunks to be thrown from said wagon. That said defendant negligently failed in any way to warn or notify said plaintiff of the danger surrounding said place upon said platform and failed to put any warning signs in or upon said platform to' warn said plaintiff of danger at said place. Plaintiff further alleges that there was no negligence on his part.”
A demurrer to this petition was sustained. Hence this appeal.
The high degree of responsibility imposed on railroads for the safety of their passengers and patrons has often been expounded by this and other courts. Plaintiff’s counsel cite some extreme cases extending that responsibility nearly as far as the present case, but not quite so extreme. The proximate cause of this accident was the careless loading of the baggage wagon and the careless driving of the baggageman. The condition which gave effect to this negligence was the drain or depression at the edge of the street at the entrance to the driveway alongside the platform. It is not alleged that the railway company was responsible for that depression. Presumably that drain or depression was made, properly or improperly, by the public authorities in charge of the street. The railway company had no control over the loading or driving of the baggage wagon. It had no control' over the. drain or depression at the side of the street. It was not at fault because it had á railway platform thereat, nor did reasonable prudence require it to construct some sort of barricade to prevent trunks carelessly loaded from falling on its platform from the top of baggage wagons driven by careless drivers across the drain or depression negligently placed at the street side in front of the entrance to its driveway. At the very most, the railway only furnished one of the conditions — a receptive one,, upon which the negligence of others might operate. It furnished the platform. It is urged that the railway company should have placed some warning sign thereabout. To be of any practical value such warning would need to read something like this:
“Warning. — Patrons of this railway company are warned that trunks are sometimes jostled on to this platform from the top of carelessly loaded and < carelessly driven baggage wagons while crossing the street drain to enter our private driveway. Look out!”
A majority of the court are of opinion that it could not be declared as a matter of law that the railway company had any such duty; that to countenance this cause of action would carry the railway company’s responsibility altogether too far; that the railway company was not the wrongdoer whose negligence caused plaintiff’s injuries, and that the railway company’s relation to the accident was so extremely remote and attenuated that it can not be subjected to damages therefor.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The defendant was charged with manslaughter in the third degree for killing her husband. The verdict was guilty of manslaughter in the fourth degree. Judgment was rendered on the verdict, and the defendant appeals.
The defendant’s husband was a joint keeper, and she complained of his failure to support her properly. On the night of the killing the defendant locked up his joint and he and his wife went to the home oí an acquaintance, where with others they spent the time until far into the night drinking beer. Several times the defendant and her husband quarreled. At some time between 1:30 o’clock and 2 o’clock^ in the morning they started home. When out on the sidewalk the defendant’s husband struck her, took her by the throat, pushed her backward, and struggled with her. She carried a pistol in her apron pocket, and while thus assailed fired a shot. Her husband did not desist, and she fired again. The bullet penetrated his heart.
The defendant signed a written statement purporting to give the events of the night, before and at the time of the killing. The statement was quite at variance in many important particulars with the facts developed at the trial. In the statement the defendant admitted she had been drinking intoxicating liquor, and said:
“When we got outside the gate, Pete struck me behind the ear. It did not hurt me but made me mad. I turned around and shot twice to scare him. I did not shoot to kill him, and did not know I had hit him until he fell.”
At the trial the defendant testified as follows:
“Q. At that time after he hit you this blow and turned you around, what did he do? A. He grabbed me and tried to choke me, strangled me. I tried to get off of him. I was afraid of him in his condition.
“Q. What did you do about this pistol? A. And when we were fighting there, I was trying to protect myself, trying to get off of him. I thought he was going to kill me, choking me. I fired a shot in the air to frighten him off of me.
“Q. Did he .stop when that shot was fired in the air? A. He did n’t. It only angered him the worse and in our scuffle, that gun was discharged. I do not know whether I shot him, or whether he shot himself.
“Q. Was his hand on your neck? A. It was choking me.
“Q. At the time of that last shot being fired? A. It was.
“Q. What did you think as the last shot was fired? A. I thought he was trying to kill roe, because I knew his temper when he was drinking that way, and with his choking me and all I did n’t know but what he might choke me to death. And there was nobody around to help and I thought if I would shoot it would attract the attention of somebody who would come to me. I wanted to get him off of me.
“Q. Were you struggling at the time? A. We were.
“Q. Were you trying to defend yourself at the time? A. I was.
“Q. It looked to you at that time as if he was going to kill you, or hurt you very much. A. That is what I thought — I surely did — it looked that way.”
It would unduly extend this opinion to discuss at length the great number of subjects covered by the defendant’s brief; consequently the court will do little more than announce its conclusions respecting those which are of most importance.
■ The admission in evidence of the defendant’s written statement is assigned as error. It is said there was testimony that she was in a hysterical condition when the statement was signed, that she was not cautioned or warned, and had no advice, that the statement contained only a part of what she told the officers, and that she did not remember making the statement, or the contents of the writing. There was evidence, however, that the statement was freely and voluntarily made, when the defendant was calm and rational, that it contained the substance of what she said, and that when it was prepared and read to her she required it to be changed before she signed it. Consequently the statement was admissible, the weight to be given to it being a matter for the jury.
The clothes which the 'deceased wore when he was shot were produced in evidence, and failed to show powder mark or burn, such as would have followed shooting at close range. The coroner who took the clothes from the body of the deceased produced them, identified them, pointed out the bullet hole, and was not cross-examined. It is said no sufficient account of the clothes between the time they were taken from the body of the deceased and the time of the trial was given. It was not necessary for the state to negative change of condition and appearance before offering the clothes in evidence. It is said the clothes were offered to rebut matter brought out by the state. The assertion is not supported by the record. It is said that the use of clothes as evidence under like circumstances was disapproved in the case of The State v. McAnarney, 70 Kan. 679, 79 Pac. 137. In the McAnarney case no complaint was made because the garment worn by the deceased was introduced in evidence. The error committed was in receiving testimony respecting another garment which, so far as the evidence disclosed, had no connection with the deceased or with the homicide. It is said that use of the clothes as evidence was prejudicially harmful to the.defendant. The court has no reason to doubt the truth of the statement. Evidence tending to establish guilt or to break down a defense is likely to be of that character.
Error is assigned on the refusal of the court to permit a witness to testify that he had informed the defendant of the quarrelsome and brutal disposition of her husband when he was drinking. If the defendant had been content to prove in formation of the character indicated, it would have been admitted. The deceased had formerly been married to the witness’ sister. What the defendant’s attorney did was to ask a series of questions about the brutality of the deceased toward the witness’ sister, concluding with asking if the witness had informed the defendant of “that treatment.” The court advised the attorney that his method was improper, but he persisted, and the witness was not asked if previous to the killing he had a conversation with the defendant relating to the subject of her husband’s disposition when under the influence of liquor, and if so, what the witness told her. The pertinent matter was not occurrences within the knowledge of the witness which informed the witness of the deceased’s character for violence and brutality, but what information he had conveyed to the defendant on the subject. The law is fully discussed in the case of The State v. Burton, 63 Kan. 602, 66 Pac. 633, which the defendant cites and relies on. What the defendant fails to note is that in the Burton case the defendant himself was the.witness undergoing examination. The defendant’s testimony quoted above shows that she knew her husband’s temper when he was drinking. If her attorney had deemed the subject to be of importance she could have been further interrogated along the lines indicated in the Burton case.
Various instructions to the jury are criticised, and it is said the court erred in submitting to the jury the inferior degree of manslaughter of which the defendant was convicted. The charge of manslaughter in the third degree contained in the information was based on the defendant’s written statement— killing her husband in the heat of passion, without design to effect death, with a deadly weapon. Manslaughter in the fourth degree includes involuntary killing in the heat of passion, with a dangerous weapon, and killing by act, procurement, or culpable negligence, which would be manslaughter at common law. The testimony of the defendant quoted above plainly required the court to instruct the jury on both branches of the inferior degree.
The instructions relating to the justification of self-defense are criticised. An assault may be made under such circumstances that there would be reasonable cause to apprehend a design to inflict great personal injury and would be immediate danger of the design being accomplished, but the taking of life would be wholly unnecessary' to frustrate the design. In making this subject plain to the jury the court used expressions which the defendant says trenched upon her right to stand her ground when assailed. The right of the defendant to repel force without retreating was covered by a very full and clear instruction devoted to that single subject. The law relating to self-defense could not be embraced in a single instruction. All the instructions devoted to that subject must be read together, and when this is done the defendant’s rights appear to have been fully conserved.
The jury were instructed that in order to justify the defendant in killing her husband, there must have been reasonable ground to believe she was in imminent danger of death or great bodily harm, and that the jury were to judge whether or not the circumstances were such as to induce such a belief. The defendant says the instructions to this effect trenched upon her right to act upon the circumstances as they appeared to her. This subject has been treated at length in so many decisions of this court that it is not necessary to do so again. It is perfectly true that a person assaulted is justified in acting on facts as they appear to him, and is not to be judged by the facts as they actually existed according to subsequent proof. If an assailant appear to be in the act of shooting, he may be killed in self-defense, although the gun was not loaded. But the statute requires reasonable cause to apprehend a design to commit a felony or to do some great personal injury (Gen. Stat. 1915, § 3370), and that reasonable cause must appear to the jury.
Complaint is made of three instructions covering the .subjects of intoxication as a defense, the unlawful character of the deceased man’s business, and the jury’s unconcern with the matter of punishment. The instructions correctly stated the law. Whether requested by the defendant or not, and whether necessary or important or not, they did the defendant no harm.
. It is said the court ought to have instructed the jury with reference to excusable homicide. The homicide was not excusable under the statute because a dangerous weapon 'was used, and was not the result of innocent misadventure in the sense of the common law.
The defendant complains because twenty-seven requested instructions were not given. The jury were adequately instructed.
At the hearing of the motion for a new trial the deliberations of the jury were arraigned and tried. The court found that no misconduct had occurred, and the finding is approved.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action is one of mandamus, to compel compliance with an order of the public utilities commission.
At its session held in the year 1915 the legislature placed on the statute book the following matter in the form of a law:
“An Act making it the duty of the public utilities commission to require railroad companies to provide proper facilitieá and to stop all passenger- trains a reasonable time at or near the state line.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That it is hereby made the duty of the public utilities commission to require every interstate railroad company operating in thiá state, and it shall be the duty of every such railroad company upon such requirement being made, to provide proper and convenient facilities within a reasonable distance of the state line for the stopping of every passenger train entering or leaving the state and for- the alighting, safety and protection of such passengers as desire to enter or leave such train at or near the state line, .and to provide that such stop shall continue for such sufficient and reasonable time as the convenience, and safety of the traveling public may require.”
(Laws 1915, ch. 283, § 1.)
Constrained by the peremptory terms of the enactment, the public utilities commission made an order, the mandate of which reads as follows:
“It is Therefore by the Commission Ordered, That the Chicago, Rock Island & Pacific Railway Company, and Jacob M. Dickinson, receiver thereof, be and they are hereby required, within thirty (30) days from the date hereof, to comply with the provisions of chapter 283 of the Session Laws of Kansas, 1915, by providing proper and convenient facilities within a reasonable distance of the state line for the stopping of every passenger train leaving the state of Kansas, and for the alighting, safety and protection of such passengers as desire to enter or leave such trains at or near the state line where the line of The Chicago, Rock Island & Pacific Railway Company crosses the state line between the states of Kansas and Missouri between the stations of Elwood, Kan., and St. Joseph, Mo., and that all such stops of passenger trains at said point shall continue for such sufficient and convenient time as the traveling public may require.”
The petition pleaded the statute, the order, and disobedience of the order, and an alternative writ of mandamus was issued. The answer returned alleged that the petition and alternative writ failed to state facts sufficient to constitute a cause of action, and set forth facts relied on to show that the statute is void and the order unenforceable. The cause is submitted on the plaintiff’s motion for judgment on the pleadings.
The facts admitted by the motion may be summarized as follows: The defendant is an interstate carrier of passengers, having lines of railroad entering the state from the east at St. Joseph, Mo., and Kansas City Mo., and passing through the state to others lying beyond it toward the south and west.
The St. Joseph line enters the state on a bridge 1,262 feet long over the Missouri river. The state line is ai the center of the river. The St. Joseph, Mo., passenger station is 2,062 feet from the east end of the bridge, and the station of Elwood, Kan., is 2,443 feet from the west end of the bridge. Between Elwood and the Missouri river there is no community or business to be served, no demand or use for a passenger station or passenger facilities, and compliance with the order would result in no benefit to the traveling public in the matter of service, facilities or accommodations to persons going from or returning to that locality. Interstate passenger trains are opérated daily in each direction through Elwood, in sufficient number to provide sufficient and efficient passenger service for the traveling public living and doing business along the defendant’s lines and for the communities served by.such lines. All of the defendant’s passenger trains entering or leaving the state through the station of Elwood stop there a sufficient length of time to allow passengers to enter and leave trains. Such trains supply all the service requested or required by the traveling public at Elwood, and adequate service for the surrounding territory.
The defendant maintains, under protest, passenger service within the state at the rate of two cents per mile. This rate was established by the board of railroad commissioners, the predecessor of the public utilities commission, as an emergency measure. An application to the public utilities commission to increase the intrastate rate to three cents per mile has been pending since November, 1914, a hearing has been had, but no decision had been rendered. Previous to March 1, 1915, the defendant had filed with the interstate commerce commission interstate passenger tariffs to become effective on that date, increasing the former rates. To circumvent the action of the defendant and other railroads pursuing the same course, the statute in question was passed. The bill was introduced in the legislature by the railroad committee of the house of representatives on February 20, 1915, and became effective as a law on publication in the official state paper on March 18, 1915. After a hearing on December 7, 1915, the interstate commerce commission authorized the defendant and other interstate carriers to increase their interstate passenger fares to two and four-tenths cents per mile, and since that date the only lawful interstate passenger rate through the Elwood gateway has been two. and four-tenths cents per mile.
Before the act was passed the public utilities commission had ample power to require the defendant and other interstate railway companies to maintain adequate passenger service and facilities for the proper accommodation of the traveling public. By virtue of the act, power over the subject of the act was withdrawn, the commission was deprived of judgment and discretion, and it was made mandatory on the commission to proceed as the statute directed. The purpose of the legislature was to provide a method whereby interstate passengers may, by buying tickets to and at specially provided state-line stations, accomplish the Kansas portion of their journeys at the local rate of two cents per mile, and so defeat the lawfully established interstate rate of two and four-tenths cents per mile.
The conclusions of the answer were that the act was not the product of an exercise of the police power, that it undertakes to regulate interstate commerce in a matter already regulated by the proper federal authority, that it casts an unwarranted burden on the defendant’s interstate commerce, and that it deprives the defendant of its property in lawfully established interstate passenger fares^
All the contentions of the defendant are sound. The act does not deal with local situations or conditions, and has no relation to any public need for better train service or better passenger facilities at or near railroad crossings of the state line or elsewhere. Stopping trains, providing station facilities, and holding trains for such time as the traveling public may require, are purely incidental matters, and the act should have been entitled “An Act reducing the interstate passenger rate for the mileage in Kansas to the intrastate rate.” That is the only true respect in which the public convenience and welfare are supposedly conserved. Public morals are indeed involved. The legislature undertook to provide a subterfuge whereby a regulation of interstate commerce, lawfully established under authority of the congress of the United States, the body invested by the constitution of the United States with power over the subject, may be defeated. -The police power, however, was reserved to the states to promote and not to corrupt public morals. Except as indicated, the police power of the state is not involved, and the act directly affects the charges of interstate carriers for interstate passenger traffic, and if enforced would deprive interstate carriers of a substantial portion of the revenues which they would otherwise derive from interstate passenger traffic.
Under the provisions of the act, a resident of Kansas going to St. Joseph, Mo., might buy a ticket to the specially required state-line station, leave the train there, buy a ticket to St. Joseph at the interstate rate for less than five cents, and again take the train, which meanwhile had been held for him. By this means he could complete substantially his entire journey at the local two-cent rate. But the act is not confined in its operation to commerce between the state of Kansas and other states. A resident of St. Joseph, Mo., desiring to go over the defendant’s line to Guymon, Okla., could complete substantially his entire trip at the local rate. Likewise a traveler from Illinois or Minnesota to Colorado or Texas, into which states the defendant’s road extends, could perform the Kansas portion of his journey at the local rate. The same is true for all other interstate railways passing through Kansas. If the state of Kansas were permitted to adopt and enforce regulations of this character other states could do likewise, and the commercial anarchy which led to the adoption of that provision of the constitution of the United States which gives to congress power to regulate commerce between the states would again exist. In this instance congress has exercised its power over the subject of the statute, and through the agency of the interstate commerce commission has established the fares which the defendant, and other railway companies in its situation, may charge for interstate passenger traffic.
' The public utilities commission cites four decisions of the supreme court of the United States in support of its order and the statute. Three of the decisions do not concern regulations of interstate commerce, and the opinions of the court merely contain pleasing commentaries on the police power reserved to the states. The fourth decision cited is conclusive against the commission at all points. The supreme court of Wisconsin sustained an order of the railroad commission of that state requiring a railroad company to stop a certain number of passenger trains each way daily at a designated station. The order was made pursuant to a statute which fixed the quantum of passenger service for every station coming within the classification made, and deprived the commission of any discretion in the matter. In an opinion holding the statute to be void, the supreme court of the United States said:
“In reviewing the decision we may start with certain principles as established: (1) It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing — that is, the local conditions being adequately met — the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement." (Chi. B. & Q. Ry. v. Wisconsin R. R. Com., 237 U. S. 220, 226.)
It is said that the order of the public utilities commission is prima fade reasonable, and that the burden rests on the defendant to show that the order is unreasonable. The answer of the defendant completely discharges the burden. Besides this, the face of the order discloses that it was a purely arbitrary regulation, not intended to relate to the subject of adequate local service or facilities, the only subject "within the scope of the commission’s power.
The public utilities commission vicariously says that the order may be unreasonable and void, and the statute still be constitutional. That' might be true if the order were the creature of the public utilities commission, but it is not. The order is the order of the legislature, precisely as if the statute read: “Every interstate railway company operating in this state is hereby required,” etc., and the simple duty to see that the requirement is obeyed was imposed on the commission.
Because the statute is void, judgment is rendered on the pleadings for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff sought to recover on a promise to pay a sum of money named in a written instrument. The defendants recovered judgment on a counterclaim set up by them. The plaintiff appeals.
This is the second appearance of this action in this court. (Brown v. Cruse, 90 Kan. 306, 133 Pac. 865.) The written instrument sued on was set out in the former opinion, and certain facts were there stated which will not now be repeated. Briefly stated,.the defendants, in their answer, alleged that they employed the plaintiff to act as their attorney in procuring a patent on a mechanical device; that he was guilty of professional misconduct; that he was guilty of fraud in his conduct toward them; and that he had damaged them in the sum of $1,229.52. The instructions have been lost, and are not set out in the abstract. However, they are not attacked.
1. The plaintiff’s first contention is as follows:
“The verdict should have been for the plaintiff on the note sued on, because,
1. The note had matured by lapse of time.
2. The event upon which the maturity of the note is predicated, failed to materialize through the fault of the defendants.”
In the former opinion the legal propositions contained in these contentions were established, and they need not be further discussed at this time. The question of fact contained in the contentions is open to discussion. On that question there was evidence which tended to show that the failure to realize the amount of the note out of the patent, or out of the manufacture and sale of the machines, was not brought about by the fault of the defendants. Presumably that question was properly submitted to the jury by the instructions of the court. The jury found against the contentions of the plaintiff..
2. The plaintiff further contends that the evidence did not support the counterclaim of the defendants. There was evidence to establish the allegations of the answer setting up the counterclaim, although that evidence was contradicted by other evidence. In the absence of the instructions, it must be again presumed that the issues raised by the answer, on which there was evidence, were properly submitted to the jury. The jury found in favor of the defendants, and, under numerous decisions of this court, that finding is final and conclusive. Citation of authorities is unnecessary and useless.
3. The plaintiff’s last complaint is that the court erred in the admission and in the rejection of testimony. The evidence admitted, of which complaint is made, was that which tended to show the efforts made by the defendants to realize on the patent. That evidence was properly admitted. The evidence rejected was that which the plaintiff attempted to introduce on cross-examination by the following question:
“Q. What I want you to tell the jury is, how the patent which was issued, and which was demonstrated by Exhibit 10, in any way injured or hurt the sale of your patent, in which Mr. Brown had an interest, if it was not issued until some months after you ceased to try to sell your patent?” \
That question was objected to as being improper cross-examination, and the objection was sustained. It is not apparent how the rejection of that evidence in any way prejudiced the plaintiff; neither does it appear that the evidence rejected was produced on the hearing of the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
This is an original proceeding brought in the name of the state to require the commissioners of Lawrence to issue bonds for the extension of waterworks owned by the city. The refusal of the defendants is based upon a doubt respecting the validity of the statute which purports to authorize such action.
The act in question was enacted in 1913. It undertake's to confer power to issue bonds for the purpose indicated .upon “cities of the second and third class, whose total indebtedness shall not exceed 15 per cent of its total assessed valuation now owning and operating, or hereafter acquiring a system of waterworks.” (Laws 1913, ch. 121, § 1; Gen. Stat. 1915, § 855.) The city of Lawrence did not own a system of waterworks when this law-took effect, but it has since acquired one. It is a city of the second class, and its indebtedness is within the prescribed limit. It is therefore covered by the terms of the act. But the contention is made that the words “or hereafter acquiring,” in the portion of the statute above quoted, are without effect because they are not within the scope of the title, which reads:
“An Act authorizing cities of the second and third class whose total indebtedness shall not exceed 15% of its total assessed valuation now owning and operating a system of waterworks to issue bonds for the purpose of enlarging, 'repairing, extending and improving such system.” (Gen. Stat. 1915, § 855.)
The word “now” as used in a statute ordinarily refers to the date of its taking effect. (Clark v. Lord, 20 Kan. 390, 396.) Construed strictly and literally, the title therefore applies only to cities which at the time the act was published owned a system of waterworks, and not to those which might thereafter acquire one. The word “now,” however, is sometimes used, not with reference to the moment of speaking, but to “a time contemporaneous with something done.” (21 A. & E. Encycl. of L. 676; 29 Cyc. 1140.) “The intent with which this -word is used must be gathered from its peculiar significance '.in ¡each case.” (Note to last text cited.) It may mean “ the time spoken of or referred to” as well as “at the time of speaking.” One of the examples of this given in the Oxford lE.ffigiish Dictionary is: “What season more important than the hiour of death ? Everything now conspires to fill the soul with gloom.” The expression is somewhat rhetorical, corresponding to the “historical present” of the grammarians, but it could leave no one in doubt that the speaker referred to the time of death and not to the time of utterance. That this use of the term is not confined to poetical discourse is illustrated by this sentence from a scientific paper in a recent review: “Curiously enough, in the early stages of this firm condition the ice is perhaps more dangerous to venture upon than when it has the ‘rubbery’ structure; for it is now brittle, and yet not of sufficient thickness to support a considerable weight at one point.” (The Natural History of Ice, Harper’s Magazine, March, 1917, p. 559.)
It is entirely clear that the draftsman of the statute under consideration, when in the title he referred to the issuance of bonds for the extension of waterworks by cities which “now” owned them, had in mind cities which owned them at the time of the proposed extension, and not those which happened to own them at the time- the act took effect. His idea manifestly was that a city which owned waterworks should, for that rea son, be given the power to use its credit for their repair and improvement. If he had substituted “already” for “now,”' where it occurs in the title, the literal meaning would 'have been much the same, yet in that case probably it would not have been suggested that it was the condition at the time of the publication of the act that was to control. We think the intention to make the application of the statute depend on the conditions at the time it should be invoked is reasonably clear from the language employed. We are required to give the title any reasonable construction that will carry out the expressed purpose of the legislature, and we think, as has been said of another statute, the one under consideration “is not unconstitutional or void, or at least it is not so clearly unconstitutional and void that we can declare it to be so.” (The State, ex rel., v. Comm’rs of Haskell Co., 40 Kan. 65, 68.) If the title, in describing the cities to be affected, instead of saying “whose total indebtedness shall not exceed 15 per cent” had said “whose total indebtedness does not exceed 15 per cent,” it would have referred literally to the percentage of indebtedness existing at the time of the enactment. But in that case no one would have doubted that the subject of the act was the granting of power to issue bonds to cities having less than 15 per cent of indebtedness at the time of the proposed issuance. Moreover, if the statute is to be construed as giving power to issue the bonds which it describes to the- cities which at that particular time owned a system of Waterworks, while denying the power to all other cities, even although they might after-wards meet the same requirements, its’Validity is at least open to a very serious doubt on the ground that it would then confer corporate power by an act which would be special because it related to certain designated cities, the number of which could not be increased or diminished, thereby transgressing the constitutional rule in that regard. (Const., art. 12, § 1; City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800.) “A statute . which confers corporate power upon an unchangeably fixed number of corporations is usually regarded as special, and therefore unconstitutional.” (Bull v. Kelley, 83 Kan. 597, 602, 112 Pac. 133.)
Upon these grounds we hold that the statute is valid and that it is the duty of the defendants to issue the bonds in question.
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The opinion of the court was delivered by
West, J.:
The plaintiff on January 14, 1916, filed a motion praying that an order issue to the defendant to appear and show cause why he should not be adjudged' guilty of contempt for failing to comply with an order made by the court on October 15, 1895, requiring him to pay the plaintiff $10 a month alimony on the first day of each month, a divorce having been granted to the plaintiff at that time.. The defendant moved to set aside the judgment for alimony, setting up that the judgment had been released, that since the release no payment had been made, and that the plaintiff was barred from any relief by the statute of limitations.
It appears that after the divorce the plaintiff, with her two little girls, lived with her parents until some eight years before filing her motion, most of the time being spent in South Carolina; that she raised and supported the children, who are now married, without any help from the defendant; that in 1908 she remarried, lived about two years with her second husband and was divorced from him on the grounds of drunkenness arid cruelty, being awarded no alimony. A year or two after the divorce between the parties hereto the defendant desired to have the alimony order released, and claims to have paid counsel for plaintiff, who is also her counsel now, for a release. The appearance docket shows a charge of five cents for filing release, and twenty cents for entering it on the judgment docket. The files are lost. The entry on the judgment docket consists of two words, “Judgment released.” Plaintiff’s counsel testified that the defendant wanted to know if he would press him for alimony if he came back, to which counsel responded that he knew nothing' about the plaintiff as she had left the country and that upon receipt of $25 attorney’s fee, he having nothing to do with the alimony, he would not press that, and that he executed a release for his attorney’s fee, but had no authority to compromise or release plaintiff’s alimony. The defendant was remarried in 1897. No effort heretofore seems to have been made to require any attention to be paid to the alimony order. The court discharged the defendant and the plaintiff appeals.
The defendant seeks to justify the action of the court on the grounds that the record showed a release, that the proceeding was barred by the statute of limitations, that the plaintiff’s remarriage had the effect of depriving her of any further right to look to the defendant for alimony, and that she was guilty of laches.
From the testimony it does not appear that the judgment or order requiring the payment of alimony was ever in fact or in law released, although it may well be that the defendant thought he had secured its release. From the showing made the plaintiff did not consent to any release nor authorize her counsel to execute any, and what was done regarding the payment of an attorney’s fee together with the entry of the two words “judgment released” on the docket are not deemed sufficient to operate as a satisfaction.
The statute of limitations is invoked on the theory that the order for the payment of alimony amounts to a judgment collectible on execution and liable to dormancy in five years.
Section 7346 of the General Statutes of 1915 provides that unless execution be sued out within five years from the date of any judgment it shall become dormant and cease to operate as a lien on the estate of the judgment debtor. By section 7320 judgments are made liens on the real estate of the debtor within the county where they are renderd. In Scott v. Scott, 80 Kan. 489, 103 Pac. 1005, the nature of an order for the payment of alimony was considered and it was held that an allowance of permanent alimony payable in installments does not create a lien on the property of the husband unless the record affirmatively discloses that the court intended it to have that effect. It was said in the opinion that a decree for alimony fits the definition of a judgment under section 395 [Civ. Code of 1909, § 393] of the civil code, but that as the court in making the order has full control of the matter as to whether or on what property it shall become a lien, in the absence of any direction the fair inference is that the court intends the order to be enforced by an attachment for contempt and not by lien and execution. Whether any other proceeding would be necessary to keep an order of this sort alive is not discussed and need not be determined at this time. Even on the theory of statutory dormancy each succeeding month brings a new liability and the dormancy of the order as to payments up to a certain date would not have the effect of barring the plaintiff from subsequent payments on which on any theory the statute of limitations had not run. Touching various phases of this question the following authorities are more or less in point: 23 Cyc. 1510; Lemert v. Lemert, 72 Ohio St. 364; Peeke v. Fitzpatrick, 74 Ohio St. 396; Dewey v. Dewey, 151 Mich. 586; DeUprey v. DeUprey, 23 Calif. 352; Gaston v. Gaston, 114 Cal. 542; Stokes v. Sanborn, 45 N. H. 274; Schuler v. Schuler, 209 Ill. 522.
Whatever may be thought or should be thought about the policy or propriety of requiring a divorced husband to continue payments of alimony to a wife, remarried to another man, the authorities are preponderant in support of the doctrine that her remarriage does not of itself operate as a release of the obligation, although it may well be a ground of application for discharging the defendant from further payments. (14 Cyc. 787; 1 R. C. L. 950; 2 A. & E. Encycl. of L. 138; Note, 11 Ann. Cas. 523.)
It is argued that the claim is stale and the defendant has been guilty of laches. But from the meager showing furnished by the record, the hardships endured by the plaintiff, and the absence of any testimony touching the past or present ability of the defendant to pay, it does not appear that by her delay the plaintiff has lost all her rights to all the monthly payments ordered to be made to her. Mere delay does not necessarily constitute laches. (Hudson v. Herman, 81 Kan. 627, 107 Pac. 35; Harris v. Defenbaugh, 82 Kan. 765, 109 Pac. 681; Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098; Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652; City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589.)
The maj ority of the court are of- the opinion and hold that the plaintiff made out a prima facie case by virtue of which the defendant should have been required to show cause why he should not. be held in contempt and that no sufficient showing of the kind was made by him.
The order discharging the defendant is revérsed and the cause remanded for further proceedings.
West and Marshall, JJ., dissent. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Eph Larson and Matt Sweet against the city of Ottawa to determine the validity of an assessment, to pay for the paving of Ash street in that city between Sixth and Seventh streets. The case was submitted upon an agreed statement of facts from which the trial court determined that the assessment as made by the city was improper and should be enjoined. The following plat shows the location of the district in question:
Baldwin & Taylor’s addition was platted when the west line of the city limits was Ash street, and this addition extended west 1296 feet. As will be seen from the plat, the addition is divided into eight lots. The district assessed by the city for the tax included lots 2 and 4. Plaintiffs’ property consists of lot 4. There are no intersecting streets between lots 2, 4, 6 and 8, these lots forming one continuous tract, extending from Ash street to Beech street. On the east side of Ash street for the distance improved is block 118 which is divided into lots 25 feet wide and 150 feet long, fronting on Ash street. The trial court determined that the assessment should extend only to the middle of lot 2, designated by the trial court'as block 2.
The city appeals and contends that since there are no streets intersecting the tract between Ash and Beech streets and Sixth and Seventh streets, the whole tract constitutes a block, being surrounded by streets, and that the assessment district properly extends to the center of such block; while the plaintiffs contend that the tract should not be regarded as platted land and in no event should the assessment extend further than 300 feet west of Ash street, and that if it should be regarded as platted ground each one of the lots should be considered as a block and that the assessment district should therefore only extend to the center of lot 2. Two methods of assessing property for the improvement of the city streets are authorized. If the property is platted the assessments are to be made upon each block separately on all lots and pieces of ground to the'center of the block on either side of such street. (Gen. Stat. 1915, § 1705.) If the land abutting on the street is not platted into lots and blocks the assessments are to be made on the pieces of ground adjoining the street improved to the distance of 300 feet from such street. If the ground in the addition in question can be regarded as platted territory the assessment must be extended to the center of the block, and if it is unplatted ground the assessment must be extended 300 feet west of Ash street. In .this case the addition has been platted in the usual way except that perhaps the blocks are larger than many of the blocks in the city; that is, the blocks are 1296 feet long and 402.5 feet wide, while the lots are about 325 feet wide and 402.5 feet long. There is no standard provided by statute as to the size and shape of blocks, and there is no uniformity in the subdivisions that have been made. In view of the fact that there is no prescribed size by either rule or practice it can hardly be said that the addition can be treated as unplatted ground because of the size of the blocks. In the matter of assessments for street improvements there has been uniformity of decision that a block is a square or tract of platted land surrounded by streets. (City of Ottawa v. Barney, 10 Kan. 270; Blair v. City of Atchison, 40 Kan. 353, 19 Pac. 815; McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438; Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Cravens v. City of Salina, ante, p. 161.)
In the Cravens case, supra, the block assessed was about twice as long as other blocks abutting on the street improved, but it was held that the exceptional size of the block did not take the assessment out of the statutory rule. It was said:
“The block as platted is the unit in apportioning' special assessments and whether it is larger or smaller than another block abutting upon an improved street it must be separately assessed. (Bowlus v. Iola, 82 Kan. 774.) The length of that block may slightly affect the assessments made upon the lots along the street, but absolute'-.equality is not attainable. Some blocks abutting on a street are deeper than others but a variation in depth has never been regarded as cause for departing from the statutory rule nor as invalidating the assessments made.” (p. 163.)
Plaintiffs refer to McGrew v. Kansas City, supra, as an authority supporting their claim, but there the assessment was extended over a large tract of unplatted land lying within the corporate limits. It was conceded by all the parties that the tract had not been subdivided or platted.
The addition must be regarded as platted ground and the tract which is surrounded by streets arid of which plaintiffs’ ground was a part must be treated as a block. The eastern half of the block is subject to assessment for the improvement of Ash street.
The judgment will therefore be reversed and the cause remanded with directions to render judgment in accordance with this opinion. | [
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The opinion of the court was delivered by
Dawson,. J.:
The plaintiff brought this action for damages against the city of Kansas City on acount of injuries which she suffered by falling on a public sidewalk which the city had knowingly and negligently permitted to remain for a long time covered with ice. Her petition alleged that she received these injuries on or about January 19, 1916, and it concluded with the following allegation:
“Plaintiff further alleges that within four months after said injury complained of she filed with the city clerk of Kansas City, Wyandotte county, Kansas, a statement setting forth the time, place and circumstances of the injuries complained of; that plaintiff failed to state therein the exact date of injury. A copy of said statement is attached to this petition, marked Exhibit ‘‘A.’ ”
Exhibit “A” in part reads:
“Statement. In re Marie McHenry v. Kansas City, Kansas.
"‘The undersigned claimant states that on or about the 12th day of January, 1916, . . . she . . . slipped and fell on the sidewalk . . . striking the bottom of her spine and coccyx on the ice and hard sidewalk; . . . that the ice had been on said sidewalk for a long period of time prior to the time plaintiff was injured and a dangerous and defective place existed for pedestrians at said place,” etc.
The city’s demurrer being overruled below, the cause is here for review.
It will be noted that the statement giving notice to the city of the plaintiff’s injuries recites that the accident occurred on or about January 12, 1916. Her petition alleged that it occurred on January 19, 1916.
The statute requiring that the city be notified as a condition precedent to the maintenance of such an action as this reads:
“No action shall be maintained by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months' thereafter, and prior to the bringing of the suit, file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto.” (Gen. Stat. 1915, § 1460.)
The statement requires that the time of the accident be' given. This is only fair. The city should have an opportunity to investigate the facts and merits of the claim, and to prepare its defense against demands which are false, frivolous or extravagant. For the purpose of such an investigation an accurate statement of the time is material and important. It is an element of substance and not of mere form in the making of 'the statement required by the statute. This court is always lenient and liberal as to mere matters of form, and will overlook a defect in the statutory statement which does not or can not mislead the city (Cook v. Topeka, 75 Kan. 534, 90 Pac. 244), but here the gross discrepancy between the date of the accident and the date alleged in the statement could not fail to prejudice the city and to mislead and frustrate it in any independent investigation of the facts which it may have undertaken. Naturally the city officials would inquire as to the existence and quantity of ice on the sidewalk on January 12. The accident occurred seven days later. With our variable Kansas winter climate, it is entirely unlikely that the weather condi-' tions of January 12 would be the same as those of January 19. Liberality and leniency may excuse defects in the statement as to the accuracy of the circumstances under which the alleged injuries were sustained, and even a loose description of the place, as in Cook v. Topeka, supra, may be overlooked ; but it- is not easy to see' how a gross discrepancy as to the time of the accident can be excused. The time — not necessarily the hour, but the date — -is well known by the plaintiff. Therefore the statute requiring the statement to give the time must be complied with. To say that the claimant may name a false and misleading date instead of the correct one — here .the discrepancy was a week — “is not,” as the Connecticut supreme court says, “to construe the statute but to repeal it.” (Gardner v. City of New London, 63 Conn. 267.) In that case the statutory statement gave the date of - the injury as May 5. The correct date was May 2, and it was held that the plaintiff could not recover.
In City of Fort Wayne v. Bender, 57 Ind. App. 689, the notice of the injury stated that it occurred on April 18. The petition and the evidence established that it occurred on April 28. Judgment for plaintiff was reversed.
Other cases to the same effect are Ouimette v. City of Chicago, 242 Ill. 501, and Carter v. City of St. Joseph, 152 Mo. App. 503. In Taylor v. Peck, 29 R. I. 481, a variance of one day between the date alleged in the notice and the date shown by the evidence was held fatal to a recovery. We note that in Murphy v. City of St. Paul, 130 Minn. 410, a misstatement of one day in the date given in the notice was held not fatal to a recovery. That was a case where the injury was caused by a defective sidewalk. Perhaps a distinction could be based on that point. A defective sidewalk would remain defective until the fact of the defect could be investigated. Ice on a sidewalk would only remain until the weather moderated. (See Note in Ann. Cas. 1913 A, 671.)
The judgment is reversed and the cause remanded with instructions to sustain the demurrer to plaintiff’s petition. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff, Freemont Rodgers, brought this action against the defendant, O. R. Slavens, in three counts, and the trial court’s judgment on the first and third of these is the subject of this appeal.
The first count alleged that the defendant was indebted'to plaintiff as the assignee of an account stated for services, business transactions and expenses, in the sum of $1547.64, due from defendant to a commission firm in Kansas City of which plaintiff was a partner.
The third count was based on a promissory note for $20,-409.41, signed by J. D. Rawlins and O. R. Slavens, and indorsed by Freemont Rodgers. Plaintiff alleged that he had indorsed this note at the request of Slavens, before delivery, as an accommodation indorser, and that Rawlins and Slavens had failed to pay the note when due, whereby plaintiff was compelled to pay and did pay, and that the note was sold, transferred and delivered to him, and that it was due and unpaid.
In his answer to the first count, defendant denied the correctness of the account stated, and denied that he was indebted to plaintiff. Certain features of the transactions involved in answer to the third count were relied upon to show that defendant owed nothing on the account stated, and the verification was, “that the allegations in said answer denying the correctness of the account set forth in plaintiff’s petition are true.”
Slavens’ defense to the promissory note, in substance, was that in September, 1911, he and Rodgers purchased 800 steers in El Paso for $26 per head, Rodgers having arranged for all the purchase funds through a Kansas City bank, except the sum of $1142, which the vendor óf the cattle owed Slavens. A bill of sale for the cattle made by the vendor to Slavens was immediately assigned to the bank. The cattle were shipped for Kansas City, but unloaded for rest and feed in Dalhart and there sold for $30 per head to J. D. Rawlins, a wealthy citizen owning a stockyard at that place. One of the terms of the deal was, that if the cattle were sold before the first day of the following January at a profit Slavens was to get a share of the profit. If not sold by January 1, Slavens was to have no further-interest in the cattle. Rodgers negotiated a loan for $20,409.41 from the Kansas City bank for Rawlins to pay for the cattle — the balance of the purchase price being in cash. The bank required that Rodgers should indorse Rawlins’ note, and Rodgers wrote to Slavens requesting him to indorse it also. Parts of the correspondence between the parties may be noted:
[Slavens to Rodgers, October 10, 1911.]
“Major Rawlins and I are here at the Springs this morning and I talked with him more fully about the cattle he bought. He says • the paper is to be made to him individually as he understood it, and whatever interest I want in the cattle shall be a silent interest. I did not know whether you understood this or not, so I am writing you and if it is satisfactory you can take out my money along with yours. I told Major I would want one-third interest. He.says if the cattle is not sold in ninety days he wants the exclusive right and ownership of them, but in case they are sold in ninety days, I can have one-third of the net profits,” etc.
[Rodgers to Slavens, October 12, 1911.]
“Yours of Oct. 10th, from Colo. Springs received have followed your instructions in regard to making paper to Rawlings and send same to 1st National Bank, Dalhart for him to sign and have instructed the bank to forward same to you and when received, please endorse on back of note and return to me. Bank requires me to do same, and as you are a silent partner in the deal, you can have no objections to endorsing.”
When the Rawlins note was forwarded to Slavens for his indorsement he was confined to his bed with sickness and incompetent to transact business, and his bookkeeper brought it to him, and through misunderstanding he signed the note on its face as a maker, when he was only requested by Rodgers to sign as an indorser. The bank, however, in its correspondence with Slavens about the note recognized Slavens as an indorser, referring repeatedly to the “Rawlings’ note on which you are indorser,” and the “note of J. D. Rawlings indorsed by you.”
The defendant Slavens pleaded, and the evidence which he produced tended to prove that Rodgers retained his interest in the cattle when they were sold to Rawlins. It seems clear that Rodgers was a principal on the original indebtedness incurred for the purchase of the cattle. On’cross-examination he testified:
“Q. Did n’t you write Mr. Slavens a letter on the 15th of August, 1911, in which you said, 'I will make all necessary arrangements to pay for the cattle.’ A. Apparently I did.
“Q. So you did on the 15th of August, 1911, say to Mr. Slavens in this letter, T will make all necessary arrangements to pay for the cattle as they are put on board cars and furnish money to carry remainder of the bunch until such time of sale.’ A. Yes sir.”
Other features of the evidence were, that the freight bill on the cattle from El Paso to Dalhart was $1600; that in the presence of a witness, who was the president of a Hutchinson bank, a conversation occurred at the sick bed of Slavens, where Rodgers explained that he was the owner of a half interest in the cattle sold to Rawlins, and that the interest of Slavens, which was the $1142 which he had advanced on the original purchase price, and his share of the profits by the sale to Rawlins, $800, should be paid to the Hutchinson bank for the benefit of Slavens. To another witness Rodgers asserted that he had a half interest in the cattle. Rodgers received all the cash paid by Rawlins; Slavens none.
In addition to the general verdict on each count for defendant, there were special findings made by the jury:
“7. Did Slavens sell an interest' in said Cameron’s cattle to J. D. Rawlings? Ans. Yes. -
“8. Did Slavens and J. D. Rawlings execute said note for $20,409.41 to the Interstate National Bank as makers? Ans. .They did; but evidence shows that Slavens should have signed as an indorser.
“9. Did the Interstate National Bank require Preemont Rodgers to sign said note on the back thereof as an accommodation indorser before extending the credit to O. R. Slavens and J. D. Rawlings, the comakers of said note? Ans. Yes.” '
The plaintiff contends, first, that he was entitled to an instructed verdict for $1547.64 on the account stated in the first cause of action, because it was clearly proved and not contradicted. Slavens did not dispute any item of the account, but he denied its correctness, and it apparently was incomplete — therefore incorrect — for it entirely omitted to give Slavens credit for the $1142 which he furnished to purchase the cattle. It omitted also Slavens’ share of the profits of the sale of the cattle to Rawlins. Rodgers and Slavens sold them to Rawlins at an advance of $4 per head, which on 800 cattle would be $3200, and after deducting $1600 for the freight charges would1 leave $1600 as the net profit, one-half of which belonged to Rodgers and one-half, $800, to Slavens. The sum of $1142 and $800 is $1942, and as Rodgers exclusively managed the fiscal end'of the transaction, and it does not appear that Slavens ever laid hands on any of the money, it would seem that this sum would be a proper set-off against Rodgers’ demand against Slavens for $1547.64 as far as they equaled each other. (Civ. Code, §§ 97, 100, 102.) There was, therefore, nothing due on the first count, and it can not be conceded that the jury disregarded the pertinent instruction of the court covering that phase of the case. Fault; is found with the instruction itself, in that it assumed “that there were controverted facts to be decided by the jury as to whether anything was due on the account.” But the correctness of the account was in issue, and it was shown to be incorrect in that it omitted the items constituting the set-off.
It is next contended that plaintiff was entitled to judgment on the third count on the special findings of fact, and that the special findings are inconsistent with the general verdict. Wé discern no inconsistency. Rodgers was one of the original parties, a principal, in the entire series of transactions relating to the purchase of the cattle, the financing of the deal, the profits, the sale to Rawlins, the obtaining of credit for Rawlins, the receipt of Rawlins’ cash payment, and in the procuring of Slavens’ signature to the note. He only requested Slavens to sign- as an indorser. That Slavens signed as a maker by mistake did not alter his real status as an indorser, although if the bank had claimed to hold the note without notice of Slavens’ mistake and had sought to enforce it against him as maker it could have held him as such. But it did not do so. It repeatedly recognized and admitted, in writing, that his relation to the note was that of an indorser. Nor did Rodgers occupy the position of one taking under a holder in due course without notice. Rodgers never was a stranger to the transaction, but was a maker and principal throughout, and when he paid the note he paid his own debt; or, speaking more, accurately, he paid the debt of himself and Rawlins. Such payment discharged the note. (Gen. Stat. 1915, § 6647.) The' cases of Lill v. Gleason, 92 Kan. 754, 142 Pac. 287, and Underwood v. Fosha, 96 Kan. 240, 150 Pac. 571, cited by plaintiff, are not pertinent to the facts here presented.
Where no intervening equities exist, and no rights of strangers or others holding in due course are affected, and only those of original parties are concerned, no question peculiar to the transfer of negotiable paper is involved (Bank v. Clarke, 99 Kan. 18, 21, 160 Pac. 1149), and there is no principle of law which bars the defense pleaded and proved by Slavens. The ordinary principles of the law of contracts control. (8 Cyc. 25-28; 17 Cyc. 694; 3 R. C. L. 1118, 1120.) The plea of Slavens that it was by mistake that he signed the note as maker instead of as an indorser was supported by proof sufficient to satisfy the most exacting rules of evidence as to the degree and quality of proof necessary to maintain such a defense. (Parker v. Hull, 71 Wis. 368, 5 Am. St. Rep. 224.)
No substantial error is disclosed and the result seems in accordance with justice, and the'judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This .was an action by R. A. Morris against James D. Ibach to recover damages for the alleged breach of a contract to deliver three acetylene generators purchased from the defendant. Plaintiff appeals from the judgment in defendant’s favor.
About February, 1913, plaintiff bought a stock of hardware from the defendant, who had previously bought the same from one named Daniels. Included in the invoice of the stock of goods sold were four acetylene generators, three of which were still at the factory of the Wichita Acetylene Generator Company, from which Daniels had originally purchased them. At the time of the sale plaintiff was informed that three of the generators were still at the factory, being held subject to the owner’s order, and that he could get them any time he would order them. For this purpose Daniels gave plaintiff an order upon the generator company for the delivery of the generators to plaintiff. Plaintiff based his action on the ground that defendant did not have full title to the generators when the sale was made and that plaintiff was unable to get possession of them from the generator company. He testified that upon presentation of defendant’s order the generator company refused to deliver the property, stating that the generators were not fully paid for by Daniels and that the company was entitled to enforce certain contract rights under which they were sold to Daniels. He also testified to other unsuccessful attempts to get possession of the generators. On the other hand,, there was evidence to the effect that the generators were fully paid for by Daniels in October, 1912, which was before he sold the stock to the defendant; that the generator company always recognized plaintiff as the owner of the generators, held them subject to his order, and had never refused to deliver them to him; but that instead of taking possession of them he had attempted to get the generator company to buy them back from him. The trial was before the court alone and only a general finding for defendant was made.
The decision of the case turns upon the disputed question of fact. There was some confusion and much conflict in the testimony. Sufficient evidence was offered tending to show that the plaintiff had obtained a complete title to the generators, that they were held subject to his order, and that he could have had possession of them if he had chosen to take it. He appeared to proceed upon the theory that he had ownership and control of them when he attempted to sell them to the company. The trial court settled the dispute adversely to the plaintiff’s contention, and its finding is well supported by the evidence.
Judgment affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was charged with keeping and maintaining, on certain premises in Coffeyville, a gambling place, where persons were permitted to bet money on a game of chance and to resort for gambling purposes. He was convicted and sentenced to a term in the penitentiary not exceeding five years. In his appeal he contends that the verdict and judgment are not sustained by the evidence.
Informations were filed charging Scotty Watson and Bob Hicks, the appellant, with maintaining and keeping a gambling resort. By agreement both defendants were tried together, with the result that both were convicted. The appellant filed a motion for a new trial, which the court overruled. The evidence of the prosecution showed that the premises in question, a room under the Condon bank, were used as a pool hall, and that a great many persons congregated there at times and played games of cards and dice for money. It is contended by the state that the abstract discloses an abundance of testimony to sustain the verdict and judgment. The principal witness for the prosecution was C. P. Carnes. He testified that Bob Hicks was “in and out of the pool hall there in both departments.” In answer to the question, “Who seemed to be in charge of the place?” he said: “There was several in there at the time. I don’t know just who had charge of the place.”. The nearest the testimony of this witness came to connecting the appellant with any management or control of the premises was as follows:
“Q. Do you know what they called this place down beneath the basement; what name it went by? A. No, I don’t know what the name of the pool hall was.
“Q. ■ To refresh your recollection, was n’t it generally called Bob and Scotty’s place? A. I understood they run the place; that is all I know; it is hearsay.”
The city attorney, who was agent for the bank, testified that he rented the basement to Scotty Watson on an oral lease; that Watson occupied the basement between one and two months, when the bank made complaint and he asked Watson to vacate. He testified that' he never knew of Hicks having the reputation of being in the gambling business, and never learned anything that would lead him to believe that Hicks had anything to do with the pool hall; that he first heard it intimated when insinuated by the county attorney at the preliminary hearing.
W. R. Brooks, a witness for the state, testified as follows:
“Q. What was the name of that place? A. I don’t know; it was a pool hall.
• “Q. To refresh your rebollection, was n’t it called Bob or Scotty’s place? A. Oh, I have heard it referred to — to' go down to Scotty’s or down to the pool hall.
“Q. Did you ever see Bob Hicks down there? A. Yes.
“Q. Did you see him there with his hat off? A. I don’t know whether he had his hat off or not; never paid any attention.
“Q. What was he doing there? A. Walking around like the rest of us.
“Q. Who did you understand was running the place? A. Well, I said it was referred to as Scotty’s pool hall.
“Q. Whoever had charge of things was running it that day? A. Yes, sir.
“Q. Who was it? A. Scotty. I don’t remember seeing Hicks there. Had I seen Hicks there I believe I would have remembered it. Have heard the place referred to as ‘Scotty’s Place,’ but never heard it called ‘Bob and Scotty’s Place.’ Never heard Bob and Scotty’s names connected until this 'case was brought. I started to shoot dice down there once and Scotty stopped the game. Scotty asked us if we wanted to get. him arrested. I never saw Hicks gambling down there.”
On his cross-examination this witness testified
“Q. You said it was referred to as Scotty’s place; was that the name it went by generally among the boys? A. I have heard it referred to in that way.
“Q. Did you ever hear it referred to as Bob and Scotty’s place until this case? A. No, I can’t say as I did.
“Q. You never heard those names connected until this case was brought, did you? A. No, sir.”
Scotty Watson, charged jointly with the appellant, testified that the only gambling game he got any “rake-off” from was a game of pitch for cigars. He was asked on cross-examination :
“Q. How do you play that game? A. Play four-handed or single-handed. They played pitch for cigars.
“Q. Who took care of that game for you? A. I took care of it most of the time myself.
“Q. Who took care of it the rest of the time? A. Anybody. Sometimes two or three would come in and play among themselves.
“Q. Did Bob Hicks take care of it? A. No, sir, not that I recollect; he might sometimes.
“Q. What part of the-pool hall did Bob Hicks take charge of? A. None. ,
“Q. You said he might have took charge of that pitch game for cigars? A. He could have played; he loafed around there, set around there a good deal; we have always been pretty good friends.
“Q. He was always there helping you was n’t he? A. No he was n’t there helping me.”
The appellant was not charged with betting money or property upon a game of skill or chance at a gaming-house. Had this been the charge the evidence might have been sufficient to sustain a conviction; but the charge against him was that he kept and maintained a place where others were permitted to resort for gambling purposes. This offense is made a felony by section 295 of the crimes act (Gen. Stat. 1915, § 3622), and punished by imprisonment and hard labor for a term of not less than one year nor more than five years.
In the opinion of the court the evidence can not be held sufficient to warrant the conviction, and the judgment will be reversed and the 'cause remanded with directions to grant a new trial. | [
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The opinion oí the court was delivered by
Burch, J.:
The action was one for breach of the covenants contained in a warranty deed. The plaintiff recovered and the defendant appeals. • ,
The deed undertook.to convey a strip of land two rods wide and forty rods long, described as Eastabrook street. The plaintiff claimed the land was a public highway, and that it became such by dedication of Samuel H. Eastabrook, the former owner, and acceptance and use by the public. The court made very full findings of fact, which the evidence sustains. It would not make the world any safer for democracy to print the findings of fact, or to print and debate the evidence. The evidence and the findings are sufficient to warrant the inference of dedication. In the findings the court noted the opinion of Samuel H. Eastabrook’s son, expressed at the trial, that Samuel H. Eastabrook intended the strip of ground as a private way. This court is not permitted to choose between the opinion of the witness and the opinion of the trial court. If choice were permitted, the'opinion of the trial court would be preferred.
The defendant argues that the highway was not an encumbrance within the meaning of the covenant of the deed relating to encumbrances. The case of Ireton v. Thomas, 84 Kan. 70, 113 Pac. 306, is cited, in which it was held that a levee across a tract of land did not constitute a breach of the covenant against encumbrances contained in a deed of the land. In this case the tract conveyed was the highway. The exclusive right of the public in perpetuity affected the title, seizin and right to convey of the grantor, and affected the quiet enjoyment of the grantee. Consequently there was no room for the implication indulged in the Ireton case that the parties to the deed took into consideration the visible fact of the highway, fixed the price accordingly, and considered the covenants of the deed as not applying to the existence of the highway.
The court found the value of the land to be $300, and assessed the plaintiff’s damages accordingly. Under the circumstances which have been stated, the plaintiff, for all practical and beneficial purposes, loses the land. The possibility of a reversion is too remote to be considered of value, and the defendant suffered no prejudice on account of the measure of damages applied.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This is an appeal from a judgment rendered against the city of Leavenworth on account of water furnished to it by the Leavenworth City and Fort Leavenworth Water Company, which is under the control of the state public utilities commission. No controversy exists as to the quantity of water furnished, and the charge was made at a rate fixed by the utilities commission. The defendant complains because of the refusal of the court to permit it to introduce evidence to show these facts:
The plaintiff, during the period covered by the account sued upon, had sold water to the federal government, for use on the military reservation, at a less rate than that charged the city, and at a less rate than that fixed by the utilities commission.
An understanding and oral agreement had been entered into between the city commissioners and the plaintiff, for the charging of a less rate than that fixed by the utilities commission.
The plaintiff had violated its obligations to the defendant by ■refusing to sell water to persons except upon their compliance with unreasonable conditions, by refusing to make extensions required under rules of the utilities commission, and by refusing compliance with ordinances of the city.
We approve the ruling of the trial court in rejecting this evidence. So long as the rate fixed by the utilities commission remained unaltered by that body, it was not subject to change by agreement of the parties, and the water company was entitled to collect payment on that basis. Whatever remedies may have been open to the city for the company’s misconduct, the refusal to make payment for the water it had used, at the legally established rate, was not among them.
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The opinion of the court was delivered by
West, J.:
The plaintiffs bought a large amount of álfalfa with which to feed sheep, and after having paid for the same and claiming to have discovered a large shrinkage in the amount brought this suit to recover the difference. They alleged, among other things, that the defendant represented that the alfalfa amounted to about 900 tons, and,
“That defendant to induce plaintiff to pay for more hay or alfalfa than there really was, did falsely state, represent and warrant to them, that 400 cubic feet of said hay measured as defendant • measured it, would equal or amount to one ton, that he had often measured and weighed the hay grown upon said premises under other contracts in reference to the sale thereof similar to this with plaintiffs, and had never been required to settle by weight, for that in such instances, after weighing the measurements of defendant had been found correct and favorable to the purchaser, upon a basis of 400 cubic feet to the ton, all of which statements and representations were false and untrue and so known by said defendant to be, and 400 cubic feet of said hay, measured as defendant measured it, would not make a ton, nor hardly two-thirds thereof, which said defendant well knew.”
It was agreed that the plaintiffs should have the option of weighing certain stacks and from the weight should be ascertained the entire number of tons in all the stacks measured. It was alleged that by accepting the measurement of the stacks about which there is no dispute there were according to the plaintiffs’ theory of 400 cubic feet to the ton 952% tons; that upon weighing certain stacks the correct amount of hay was found to be only 599 tons, leaving a difference which at $8 a ton would make an excess of $2830 paid. The trial resulted in a jury allowing the plaintiffs just one-half of the amount claimed, and on appeal to this court, Smith v. Hanson, 93 Kan. 284, 144 Pac. 226, it appeared that according to the plaintiffs’ theory of weight thejr were entitled to twice what the jury had allowed, and that in order to substantiate their claim they had introduced evidence as to the amount of alfalfa a sheep would consume in a given time. But according to the defendant’^ theory of measurement they were entitled to nothing. It was said that under the circumstances it was competent to show the oral agreement as to the time the weighing was to be done; that if the weights controlled, the plaintiffs were entitled to the full amount claimed. Also,
“If the weight was decided, by ascertaining the number of tons in two of the stacks, and applying the proportionate correction to the whole, that result would govern. . . . The defendant maintains that, through some mistake, the measurements applied to the two stacks, which were weighed, were not those of these two .stacks, and the jury may have so found. But in that case no reason is apparent why the correct measurement should not have been applied, and the weight determined in that manner. The jury could determine which stacks were actually weighed, and whichever they were, it would seem there should be no difficulty in ascertaining their measurement. Upon these grounds the judgment is reversed and a new trial ordered.” (p. 287.)
As to the evidence of how much alfalfa a sheep would consume, it was said that the court regarded the contract as fixing the manner in which the weight of the hay should be determined. It seems that this was construed by the trial court and by counsel for defendant as holding substantially that the only question to try was the identity of the ..stacks weighed. Objection was made to any testimony as to the statements of defendant that 400 cubic feet would make a ton, also attempts to exclude such evidence after it had been received. But whether because such assurances were a part of the conversation as to when the weighing should be done, or for some other reason, it was received. And it was permitted to be testified that the money would not have been paid before the stacks were measured had not these statements been relied upon. Plaintiffs also again offered evidence touching the amount of alfalfa which one sheep would consume, which was rejected. The defendant offered proof by expert hay men that 400 cubic feet would make a ton. This was rejected, and the ruling is complained of because the evidence sought to be introduced was to meet the issue and evidence of false assurances as to the method of measurement, and also because it would have aided the jury in ascertaining which party was right in the dispute as to which particular stacks were in fact weighed. It is suggested that if it could have been demonstrated that the 400 cubic feet theory is correct it would have had a strong tendency, if not the inevitable effect, to show that the defendant must have been right in his contention as to the identity of the stacks weighed. So long as the plaintiffs did not concede the correctness of the defendant’s system of measurement, but permitted their allegation of its falsity to stand together with their assertion that it would fall one-third short, either the question of assurances as to its correctness should have been kept from the j ury, or else the proffered testimony should have been' received. The contract fixed two methods of ascertainment, measuring and weighing. If 400 cubic feet in fact make a ton, any fraudulent intent on the part of the defendant would effect nothing even if proved to have existed; if not, any guaranty to that effect would have been equally potent whether made fraudulently or honestly. Hence in reality the question of fraud is in no effective sense in the case at all. It is also true that if the stacks had all been weighed, or if no dispute had arisen as to which ones were in fact weighed, the question of measurement would be entirely out of the case. But in view of the sharp conflict in the evidence as to the identity of the two stacks selected and weighed by the plaintiffs, the correct ness of the defendant’s method of measurément became a matter of competent and material character, for it is not (possible that a stack containing ten tons by weight could contain one-third less than 4000 cubic feet if as a matter of fact 400 cubic feet make a ton.
' Complaint is found with some of the instructions for making prominent the alleged false guaranty and the reliance thereon, because accentuating and calling special attention to the idea of fraud to the prejudice of the defendant in the minds of the jury. With the issues remaining as they were, it was difficult to state them or instruct without including the matter of fraud, and, indeed, the defendant requested a number of instructions thereon which were substantially given. This but makes it the more plain that the rejected testimony as to the system of measurement should have been received. • On the other hand, it is insisted that the defendant’s counsel led the court into the error of trying to confine the testimony to identity of stacks weighed, and that it should have no right to complain of the result. The fact remains, however, that the defendant sought to eliminate all. question of measurement but succeeded in eliminating only his own expert testimony relating thereto.
Two jurors on the regular panel were discharged when it was disclosed on their examination that they had been subpoened as witnesses for the plaintiffs. They were not called to testify. The controversy over this point is spirited. While no substantial prejudice appears to have resulted in this instance, the practice is not to be encouraged.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a real-estate agent to recover a commission. The plaintiff prevailed, and the defendant appeals. ' The principal error assigned is that the court gave the jury the following instruction:
“Under the law of this state a real estate broker has earned his commission when he has produced a customer with whom his principal enters into an enforceable agreement for the sale of the land, although the title does not actually pass, and where such contract_is enforceable the question of whether it was abandoned either by the default of the vendor or vendee is of no consequence so far as the question of the agent’s commission is concerned.”
The elements of the controversy were stated in the opinion disposing of a former appeal, Ingalls v. Smith, 93 Kan. 814, 145 Pac. 846. It there appeared that the defendant, who was vendor, reserved two options in the contract of sale, one a choice between two Oklahoma mortgages, and the other an option to take or refuse an Oklahoma mortgage, as part payment of the purchase price. The plaintiff had requested a peremptory instruction to the jury to find in his favor for the amount of the agreed commission. A portion of the opinion follows: -
“The evidence shows that the defendant selected the $3500 Oklahoma mortgage under the contract, and that he made and tendered a deed of conveyance in execution of the contract, so the options had been exercised and were out of the case before this suit was commenced. It is difficult to see how he can successfully claim that the contract was not enforceable. When he indicated his acceptance of the Oklahoma mortgages and made his selection from them, the contract was as binding upon him as though the writing had provided absolutely that he should take them. If the only question on this branch of the case had been whether the commissions were earned when the contract was made and the option was exercised by the defendant, an affirmative answer would be required, and in that event the plaintiff would have been entitled to the requested instruction.” (p. 818.)
In the evidence on which these declarations were based were two writings, one an indorsement on an envelope, and the other a memorandum contained in the envelope. At the second trial the indorsement on the envelope was read to the jury, but was not preserved in the record. The defendant reproduces it from the abstract filed in connection with the former appeal. The memorandum placed in the envelope was not read to the jury at the second trial. Its contents may be inferred from testimony concerning it, but the defendant reproduces it from the abstract filed in connection with the former appeal. The defendant argues from these writings that his options were not exercised; that they were exercised only conditionally; that an enforceable contract was not concluded, and consequently 'that the quoted instruction should not have been given. The argument is foreclosed by the former decision. So far as evidence produced at the former-trial was concerned, the district court was authorized and expected, to proceed in accordance with the former opinion. Indeed, this court would have directed judgment for the plaintiff, but for the issue of waiver.
The defendant argues further that the rule of law stated in the instruction is unsound. Aside from the fact that it was made the law of this case by the former decision, the court is entirely satisfied with the rule.
The-plaintiff was entitled to judgment, unless the defense of waiver were established. That issue was submitted to the jury under proper instructions, and no complaint is made because it was determined in the plaintiff’s favor. Some minor assignments of error relate to matters so clearly without prejudicial effect that they need not be discussed.
The appeal is substantially an indirect method of obtaining a rehearing respecting the former decision. A formal petition to that end was denied on March 12, 1915, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing the defendant presents certain.new facts which he claims to be sufficient, if established, to warrant a judgment in his favor. The facts were all known to the defendant at the time the action was commenced, and were not presented to the district court by pleading, evidence, or other means. It is now too.late to shift the grounds of defense.
In a supplemental petition for a rehearing the defendant suggests that this court shifted the ground of the plaintiff’s action from an oral contract to a written contract, deducible from the terms of a deed, a contract, and a will construed together. While it is true the petition pleaded an oral contract, two of the written instruments were set out as exhibits, and the other was referred to and was introduced in evidence, so that when the court came to render judgment the actual transaction was clearly before it. The principal question argued in the briefs filed in this court was whether or not the written instruments should be construed together, and if so, their legal effect.
The defendant was afforded full opportunity for a fair trial, and should have disclosed to the district court, by way of answer, his true situation. He can not be permitted to take a sporting chance at beating the plaintiff at her own game, sit by until the case has been finally disposed of by this court, and then spring a defense which would necessitate amending the answer and beginning all over again.
Concerning the merits of the proposed defense, it may be observed that the written instruments did not disclose a sale of the farm conditioned upon the gift of personal property to the defendant by will. The defendant’s own testimony indicated that no such condition was attached to the sale.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
This is the second appeal in this case. (Ross v. Odd Fellows Lodge, 94 Kan. 528, 146 Pac. 1003.)
• The contract which is the basis of this action was in part get out in the former opinion. That contract, so far as it is material to the present controversy, reads:
“Witnesseth, That, Whereas, The party of the first part is the owner in fee simple of Lot Twenty-four (24) in Block Fifty-four (54) in the city of Wellington, Kansas, and the party of the second part is the owner in fee simple of Lot Twenty-three (23) in said Block Fifty-four in the city of Wellington, Kansas, and
“Whereas, The party of the first part and’ the party of the second part desire and purpose to erect and construct upon the lots herein-before described a two-story rock stone cement building, 80 feet long and 50 feet wide in accordance with plans and specifications adopted and agreed upon by each of the respective parties hereto;
“Now, therefore, in consideration of the premises, it is hereby agreed and understood by and on behalf of each of the parties hereto that one-half of all the expense of every kind and character which is to be or will be incurred in the erection and construction of said building is to be equally borne and paid by the respective parties hereto; that is to say, each of said parties is to pay one-half thereof according to a correct and itemized account of said expenditures, which is to be kept by the parties to this agreement.”
The trial was by the court without a jury, and no special findings of fact were made. A general finding was made in favor of the defendant, and judgment was rendered in its favor. The plaintiff appeals.
1. The court held that the burden of proof was on the plaintiff. Complaint is made of that ruling. The petition 'set out a number of items of expense incurred by the plaintiff in the erection of the building provided for in the contract. The petition was not verified. The answer consisted of a general denial and affirmative allegations that a settlement had been made. There was nothing to show that either party was denied the right to introduce any evidence to establish his contentions. Under these circumstances, it was not reversible error for the trial court to rule that the burden of proof was on the plaintiff. (Hennig v. Gas. Co., 100 Kan. 255, 164 Pac. 297; In re Holloway’s Estate, 100 Kan. 368, 164 Pac. 298.)
. 2. The plaintiff argues a number of other propositions, all of which are that certain facts were or were not established by the evidence. 'Four days were used in the introduction of evidence. The trial court heard that evidence and on it the finding was made. That finding is conclusive in this court unless it is shown that the finding was. not supported by evidence. That has not been done. The evidence, as abstracted, does not disclose that the trial court reached a wrong conclusion as to any fact that was in controversy on the trial. The plaintiff must show that the court made a mistake, and must also show that the mistake was prejudicial. (Civ. Code, § 581, Gen. Stat. 1915, § 7485; Hamilton v. Railway Co., 95 Kan. 353, 359, 148 Pac. 648; Andrews v. Railroad Co., 99 Kan. 347, 350, 161 Pac. 600.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by George Rains, Charles Moore, and Don H. Elleman as administrator of the estate of Charles Rains, deceased, against Herman Weiler, Charles Sheets and Fred Gerster to obtain a partnership, accounting. Findings of fact and conclusions of law were made by a referee, upon whose report the court rendered judgment against the defendants in favor of plaintiff George Rains. Weiler appeals.
The partnership was known as Rains, Moore & Company, and for a little over a year and a half operated a mine called the Red Lion Mine, in Joplin, Mo. George and Charles Rains each had a three-twentieths interest in the partnership; Moore four-tenths; and the defendants each one-tenth. The Red-Lion mill was destroyed by fire, and thereafter no mining operations were carried on by the firm. At the end of the. partnership business there was a deficit, of which each of the plaintiffs paid his share in proportion to his interest, leaving a balance which was met by George Rains, and the recovery of which is sought from the defendants. There is a dispute as to the amount due from the defendants on the ground that some of the items for which Rains claims credit were not properly chargeable against the partnership. The management of the enterprise was left to Géorge Rains, Moore kept the books of the company and Sheets worked as a laborer in the mine. The business was financed by Rains and Moore, who also borrowed money at the bank upon their own notes when the partnership was in need of further funds. The other members contributed neither time nor money for the benefit of the partnership, but did accept profits arising from the conduct of the enterprise. During the continuance of the business dividends in the sum of $6500 were paid to the partners. '
Among the items disputed by the defendants were the sum of $2125 paid out as salary to Rains as manager, $510 paid to Moore as bookkeeper, and $1521 paid to Sheets in wages for ordinary labor. While there was testimony that Rains told Weiler that he would charge the firm $25 per week for his services as manager, the referee found that what was said did not amount to an express agreement, but that the evidence did show an implied agreement to pay him the reasonable value of his services. Testimony was introduced over the objection of the defendants to the effect that there was a custom among miners in that district that .where some of the partners in a project of this character devote their time and effort to the conduct of the business while others take no part in it, the ones performing the services are to be paid therefor.
Another item complained of was the expenditure of $135.40 by Rains in prospecting the Ward mine, which was located near the Red Lion. After the Red Lion mill was burned and was not rebuilt the chance to work the Ward mine was offered to Rains. Thinking that he might thereby make a profit for the partnership, Rains undertook to operate this mine, but after testing it for a few days he abandoned the scheme, seeing that it would not pay. Out of this venture $46.54 was realized, making a net loss of $88.86.
The items mentioned were all held by the court to be properly chargeable to the partnership.
- The principal controversy on this appeal arises over the allowance of compensation to the partners Rains, Moore and Sheets for their services rendered in the partnership business. Defendant contends that these partners were not entitled tc compensation from other members of the firm because there was- no special agreement to tha,t effect. The general rule is that in the absence of an agreement a partner is not entitled to compensation for his services while employed in the partnership- business. If there is no agreement to the contrary it is the duty of each''partner to contribute his time, skill and ability so far as the same is reasonably necessary to the conduct of the business without other compensation than a share of the profits. (Insley v. Shire, 54 Kan. 793, 39 Pac. 713; Painter v. Hines, 86 Kan. 832, 122 Pac. 1036.) This rule was recognized by the referee and the trial court; but it was held that the acts and the conduct of the partners and the circumstances surrounding them implied an agreement that compensation was to be paid. In his well-reasoned opinion the referee states that such a contract may be express or it may be implied from the conduct of the parties and the circumstances of the particular partnership, and he found, that “the evidence conclusively shows that it was the understanding between all the partners that Mr. Rains was to be the manager of the business of the Red Lion Mining Company . . . that he was to be the responsible partner and there was no expectation that the other partners would devote their time to the business.” Apart from this consideration it w*as found from the evidence that there was a custom or usage in that mining district to pay for the services of the managing partner, and it follows that such usage entered into and became a part of the partnership agreement. Defendant appears to contend that a partner is not entitled to compensation for services rendered unless there is an express agreement to that effect, and there are authorities that go to that extent. (Note, 17 L. R. A., n. s., 385.) Parties may be as firmly bound by implied contracts as by those expressed in formal language. In some- cases parties arrive at agreements by words, either oral or written; and in other cases they arrive at an agreement by acts and conduct, showing a mutual intention to contract, and from which the law implies a contract. (6 R. C. L. 587.)
In 1 Addison on Contracts, 8th ed., p. 54, it is said:
“The intention of the parties, to any particular transaction may, however, be gathered from their acts and deeds, in connection with the surrounding circumstances, as well as from their words; and the law therefore implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words or through the medium of written memorials.”
A case closely in point with this one is Emerson v. Durand, Ex’r, etc., and others, 64 Wis; 111. There two persons engaged in the business of manufacturing linseed oil, but they made no express agreement relating to the management and control of the business. From the beginning Emerson had the control and management of the business in every detail. He superintended the construction of the mill and the purchasing of machinery and also superintended the making of additions and improvements. During the ten years that the business was conducted Emerson gave his entire time and attention to the business, while Durand occasionally visited the mill and made some suggestions as to the work, but was occupying a responsible position in another city,, where he spent most of his time, The labor and care of operating the mill were performed by Emerson; he hired men and paid them, bought flaxseed, and looked after the sale of the products of the mill as well as the finances of the business. The rule that one partner can not ordinarily charge another partner for his services rendered in the partnership business unless there is an agreement to that effect was duly recognized, but the court stated that “it has its exceptions, founded in wisdom and experience. Where it can be fairly and justly implied from the course of dealing between the partners, or from circumstances of equivalent force, that one partner is to be compensated for h'is services, his claim will be sustained.” (p. 118.) Applying that doctrine to the facts of the case the court remarked:
“When these facts, and others of a like tendency, are considered, they afford, to our minds, sufficient ground for implying a contract to compensate the plaintiff for his services in the management of the business. It is unreasonable to suppose the parties intended or understood that the plaintiff would give his entire time, attention, skill, and ability to the promotion of the common enterprise, while Mr. Durand, working for an insurance company on a large salary, should really contribute neither time nor attention nor labor, and that both should stand upon the same ground as to profits, and the plaintiff be paid nothing for his services. But, without dwelling longer upon the evidence bearing upon this point, we conclude by saying that a contract to pay for services rendered may be as fairly and incontrovertibly established by the acts and conduct of the parties, in connection with surrounding circumstances, as by words. Such a contract, we think, may reasonably be implied in this ease.”
(p. 120.)
So here the plaintiff was an active partner who organized the business and advanced money to start it. He was made general manager and gave his entire time to the management of the business. During the continuance of the business the plaintiff performed this unusual service, while the defendant was engaged in another line of business and gave no time to the partnership business. There was testimony of statements by defendant that he had left the management of the business to the plaintiff, and that'whatever plaintiff did was satisfactory to him. A case where an active and managing partner devotes his whole time and attention to a partnership business at the instance of other partners, who are attending to their individual business and giving no time or attention to the business of the firm, presents unusual conditions which take the case out of the general rule as to compensation and warrants the implication of an agreement to pay compensation. (Lewis v. Moffett, 11 Ill. 392; Levi v. Karrick, 13 Iowa, 344; Morris v. Griffin, 83 Iowa, 327; Hoag v. Alderman, 184. Mass. 217; Cramer v. Bachmann, 68 Mo. 310; Bradford v. Kimberly, 3 Johns Ch. [N. Y.] 431; Caldwell v. Leiber, 7 Paige’s Ch. [N. Y.] 483; Mann v. Flanagan, 9 Ore. 425; Hooker v. Williamson, 60 Tex. 524; Sheridan v. Healy, 15 Chi. Leg. News, 104; Note (subhead Implied Contracts), 17 L. R. A., n. s., 412.) The same is true as to Moore, who was employed by the manager to keep the books of the firm, and certainly there can be no doubt of the right ,of Sheets to payment for common labor performed by him in and about the mine under an agreement with the manager.
Complaint is made of the introduction of evidence that a custom or usage existed in the mining district to the effect that partners who devote their time to managing a mine, where other partners do not give the business any time or attention, are given compensation for their services. The objections to its admission were that it was not pleaded, and was not rebuttal, and further, that it was not shown that the defendant had knowledge of the same. In the matter of pleading, the plaintiffs asked for an accounting of the partnership, and the answer of the defendant was in effect a general denial in which no particular item of the account was challenged. If defendant had answered that there was no liability for sérvices, because of the absence of an agreement, the plaintiffs could have set up the prevailing custom which entered into the partnership arrangement. As the pleadings stood the plaintiffs were entitled to show the existence of a custom. The custom must, of course, be general and uniform, and can not be received in-evidence if it is contrary to law or to reason. (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444; Clark v. Allamann, 71 Kan. 206, 80 Pac. 571.) Nor is it admissible where it appears that the parties did not contract with reference to the custom. (Lewis v. Metcalf, 53 Kan. 219, 36 Pac. 346.) Here the custom or usage appears to have been general, uniform and well known in the district in which all the parties resided. As said in Smythe v. Parsons, supra, "parties are always presumed to contract with reference to a uniform and well-settled custom or usage pertaining to the matters concerning which they make the contract, where such custom or usage is not in opposition to well-settled principles of law, nor unreasonable.” (p. 82.) The custom being general and well settled, the defendant is presumed to have known of it and to have contracted with reference to it. It is not opposed to law, and it can not be said to be unreasonable. It appears to accord with other testimony in the case; that is, the facts and circumstances were such as to show a mutual intention to pay for the exceptional services of the plaintiffs. The result must have been the same without proof of the custom, as an agreement to pay for the services would be implied by law from the acts and conduct of the parties. The usage appears to accord with the common understanding.
Nor is there anything substantial in the objection that it was not proper rebuttal evidence. The order in which proof is received is largely within the discretion of the trial court and it is not regarded as a matter of much consequence, especially where, as here, the case was tried without a jury. (McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822; Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259.)
Complaint is made of the action of the manager in borrowing money instead of making assessments on the partners, and this question was raised by an objection to the evidence. Where the managing partner acts in good faith he has the right to borrow money reasonably necessary to carry on the business of the firm instead of resorting to an assessment on the partners. Nothing appears to show bad faith in the action that was taken.
Objection is also made to- the allowance of the item of $88.86, the loss resulting from the operation of the Ward property for a few days. This was likewise within the scope of the' powers intrusted to the manager. After the Red Lion mill was burned and the proprietor would not rebuild it, attention was turned to th‘e Ward property, on which there was a mill, but a test of a few days demonstrated that it could not be profitably operated and the business was suspended. The good faith of the transaction can hardly be questioned. • ,
There was evidence to sustain the special findings of the referee and no material error is found in the record. Judgment affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
P. C. Lamb sued N. A. McKitrick before a justice of the peace upon a debt of about $100, and caused garnishment process to be served on J. C. Taylor. Taylor answered as garnishee, denying any liability to McKitrick. Lamb gave notice that he was dissatisfied with the answer, and a trial of the issue so presented resulted in a finding that Taylor owed McKitrick $150. Judgment was rendered against McKitrick, and Taylor was ordered to pay into court a sum sufficient to meet it. Payment was not made, and Lamb sued Taylor for the amount. Upon a trial of that action in the district court a demurrer to the plaintiff’s evidence was sustained and j udgtaent was rendered in favor of Taylor, from which Lamb appeals.
These facts were established: Taylor had about 1400 head of cattle which he desired to sell, and agreed with McKitrick, who was a cattle broker, to pay him a commission of twenty-five cents a head for his services in finding a buyer, upon cer tain conditions, to which reference will be made later. McKitrick produced a buyer who entered into a written contract with Taylor for the purchase of the cattle, giving his check for $6300 in part payment. Taylor sent a telegram inquiring whether the check was good and received an answer that it was.
He gave McKitrick two checks, one before the. garnishment, for $150, and the other after the garnishment, for $148, the latter being made payable some days later than its date. The $6300 check was not paid, and Taylor brought an action against its maker for breach of the contract to buy the cattle. If the arrangement between Taylor and McKitrick was the ordinary brokerage contract, under which the agent’s commission is earned as soon as he produces a buyer with whom the principal deals, Taylor became indebted to McKitrick when he entered into the contract for the sale of cattle, and the indebtedness was not affected by the failure of the buyer to perform his part of the agreement. (Hutton v. Stewart, 90. Kan. 602, 135 Pac. 681.) But Taylor testified that he had a specific understanding with McKitrick that the latter was to receive nothing unless the cattle were actually paid for. If that was the agreement it is clear that no commission was earned. The appellee contends that there was no evidence whatever to contradict Taylor’s version of the agreement between himself and McKitrick. The trial court obviously took that view, and sustained the demurrer upon the theory that there was no doubtful question of fact to be submitted to the jury. Whether this .view was correct is the principal matter to be determined.
1. The plaintiff, however, makes a preliminary contention that judgment should have been rendered in his favor irrespective of the evidence. In his answer as garnishee Taylor denied absolutely any liability, but the denial was followed by this question and reply:
“Question. What is the nature of that indebtedness, and when is the same due said defendant? Answer. Commission for selling cattle and paid him his commission.”
The finding of the justice of the peace that the garnishee was indebted to McKitrick did not amount to an adjudication. (Fitch v. Fire Insurance Co., 23 Kan. 366.) But the plaintiff argues, upon the authority of the case just cited, that the an swer of the garnishee in the original proceedings constitutes the defendant’s pleading in the present action, and binds him (by virtue of the language above quoted) to an admission that a commission had been earned, leaving open to inquiry only the question whether it had been paid. In the case referred to (p. 368) it is said that in the trial of the truth of a garnishee’s answer before a justice of. the peace no pleadings are required, their place being taken by the affidavit for garnishment, the answer of the garnishee, and the notice that the answer is unsatisfactory. But where a separate action is brought to enforce an order against the garnishee made by the justice of the peace, the proceeding is an independent one, governed by the ordinary rules of pleading, and the defendant is no more concluded by the documents filed in the justice court than by the order there made against him.
2. Upon a consideration of the entire record this court concurs in the view of the trial judge that there was no substantial evidence of any contract on the part of Taylor to pay McKitrick a commission, except upon the actual sale of the cattle and the receipt of the price. McKitrick’s testimony practically corroborated that of Taylor. His language was that Taylor agreed to pay him twenty-five cents a head if he sold the cattle. He said that Taylor did not want to pay him anything until the first shipment was made, but finally gave him the check for $150 and requested him not to present it for a day or two— “until he knew for sure or had a telegram from this check [referring to the one for $6300] that it would sure go through.” The giving of the checks to the agent did not necessarily indicate that the commission had been fully earned, but merely that Taylor had so much confidence in the deal being consummated that he was willing to take that step. The plaintiff testified that the day before the garnishment action was begun Taylor told him that if the $6300 check was good the cattle trade was made, in which case he would owe McKitrick another $150, having already given him a check for that amount. This testimony likewise was entirely consistent with the understanding that if there was no sale no commission had been earned.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin the sale of real estate on execution. An injunction was granted, and the defendant appeals.
On April 10, 1914, the then owner, Lydia E. Culp, conveyed the land to Lydia Culp by warranty deed. In November, 1914, Lydia E. Culp became an indorser on the promissory note of C. H. Culp to the German-American Bank. The note was given in renewal of a note of W. H. Imes to the bank. Imes was required to take up the paper, which he reduced to judgment against C. H. Culp and Lydia E. Culp. Execution was •issued and levied on the property. The answer alleged that C. H. Culp procured the acceptance of Lydia R. Culp as an indorser by representing that she owned the property and was financially responsible, and that Imes examined the record, found the record title to be as represented, and relied on the representation. There was evidence sustaining the allegations of the answer: It is argued that because Lydia Culp, the owner in fact, failed to-record her deed, she enabled C. H. Culp to hold out Lydia R. Culp as owner, and was estopped to deny that Lydia R. Culp was owner.
The statute relating to the recording of deeds contains the -following provision:
“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Gen. Stat. 1915, § 2070.)
• The statute has been interpreted many times by this court, and it is settled law that the statute applies to none bu,t purchasers and mortgagees in good faith and for a valuable consideration. It does not apply to judgment creditors or to execution purchasers. The lien of a judgment is upon land of the debtor, and not upon land of others. (Gen. Stat. 1915, § 7320.) A sheriff’s sale and deed vest in the purchaser the title of the person against whom the execution was issued,' and not the title of others. (Gen. Stat. 1915, § 7406.) In no case does a judgment lien attach to any interest other or greater than that possessed by the judgment debtor, and in all cases the equities of other persons will be protected. The creditor says this interpretation of the statute is wrong. It was first announced in 1864, in the case of Swarts and others v. Stees and Bryan & Hardcastle, 2 Kan. 236, and has been consistently adhered to ever since. For more than fifty years, since the court’s view of the statute was first promulgated, the legislature has been meeting, tor many years annually, and for the remainder of the time biennially. During that period no change has been made in the statute affecting its interpretation, and the court is satisfied that it correctly apprehended the legislature’s meaning.
The result of the foregoing is, the plaintiff owed no duty to the creditor on which to found an estoppel. The creditor was not permitted to rely on the record alone. He was obliged to ascertain the financial status of his debtor, and whose land he was selling. The plaintiff made no representations herself, and unless the representations of C. H. Culp were brought to her attention, she was under no obligation to assert ownership. As soon as she learned what was going on she took steps to protect her rights.
The judgment of the district court is affirmed. | [
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The opinion of the .court was delivered by '
MASON, J.:
The judgment against one of the defendants having been reversed {ante, p. 383), the plaintiff files a petition asking a rehearing or a modification of the decision rendered.
1. The plaintiff’s judgment against the Knights and Ladies of the Orient was based upon a verdict which implied findings that he had performed services for it as a medical-officer for which he was entitled to receive $1428.75; that he had received $100 in cash and $300 by being credited with the dues of himself and a relative, upon their beneficiary certificates, up to December 31, 1912; that it had been agreed by the Orient company that as such dues accrued thereafter they should likewise be charged against his claim for services; that at the date named the Industrial Insurance Company acquired all the assets of the Orient company and undertook to assume liability to the holders of its beneficiary certificates, but afterwards canceled the certificates carried by the plaintiff by reason of the nonpayment of dues. His recovery against the Orient company, apart from interest, was for $1327.75, being equal to the total amount of his original claim, less only the $100 cash payment. In other words he was allowed to recover from the Orient company the full amount he had paid it as dues — $300. This allowance was permissible according to the authorities, on the theory of a rescission of the contract of insurance (29 Cyc. 103, 104), and in effect amounts to a setting aside of the credit of $300 on his account for services. He maintains that so far as concerns this part of his claim, the liability of the Industrial company is primary — that it results from its own conduct, and not from its succeeding to the debts of the Orient company — that this part of his action is practically an independent one for damages, and therefore that he should be al-' lowed that much of a recovery against the Industrial company, regardless of whether or not it received any of the general fund of the Orient company.
We do not think the contention well founded. The cause of action against the Industrial company with respect to the $300, as shown by the petition, is based upon the refusal' of that company to pay his assessments out of funds applicable to that purpose which it had received from the Orient company. If the Industrial company had received from the Orient company no assets excepting money belonging to the mortuary and beneficiary funds, it' had nothing to apply to the plaintiff’s dues, and committed no wrong in canceling his certificates for nonpayment, for we do not understand that there is any contention that the Industrial company became liable to the plaintiff upon any agreement on its part to carry out the contracts of the Orient company. The plaintiff’s right’to recover against the Industrial company upon this part of his judgment against the Orient company, as well as upon the rest of it, depends upon whether there was a transfer of any funds other than those which were exempt from the demands of general creditors.
2. The jury found that about $3000 in money and about $5000 in securities were turned over by the Orient company to the Industrial company. In response to a question as to how much of the assets so transferred were beneficiary or mortuary funds and how much belonged to the general fund, if any, they answered: “Owing to the unbusinesslike manner in which the affairs of the order were conducted, it is impossible for us to say how these assets were distributed.” The plaintiff urges that in view of the latter finding, upon the principle that exempt property loses its character as such when it is so commingled with nonexempt property-that its identity can not be determined, all the assets transferred should be treated as a part of the general fund, or, at all events, that upon a further trial the burden of showing that none of it belonged to the beneficiary and reserve funds should be cast upon the defendant. It was shown that the Orient company maintained three funds; the beneficiary fund and the reserve fund, from which losses were to be paid; and the general fund, from which current expenses were to be met. It was not necessary that the precise amount in each at the time of the transfer should be ascertained. The question was as to the state of the general fund. One witness testified that it was entirely exhausted; another that it contained from $500 to $1000. The jury’s answer did not amount to a finding that they were unable to decide whether there was anything in that fund, and the finding was not aided by the general verdict, since no instructions were given relating to the matter. To establish liability on the part of the Industrial company, as a part of his case, we deem it incumbent on the plaintiff to show that it received assets from the Orient company other than the beneficiary and reserve funds. This does not imply that a prima facie case may not be made out by circumstantial evidence, or that the plaintiff is to be denied the benefit of the rule regarding the commingling of assets. Such matters must necessarily be determined by the trial court as they may arise.
3. The plaintiff criticises the statement in the original opinion that the arrangement between the two companies amounted to a “substantial merger,” as implying that the contract between them was valid. It was not so intended. What was meant was that the relation between the companies was Such that the Industrial company was liable for the indebtedness of the Orient company to the extent of any nonexempt assets it had received. ,The plaintiff argues that the contract was void and that the liability of the Industrial company is measured not only by the nonexempt assets it received at the time, but by the proportion of dues afterwards received from members of the Orient company which by the rules of that company would have been turned into its general fund. Whether or not the contract was in all respects valid, it was not controlled by the rule applied in Bankers’ Union v. Crawford, 67 Kan. 449. 73 Pac. 79, which turned largely on the incapacity of one fraternal beneficiary association to obligate itself for the payment of certificates issued by another. The Industrial company was a business corporation and not a fraternal beneficiary association. Assuming that the contract was invalid, if members of the Orient company saw fit to accept membership in the Industrial company and continue payments to it, we do not think that any part of the payments so made would necessarily be held liable for existing debts of the Orient company, however the matter might be affected by any special equities.
The petition for a rehearing or for a modification of the decision is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff sought to recover possession of a stock of merchandise which he had transferred to the defendant in exchange for real property. In his answer the defendant alleged fraud on the part of the plaintiff and set up damages as a counterclaim. Judgment was rendered in favor of the defendant for $6708.40. The plaintiff appeals.
An opinion on a different question in this case is found in Miller v. Thayer, 96 Kan. 278, 150 Pac. 537.
The plaintiff owned a stock of goods in Salina. The defendant owned real property in Elk county. They met at Severy and began negotiations for the exchange of these properties. The land was inspected by the plaintiff. In the exchange the land was valued at $17,000. The plaintiff represented to the defendant that the stock of goods was merchantable. That representation was false. The defendant believed that the representation was true and relied on it. The contract between the parties provided that the stock should be invoiced in the following manner:
“All of the merchandise at the original cost price thereof as shown by the cost-marks thereon. The fixtures to be priced at the original cost where they are uninjured and where injured in any way to be priced at the prices such fixtures are taken at in trades of this kind and not at low cash or auction prices.”
The inventory was to begin October 6, 1913. After the defendant inspected the land he and the plaintiff went to Salina, arriving there in the evening. They went to the store and the defendant looked at some of the goods. The defendant, not .being familiar with the handling of merchandise, was unable to determine the value of the stock. The plaintiff did not prevent the defendant from making an examination of the stock of goods. His examination was brief and he did not become acquainted with the stock nor with its condition. M. M. Robinson, a merchant of Severy, was employed to assist in invoicing the stock and to look after the defendant’s interest in connection therewith. Robinson was instructed as to the manner of making the invoice. The inventory was begun on October 6, 1913, and was completed in six days. The contract for the exchange of the properties was signed before the invoice was commenced, and the note and chattel mortgage were signed and delivered after the invoice was completed. The defendant did not discover that the stock of goods was not merchantable until the latter part of January, 1914. Litigation between these parties wás begun immediately thereafter. The stock invoiced $16,565.41. There were mortgages on the real property amounting to about $4600. A promissory note for $4942.11, secured by a chattel mortgage on the stock of goods, was given by the defendant to the plaintiff in part payment. This action was brought to recover the goods under that mortgage. At the time of the commencement of the action there was about $1000 due on the note. The remainder of the note had been paid out of the proceeds of sales made by the defendant out of the stock.
1. The plaintiff contends that the court erred in the admission of evidence. The evidence complained of was that which tended to show that the plaintiff had represented the stock as “all good, clean, merchantable goods.” The plaintiff argues that this evidence should not have been admitted for the reason that he did not prevent the defendant from making a thorough examination of the stock to satisfy himself as to its condition and quality; and for the further reason that the note and chattel mortgage were signed after the inventory had been completed and the stock had been seen by the defendant’s expert representative, M. M. Robinson.
Robinson was employed to see that the goods were marked at their correct original cost, and not to ascertain their condition. While the invoice was being taken Robinson did learn, to some extent, the character- and quality of the goods, but he did not communicate to the defendant what he had learned. The false representations were made before the contract for the exchange of property was signed, and before the invoice was begun. Under these circumstances it was proper to prove that the representations were false.
2. Plaintiff insists that the court committed error in rejecting evidence offered by him to prove that the land was not worth more than $8000. The plaintiff did not allege fraud or misrepresentation on the part of the defendant, and did not attempt to prove either. The evidence offered tended to prove that the valuation placed on the land was excessive. The plaintiff argues that because of the excessive valuation the defendant was not damaged by the false representation. The defendant is entitled to recover the difference between the real value of the stock of goods received by him and what the stock would have been worth if the representations made by the plaintiff had been true. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; McDanel v. Whalen, 91 Kan. 488, 138 Pac. 590; Epp v. Hinton, 91 Kan. 513, 516, 138 Pac. 576; Hinchey v. Starrett, 92 Kan. 661, 141 Pac. 173.)
3. The plaintiff complaihs of the instructions given by the court, and of the refusal of the court to give instructions requested by him. The reason given by the plaintiff for each of these contentions is the same as that given for his objection to the admission of evidence and for his complaint of the rejection of evidence. What has been said in this opinion and the authorities' that have been cited to show that the. plaintiff’s< complaint concerning the evidence is without foundation dispose of his complaint concerning the instructions.
4. The plaintiff urges that judgment should have been rendered in his favor on the special• findings of the jury. He argues that since the jury exonerated him from all charges of fraud in marking the goods, and found that he did nothing to prevent either Thayer or Robinson from making full and complete inspection of the stock, there was no substance left in the charge of fraud, and the plaintiff was entitled to judgment on the remainder of his note. The trouble with this argument is that the defendant’s answer charged that the plaintiff had represented the stock as merchantable and that this representation was false. The plaintiff’s argument does not meet this allegation of the answer, nor the findings of the jury. Under the findings judgment could not have been rightfully rendered in favor of the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding brought by the plaintiffs, as trustees of the African Methodist Episcopal Church of Salina, to compel the city authorities to grant them a permit to erect a church building on certain lots in the city of- Salina.
It is alleged in the alternative writ that on the 26th of July, 1917, plaintiffs presented to-the fire chief of the city, whose duty it is under the city ordinances to issue such permits, an application for a permit to erect a church building, and that without any cause on his part the application was denied. .
The defense is that the city of Salina, prior to the presentation by plaintiffs of any written application for a permit, had instituted proceedings to condemn the lot in question to public use for the purpose of widening a street. It appears that lot 38, in Bishop’s addition to the city of Salina, is located at the northeast corner of the intersection of Eleventh and Elm streets, and that Elm street west of Eleventh street is about thirty feet north of that portion of Elm street lying east of Eleventh. The city claims that by reason of the jog in Elm street at its intersection with Eleventh street considerable traffic congestion results, and that in order to relieve this condition and for the purpose of widening and extending Elm and Eleventh streets at their junction, the mayor and council passed an ordinance to condemn a triangular piece of land off of the southwest corner of the lot owned by the plaintiffs, and that no written application by plaintiffs for permission to erect their church building was presented until after the condemnation proceedings were commenced.
It is insisted, however, on the part of the plaintiffs that the city has not acted in good faith in attempting to appropriate the property for public use, and that the attempt to do so is an afterthought for the purpose of preventing the erection of plaintiffs’ church building at that particular place.
In a supplemental answer, the city alleges that the condemnation proceedings have been fully completed, and that on the 18th day of August, 1917, appraisers duly appointed by the city ascertained and assessed the value and damages caused by the appropriation and condemnation of the property in question, and ascertained the value of that part of plaintiffs’ lot taken by the condemnation proceedings at $900, and assessed the damages to the remaining portion of the lot at $200; that* thereafter the city, by ordinance, appropriated $1,100, in full payment of the value and damages sustained by the plaintiffs by the appropriation of their property.
It is therefore urged that, the condemnation proceedings having been completed and the land actually appropriated for public use, it is now too late for plaintiffs to maintain their action, and that the allowance of the writ would serve no useful purpose.
It appears from a supplemental abstract of the defendants that at a meeting of the city council held on February 5, 1917, a petition signed by more than 85 residents and property owners was presented, asking the city to condemn for street purposes part of the lot in question. The petition was referred to a committee, and at the same meeting the report was adopted. It further appears that at a meeting of the council on March 19 a motion was adopted instructing the fire chief not to issue a permit to the plaintiffs for the erection of the church building; that on May 14, 1917, ordinance No. 2,037 was passed providing for the condemnation and appropriation of the property. At a meeting of the council on June 21 an ordinance was passed repealing ordinance'No. 2,037, and ordinance No. 2,056 was passed which provided for the condemnation of the same property. At the same meeting an ordinance was passed establishing and creating a benefit district and fixing the boundaries thereof. The purpose in repealing the first ordinance and adopting the new ordinances was to comply with an act of the legislature of 1917 (Laws 1917, ch.' 108), making applicable to cities of the second class having a population of more than 10,000, certain provisions of section 1249 of General Statutes of 1915, the amendment having taken effect on the publication of the Session Laws of 1917, which was after the enactment of the first ordinance.
There is no showing in the record of bad faith on the part of the city, and the court must assume that the action of the city council was in good faith.
“It requires no argument and no reference to precedent' to show that this court can not sit in judgment upon the motives actuating the municipal authorities in pursuing a course which the legislature expressly authorized them to take.” (Burlingame v. Thompson, 74 Kan. 393, 394, 86 Pac. 449.)
The plaintiffs could acquire no vested rights to a permit because the original ordinance was repealed and new ordinances enacted. The whole proceedings' for the purpose of appropriating the property must be considered as an entirety. The city had already determined to appropriate the property for public use before the plaintiffs applied for a permit, and this of itself would be a sufficient defense to the action. Besides, the condemnation proceedings have been completed, the property has been appropriated, payment of the damages to the plaintiffs has been provided for, and it would be a useless proceeding to issue the writ, even if plaintiffs were shown to have been originally entitled to it, which has not been made to appear. The remedy lies largely in the discretion of the court, and the principle is well settled that the writ will not issue when it would be fruitless or unavailing. (Rice v. County Board of Canvassers, 50 Kan. 149, 32 Pac. 134; Rice v. Robson, 83 Kan. 252, 256, 111 Pac. 186; School District v. Stanton County, 99 Kan. 763, 764, 162 Pac. 1165.)
An effort is made to question the validity of the condemnation proceedings on the theory that the title of the ordinance is insufficient. The specific objection urged against the title is that it conflicts with section 16 of article 2 of the constitution. The provision of the constitution referred to relates wholly to acts of the legislature, but similar provisions of the statute apply to city ordinances. (Gen. Stat. 1915, § 1680.) (City of Winfield v. Hackney, 87 Kan. 858, 126 Pac. 1088.)
The title of the ordinance reads:
“An ordinance providing for the condemnation and appropriation of certain lots and pieces of ground in the city of Salina, for the purpose of widening and extending Elm street and Eleventh street, in said city and providing for the appointment of appraisers therefor.”
We have no hesitation in saying that the title is sufficient and that it does not embrace two subjects. There is no force in the contention that the ordinance is void because it describes the property differently from that contained in the deed under which the plaintiffs claim. There can be no question as to the identity of the property sought to be taken and that formerly owned by the plaintiffs.
The writ will be denied. | [
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The opinion, of the court was delivered by
MASON J.:
In a city of the third class, pavement was laid on the main street for a distance of two blocks, and also on the cross street that divided them for half a block on each side of the intersection. The owners of two comer lots, which front on the main street, sought injunction against the collection of the assessments made against their property, on the ground that they were excessive by reason of the use of an unjust and arbitrary rule, without an attempt in good faith to follow the statutory method of appraisement. They were denied relief, and appeal.
1. The statute required that the cost' of the paving should be charged against the abutting property to the middle of the block according to the value of each lot as fixed by three appraisers appointed by the mayor. (Gen. Stat. 1915, § 1974.) It was shown that there had been a general understanding that the cost of the paving on the cross street should be charged against the half of the half blocks abutting thereon in this proportion: the first 40 feet to bear 90 per cent of the expense, the next 35 feet 4 per cent, the next 30 feet 3 per cent, the next 30 feet 2 per cent, and the remaining 30 feet 1 per cent. A committee appointed to apportion the cost of this part of the pavement made a report, which was adopted, distributing it according to that plan. At the same time the cost of the paving on the main street was charged against the abutting property according to the front foot. The assessment here complained of however was not based on these proceedings, but on the report of a new set of appraisers, made in apparent conformity with the law. The plaintiffs contend that while the assessment purports to be based upon an appraisement made in accordance with the statute, the appraisers did not in fact exercise their independent judgment in determining the value of the several lots, but merely assigned such valuations to each as would result in charging to it the same amount that had been arrived at by the first method employed, which was confessedly erroneous. They insist that this is conclusively shown by the fact that each tract affected by the ■cross street paving is charged with practically the same burden it would have borne if the original plan had been followed to the end, the difference in no instance amounting to as much as a dollar, the correspondence being toó close to be accounted for as a mere coincidence. Under the first assessment the plaintiffs’ property was probably charged with more than a due share of the expense of paving the cross street, but it presumably was charged with less than its due share of the expense of paving the main street, for the corner lots were of course more valuable than the others, and the frontage rule effected a discrimination in their favor. The second assessment would not necessarily be vitiated by proof that in making it the appraisers were consciously or unconsciously influenced to some extent by a knowledge of the result of the first one. If the figures they adopted represented their actual judgment as to the Value of the various lots, formed in the light of all the information they had, their work must stand. (Finney County v. Bullard, [77 Kan. 349, 94 Pac. 129] 16 L. R. A., n. s., 807 and Note.) Whether this was the case was a question of fact for the determination of the trial court, which had much fuller opportunity to form a just opinion on the subject than can be afforded here. The correspondence between the two sets of figures, arrived at by different methods, was merely one circumstance to be weighed in passing upon the good faith of the officials having the matter in charge. Another was that the appraisers had adopted a set of figures shown by a memorandum which had been handed them by the mayor, with the suggestion that they might make use of it, although it was not binding upon them. Each of the appraisers was upon the stand and testified in substance that the amounts set out in the report represented his fair and honest judgment as to the value of the property. We find no ground for overturning the decision of the trial court that the assessment was made in good faith, and that being the case it is not open to attack by injunction, however excessive or unequal it may be as a result of the exercise of bad judgment.
2. Complaint is made of the rejection of evidence concerning the proceedings prior to the assessment. The petition showed a reliance upon the proposition that too large a proportion of the cost of the improvement had been charged against the property of the plaintiffs. No irregularities in the antecedent proceedings were set out, and the evidence referred to was properly rejected as not within the pleadings.
3. A further complaint is made on the ground that under the statute cited the cost of paving is to be met by the issuance of bonds, and that no provision has been made for them. The petition contains an allegation that the city has paid the contractor for the improvement, but the fact seems to be that warrants have been issued to him, upon which some payments have been made out of the proceeds of the special assessment. So long as the plaintiffs are not required to pay any larger sum than would be required to meet the bonds if they had been issued, and are allowed the same time of payment as though that were, the case, they are not entitled to an injunction against the assessment because warrants instead of bonds were given to the contractor.
The judgment is affirmed. | [
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The opinión of the court was delivered by
Burch, J.:
The action was one by the railway company to enjoin destruction of a twelve-inch dam in the Cottonwood river erected to enable the railway company to secure water from the river. A temporary injunction was granted. The answer and cross-petition of the defendant, a mill owner having mills operated by water power both above and below the dam, prayed for an injunction against maintenance of the dam. At the time the answer was filed, and at the time of the trial, the cause of the litigation — dearth of water resulting from excessive drought — had ceased to exist. The court made find ings of fact favorable to the plaintiff, but, because normal conditions had been restored, dissolved the temporary injunction and dismissed the action. The defendant appeals.
The controversy has become moot. The purpose of the district court was to dispose of the case in such a way that the judgment would not be res judicata against either party. Consequently this court will merely indicate, without elaboration, its views respecting salient matters.
The railway company as a riparian owner had the right to make reasonable use of the water of the stream for the purpose of supplying its engines and operating its railroad. Reasonable use means such use as is consistent with the equal rights of other riparian owners. (Clark v. Allaman, 71 Kan. 206, 80 Pac. 571.) In the case cited, abstraction of water from a stream for irrigation purposes was sanctioned. Abstraction of water for railroad purposes by a railway company which is a riparian owner is merely another use, the propriety of which can not be questioned so long as the rule of fairness and equality between' owner and owner is observed.
When water is abundant there is no occasion to dispute about its use. Only when the flow becomes scanty does necessity for adjustment arise. In this case matters were brought to a crisis by an unprecedented drought, which the court felt impelled to classify as an act of God. The court found specifically that the dam did not back water far enough to interfere with the operation of the defendant’s upstream mill, and found specifically that'the quantity of water taken by the plaintiff did not in any appreciable degree affect the operation of the defendant’s downstream mill. These were questions of fact, the solution of which depended on the estimate'placed by the court on the evidence, which was conflicting to the point of contradiction. It is not necessary to review the evidence. It has been examined, and that upon which the court must have relied is abundantly sufficient to sustain the findings. Beyond ascertaining this fact, this court on appeal has no function to perform with respect to the evidence.
Granting or refusing an injunction is a subject of equitable cognizance over which the district court has a large discretion, depending on all the facts and circumstances. Since the cause of the litigation ceased to exist soon after the suit was commenced, and can not again come into existence except under circumstances neither threatening nor reasonably to be anticipated, it can not be said that the court abused its discretion in allowing each party to pursue his normal course of conduct under the restored normal condition, without judicial restraint.
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The opinion of the court was delivered by
Mason, J.:
The state live-stock commissioner issued to M. P. Knudson three certificates stating that cattle belonging to him had been condemned as being infected with tuberculosis. and disposed of in accordance with the statute (Gen. Stat. 1915, §§ 11083-11086), and ordering the payment by Cloud county of half their appraised value, and in the case of four animals, which a post-mortem examination showed not to have been infected, of the whole value. Knudson assigned the certificates to the Farmers and Merchants Bank of Concordia. The bank presented them -for payment, and on this being refused brought an action upon them against the county. A verdict was directed in favor of the plaintiff, on which judgment was rendered. The defendant appeals.
1. A reversal is asked, principally on the ground that the defendant was not allowed to introduce evidence tending to show that irregularities were committed with respect to the condemnation of the cattle, that the appraisement was excessive, and that the cattle were brought into the state under such circumstances that compensation to the owner is forbidden by the statute. It has already been determined in a mandamus for the payment of a similar certificate (and the rule is necessarily the same in an action like the present) that the certificate given by the live-stock commissioner is conclusive upon the county in the absence of fraud, collusion or similar misconduct. (Cory v. Graybill, 96 Kan. 20, 149 Pac. 417.)
2. The defendant maintains that the evidence introduced and offered was sufficient to take to the jury the question of fraud in the appraisement. Its evidence on this point was mainly to the effect that the cattle were appraised at too high a figure. This had no tendency to show fraud. (The State v. White, 82 Kan. 777, 109 Pac. 402.) There was also testimony, however, that the appraisers, under the advice of the assistant live-stock commissioner, valued the cattle as if they were not diseased. If an appraisement were shown to have been made under a radical mistake of law as to the proper basis of valuation, it might be set aside on the ground that it did not represent the judgment of the appraisers as to the matter com mitted to them. (See, in this connection, 2 Page and Jones on Taxation by Assessment, § 672; 26 Cyc. 162; 28 Cyc. 1168; Notes, 7 L. R. A., n. s., 525, 98 Am. St. Rep. 871; The State, ex rel. Dalrymple, v. Stockwell, 7 Kan. 103.) “But the statute does not contemplate that a condemned animal shall necessarily be appraised at the value of the carcass because diseased and because it is to be slaughtered at once. If this were true, the alternative given the owner by section 23 [Gen. Stat. 1915, § 11101] would amount to nothing.” (Cory v. Graybill, 96 Kan. 20, 29.) The law manifestly intends that the cattle condemned as tubercular, upon which disease has produced no effects visible to ordinary observation, shall be appraised at their sound value. The policy is that an animal which, after expert examination, is believed to be infected shall be killed, the loss to be borne wholly by the public if the belief proves ill-founded, and otherwise to be shared equally with the owner. To make a deduction from the apparent value of the suspected animal because of the suspicion would defeat the purpose of the statute.
3. The defendant called the live-stock commissioner as a witness, and asked him whether he had made any inquiry as to the origin, of the cattle or as to how long they had been in the state. An objection to questions of this character was sustained. The defendant then offered to prove that the cattle were brought into the state in violation of the rules of the live-stock sanitary commissioner, and the offer was rejected. In the defendant’s brief it is argued that error was committed in these rulings because the evidence, if admitted, would have had a tendency to show that the comxhissioner made no investigation as to the origin of the cattle, and neither knew nor cared where they came from, and that such conduct tended to prove fraud and collusion. From the abstract it appears that no offer in this connection was made at the trial beyond what has just been stated — that no explicit suggestion of a want of good faith on the part of the commissioner was made in connection with the offer. And upon the hearing of the motion for a new trial there was no showing that in fact the commissioner had not investigated the origin of the cattle. Therefore no ruling in connection with this matter is reviewable. (Civ. Code, § 307.)
4. These considerations practically dispose of the case, and only brief mention need be made of the complaints of specific rulings. The petition is criticised for its failure to allege facts showing that the cattle were not within any of the classes fori which, under the statute, no compensation is to be made. Inasmuch as the certificates were sufficient to make a prima facie case, and were only assailable for fraud or its equivalent, it was not necessary for the plaintiff to plead the nonexistence of the exceptional conditions that would have prevented liability on the part of the county. Objections are made to the competency of evidence introduced by the plaintiffs showing the disposition of the cattle. As the certificates were sufficient in themselves until successfully attacked, the introduction of other evidence by the plaintiff, although unnecessary, could not have been prejudicial. Complaint is made that the order to pay was addressed to -the county instead of to the board of county commissioners, but the difference in the form of expression is not important. The official title of the county as a litigant is “The board of county commissioners” (Gen. Stat. 1915, § 2532), but doubtless any apt designation would serve the same purpose.
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding in mandamus. The plaintiff seeks to compel the defendant to set aside an order granting a new trial.
On May 17, 1917, by the verdict of a jury, J. B. Little was found guilty of an assault with a deadly weapon. On the same day Little filed a motion for a new'trial. That motibn was overruled on June 4, 1917, and Little was then sentenced to confinement and hard labor in the state penitentiary for a period not to exceed five years. Immediately after Little was sentenced, and on the same day, notice of appeal was served on the clerk of the district court,and on-the county attorney. An appeal bond was given, approved, and filed on June 4, 1917, and on July 9, 1917, the appeal was filed in this court. On August 30, 1917, Little filed a motion for a rehearing of the motion for a new trial. Evidence on the motion for a rehearing was heard on August 30, 1917, and on September 1, 1917, the motion for rehearing was' sustáined. The judgment was then set aside, and a new trial was ordered. Bond for Little’s appearance at the next term of the district court was fixed at $2,000.
After the entry of the judgment against Little, the court adjourned to meet “on call.” This occurred seven times, the last time being on August 2, 1917.
1. The state’s first contention is that when Little appealed to the supreme court the district court lost all jurisdiction to change, alter or modify the judgment that had been rendered. Sheahan v. Guaranty Co., 99 Kan. 704, 168 Pac. 172, is cited in support of this contention. There this language is found:
“While a trial court never loses jurisdiction to correct or amend its record to make it speak the truth and to chronicle the history of a .cause tried before it, yet when an appeal is taken from its decision it has no jurisdiction to permit any amendment to the pleadings or to alter the real situation of the parties as it existed at the time its judgment was rendered.” (Syl. ¶ 3.)
In Railway Co. v. Berry, 79 Kan. 19, 98 Pac. 204, this court said:
“That the court had full power during the term at which it was rendered to vacate the judgment, if it considered an injustice had been done, is well established by the decisions of this and other courts.” (p. 20.)
That principle is supported by Hemme v. School District, 30 Kan. 377, 381; The State v. Hughes, 35 Kan. 626, 12 Pac. 28; The State, ex rel., v. Sowders, 42 Kan. 312, 22 Pac. 425; Cornell University v. Parkinson, 59 Kan. 365, 371, 53 Pac. 138; In re Beck, 63 Kan. 57, 60, 64 Pac. 971; Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284; The State v. Meyer, 86 Kan. 793, 796, 122 Pac. 101.
After the term of court at which a judgment is rendered has expired, the court’s power is limited to correcting the journal entry of judgment so as to make it,speak the truth. (Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284; Lewis v. Woodrum, 76 Kan. 384, 387, 92 Pac. 306; Vail v. School District, 86 Kan. 808, 122 Pac. 885; Schultz v. Stiner, 97 Kan. 555, 155 Pac. 1073; The State, ex rel., v. City of Stafford, 99 Kan. 265, 269, 161 Pac. 657; Sheahan v. Guaranty Co., 99 Kan. 704, 163 Pac. 172; Welling v. Welling, 100 Kan. 139, 163 Pac. 635.)
In 3 C. J. 1265 this language is used:
“It is a rule of general application, in the absence of a statute to the contrary, that when an appeal or writ of error is perfected all power of the court appealed from to change its judgment or modify its orders ceases to exist until the cause or some part of it is remanded by the appellate court, subject to the rule that during the trial term that court has 'the right to set aside, vacate or modify its judgment, and of this power it is not divested by the appeal.”
The same rule is found in 2 Cyc. 975, 976, and is supported by Legere v. State, 111 Tenn. 368; Minks v. The B. & O. Southwestern R. Co., 184 Ill. App. 369; Blackburn v. Knight, 81 Tex. 326; The Huber Mfg. Co. v. Sweny et al., 57 Ohio St. 169; Vernier v. Knauth, 7 App. Div. (N. Y.) 57, 64.
In Sheahan v. Guaranty Co., 99 Kan. 704, 163 Pac. 172, the change made was in the pleadings, and was made for the purpose of altering the situation of the parties on appeal. In that case judgment was rendered on November 11, 1915. The petition was amended on October 14, 1916, after the term at which the judgment had been rendered had expired. The rule that an appeal does not deprive a trial court of jurisdiction to set aside, vacate or modify its judgment during the term at which the judgment has been rendered is in harmony with the repeated declarations of this court concerning the power of district courts over their judgments during the term, and the rule is not in conflict with Sheahan v. Guaranty Co., supra.
It was not error for the trial court to set aside the judgment and grant a new trial.
2. The state contends that the district court did not have power to adjourn and meet again “on call.” The state argues that when an adjournment is taken, the day to which the court is adjourned must be stated, or that if no such day is named, notice must be published the same as for a special term.
What was the effect of the adjournment of the court to meet “op call”? It was not an adjournment sine die, and it did not end the existence of the term.' The adjournment contemplated that the court would be continuously in session, and that when there was business to transact, the court would transact that business. On such an adjournment, all interested parties knew that the court would transact any business whenever presented, and such parties should govern themselves accordingly, just the same as those living in counties where courts are continuously in session. This question is disposed of by The State v. Hargis, 84 Kan. 150, 113 Pac. 401, where this court said:
“A term of the district court, having been regularly convened, continues until there is a final adjournment of the court sine die or the term ends by the expiration of the period fixed by the statute.” (Syl. ¶-1.)
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The opinion of the court was delivered by.
Burch, J.:
The defendant was convicted of selling personal property covered by chattel mortgage, and appeals'.
Testimony given at the preliminary examination by a witness who was not present at the trial was read to the jury. It is said the testimony was improperly admitted because the state did not show that the witness was beyond the jurisdiction of the court and did not show reasonable diligence to procure the attendance of the witness. It was sufficient for the state to prove that the whereabouts of the witness was unknown and could not be ascertained after diligent search. (The State v. Stewart, 85 Kan. 404, 116 Pac. 489; The State v. Chadwell, 94 Kan. 302, 146 Pac. 420.) The implied finding of the trial court that due diligence had been used to discover and.produce the witness is approved.
Complaint is made that evidence was rejected of statements material to the case made by one who, it is claimed, was the agent of the mortgagee. The evidence was properly excluded because there was no proof of agency.
The defendant claims that the prosecution was barred by the two-year statute of limitations. The subject was presented to the jury by very full and clear instructions. The several questions of fact involved depended for their solution upon the credence and weight to be given to oral testimony. Probably little of the defendant’s evidence was believed, and if so, the verdict of the jury was well sustained.
The statute under which the defendant was convicted provides that any mortgagor of personal property who shall sell or dispose of such property without written consent of the mortgagee shall be guilty of larceny and shall be punished for petit larceny or for grand larceny according to the value of the property. (Gen. Stat. 1915, § 6513.) The defendant claims immunity from punishment because the bill of sale by which he disposed of the property recited thht it was sold subject to the mortgage. The chattel mortgage contained no stipulation that the legal title to the property should not, vest in the mortgagee. (Gen. Stat. 1915, § 6501.) Consequently, any sale the mortgagor might make would necessarily be subject to the mortgage. The statute contains no exemption from liability such as the defendant proposes, and the court can not interpolate one. If such an exemption were allowed, a sale subject to the mortgage to a confederate who dissipated the property, as occurred in this case, would make waste paper of the statute.
The defendant produced testimony, which the court admitted, that oral consent of the mortgagee to sell the property was given at the time the mortgage was made. The defendant claims such consent was sufficient to relieve him from liability. The statute requires written consent of the mortgagee, and the court properly instructed the jury that the defendant was not justified in selling or disposing of the prop erty without that kind of consent. The statute is, of course, a statue to circumvent fraud. Formerly it provided merely that any mortgagor of personal property who should sell or dispose of such property for the purpose of defrauding the mortgagee should be guilty of a misdemeanor. Deeming the statute insufficient to accomplish the purpose for which it was designed, the legislature at its session in 1897 inserted the provision relating to written consent of the mortgagee, and made the crime of selling or disposing of the property without such consent larceny. (Laws of 1897, ch. 161.) Since then the statute has been further improved. The provision relating to written consent of the mortgagee was designed to check the commission of perjury in aid of fraud, and can not be disregarded in criminal cases.
The court instructed the jury that it was essential that the sale charged should have been made with intent to defraud the mortgagee, and further instructed the jury as follows:
“Evidence has been introduced for the purpose of showing that the mortgagee orally consented to the defendant’s selling or disposing of the mortgaged property. While such evidence as to oral consent is not competent as showing that an oral consent could take the place of a written consent, and that the requirement of the statute that the consent should be written would be satisfied by an oral consent, still such evidence is permitted by the court to be introduced solely for the purpose of bearing upon the question as to whether or not, in selling or disposing of the mortgaged property, the defendant intended to defraud the mortgagee. If the mortgagee orally consented to a sale or disposition of the mortgaged property, then you should consider this circumstance in, determining whether or not the defendant, in selling or disposing of the mortgaged property, intended to defraud the mortgagee.”
These instructions were correct and gave the defendant all the benefit of his testimony which the law allows.
The defendant cites two decisions of the supreme court of Iowa interpreting the criminal statute of that state, which the defendant says is similar to the statute of this state. The Iowa statute is distinctly unlike the statute of this state, in that consent of the mortgagee is not restricted to written consent. (2 Revised Code of Iowa, 1880, § 3895.) In the case of Walker v. Camp, 69 Iowa, 741, cited by the defendant, it was held that the rule excluding parol evidence to vary the terms of a written contract did not preclude evidence of oral consent of the mortgagee to a sale .of the mortgaged property, given at the time the mortgage was made. The reason given was that a seller of mortgaged property is not to be convicted without a criminal intent, and if because of the mortgagee’s consent the seller believe he has the right to sell, his honest act can not be converted into a crime by the parol-evidence rule. In the case of Tootle, Hosea & Co. v. Taylor et al., Garnishees, 64 Iowa, 629, cited by the defendant, the court said:
“A subsequent mortgage or sale of the property is not declared void, for the reason, we may suppose, that the mortgagor has an equity of redemption which he may sell, and, if he may do this, we see no reason why he may not execute a mortgage which will cover such interest. If the statute is literally construed, he would be liable to the penalty, although he sold the property for the express purpose of paying the debt, if the sale was made without the consent of the mortgagor [mortgagee]; and this is true, even if he tendered the money in payment of the debt. Such can not be the true construction of the statute. Under it, the mortgagor may fully use and control the property, provided he does not impair the security of the mortgagee.” (p. 632.)
The case was a civil case. The matter decided was the legal effect of the second mortgage. Considering the decision, however, as interpreting the statute for criminal as well as civil cases, it means no more than that a mortgagor should not be regarded as guilty of larceny in disposing of mortgaged property without the mortgagee’s consent unless the transaction be fraudulent. The result is, the Iowa decisions, as far as they are applicable at all, are not in conflict with the views which have been expressed.
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The opinion of the court was delivered by
Dawsón, J.:
The plaintiff was severely injured by a Rock Island train while he was crossing the defendant’s bridge over the Missouri river between Leavenworth, Kan., and Drydale, Mo. The bridge is a toll bridge erected by authority of congress and constructed on plans approved by the war depart-' ment, and is used by railroads, vehicles and pedestrians. Plaintiff brought this action against the bridge company, alleging that he purchased from defendant’s agent a ticket which' authorized and entitled him to cross the bridge from Leavenworth to Drydale in safety, and that the defendant’s agent told him to proceed and told him that he could do so in safety, and that in reliance thereon he started eastward across the bridge, and when he was about half way an accommodation train of the Rock Island railway approached him from the east, and that there was not room for him between the train and the guard rail of the bridge, and that he, believing his life was in danger, turned and ran westward, but the train overtook him and he clung to the railing while hot and burning steam from the locomotive enveloped, blinded, burned and confused him, and that the locomotive struck and knocked him down whereby he sustained his- injuries.
The defendant’s answer pleaded that the plaintiff was under the influence of liquor, and insisted, notwithstanding the protest of the defendant’s toll agent, in going upon the bridge after being informed that a train was about to cross from the east; that there was ample space for plaintiff and the train to pass in the usual and customary manner; that on account of plaintiff’s intoxicated condition,he threw himself against the side of the train, which caused his injuries; and that at all times there was ample space for a pedestrian and train to pass if the. pedestrian exercised ordinary care for his own safety.
From a general verdict and judgment for defendant the plaintiff appeals, specifying the following errors:
“1. Inasmuch as the defendant, by its amended answer and evidence, introduced the doctrine of last clear chance into the case, the trial court erred in giving to the jury instructions numbered 1, 2, 3, 4, 5 and 7, requested by defendant.
“2. The trial court erred in allowing the defendant, over the continuous objections of plaintiff, to introduce the testimony of many witnesses, to the effect that no previous accident had occurred on the bridge; that they had never known of a previous accident on it and had no difficulty in crossing it.
“3. The trial court erred in refusing to allow the plaintiff to show that since the accident the defendant' bridge company has placed a board walk, outside the railing, on the south side of the bridge.
“4. The trial court erred in allowing defendant to introduce certain photographs in evidence and in allowing Oliver Ousler, the bridge superintendent, to give certain testimony relating thereto.”
All the facts put in issue by the pleadings are conclusively resolved in favor of the defendant by the general verdict, so that phase of this lawsuit needs no attention on appeal.
Examining-the errors assigned in the order of their presentation, it is not quite clear how the doctrine of last clear chance is involved in this case, nor would prejudicial error necessarily follow if it were. It is not enough to disturb a judgment that some error or impropriety transpires in a trial. It is necessary that the appellant go further and show that the matter complained of prejudicially affected the net result. (Civ. Code, §§ 141, 581, Gen. Stat. 1915, §§ 7033, 7485; Cox v. Chase, 99 Kan. 740, syl. ¶ 11, 163 Pac. 184.) But laying aside mere cavil about doctrines, and considering the instructions themselves, the trial court gave eight instructions at plaintiff’s request, and seven at the request of defendant. These are too long for reproduction here, but the court has diligently and critically examined them. Those formulated by the plaintiff mainly outlined the law of the case under which plaintiff should prevail if the facts proved would permit it, and those formulated by defendant stated the law of the case if the facts should be resolved as pleaded and testified to by defendant. No inconsistency inhered in the instructions as a whole when read and considered together; and this is the attitude and method by which the jury should and presumably did consider them. Of course, if appellant’s second specification of error relating to the admission of incompetent testimony is meritorious, the instruction directing the jury’s attention to the legal effect of the facts established by such incompetent testimony would be prejudicial error. The question of the incompetency of the evidence will be considered in its place. The plaintiff could only recover on the grounds of negligence alleged in its petition. The allegation in the answer asserting the drunkenness of the defendant and his contributory negligence in attempting to cross the bridge in an intoxicated condition were a proper subject to be covered by the instructions. One of the instructions prepared by plaintiff and given to the jury reads:
“3. You are further instructed that if you believe, from the evidence, that the plaintiff was in such an intoxicated condition at the time he purchased a ticket or toll entitling him to cross said bridge as to render him incapable of taking proper care for his safety, and the defendant, at that time, knew this to be a fact, a greater duty rested upon said defendant to guard and protect the plaintiff from injury than would have been required of it had said plaintiff not been under the influence of intoxicating liquor.”
The complemental instruction on this point given at defendant’s request reads:
“4. The jury are further instructed that the defendant bridge company was under no obligation to anticipate or foresee that the plaintiff Cook was not or would not be in a sober condition, if he was not sober, or able to take care of himself, if he was not able to do so, and owed no other or different duty toward him than it owed toward others of the general public, and if the plaintiff, by reason of his intoxication or other negligence, unnecessarily exposed himself to risk or danger which caused dr contributed to his alleged injuries, he has only himself to blame therefor and can not recover damages from the defendant.”
The latter instruction was necessary to make a complete statement of the law covering this feature of the case, without which the defendant’s rights would have been overridden and disregarded. (McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151; Little Rock Ry. & Electric Co. v. Billings, 173 Fed. 903 [C. C. A.], 19 Ann. Cas. 1173 and Note.) The two instructions do hot conflict; they properly supplement each other. If the defendant’s agent had known or had reasonable grounds for believing that the plaintiff was so thoroughly incapacitated by intoxication that he could not take care of himself it would, perhaps, have been his official duty — at least it would have been expected of him as a natural impulse of humanity — to prevent, if possible, his going on the bridge when a train was approaching. This is somewhat akin to the doctrine of “last clear chance.” But nothing in the evidence discloses that the agent knew or had reason to believe the plaintiff was so drunk that he could not take care of himself. The plaintiff’s comrade bought the tickets for himself and plaintiff, and when the agent told them a train was coming and if they would wait a few minutes it would be over, the one who bought the tickets said they had passed the train many a time on the bridge. The agent testified that he thought they were drunk, but not staggering, and he let them pass, as was his custom with all pedestrians who appeared to be able to take care of themselves. The statement of plaintiff’s comrade would tend to dissipate any doubt which the agent might have as to the plaintiff’s capacity to care for himself. The court is of opinion that the instructions quoted and the others given fairly covered the law applicable to these circumstances.
Was it error to permit the defendant’s numerous witnesses to testify that they were familiar with the bridge and had met and passed trains on the bridge many times, that hundreds of people crossed the bridge without accident every day and every night? The plaintiff’s petition alleged that it was the usual custom of the defendant to sell tickets to pedestrians when trains were not due, and that the exercise of reasonable care required the defendant not to allow pedestrians to cross at times when trains were due or about to cross the bridge. Defendant’s answer put the latter allegation squarely in issue. Plaintiff introduced some evidence tending to support it. It would seem, therefore, that defendant’s evidence to the contrary was competent on the issue which plaintiff tendered. The case of Ireton v. Ireton, 59 Kan. 92, 52 Pac. 74, cited in condemnation of this, merely holds that incompetent evidence is not rendered competent because the party introducing it had set it up in her pleadings and no motion had been made to strike it out.. But here the evidence objected to was proffered to combat the allegations of the pleadings and evidence of the adverse party. Surely what the plaintiff may allege, the defendant may deny; and what the plaintiff seeks to prove, the defendant may endeavor to disprove. But plaintiff argues that this evidence does not show that the many pedestrians who daily passed trains on the bridge were intoxicated; that they did not meet the same train or one exactly similar, at the same time of day — in other words, that the conditions under which the witnesses had passed the bridge and had seen others pass the bridge in safety were not like those under which the plaintiff was injured, and that such evidence was therefore incompetent and irrelevant. This cuts the matter a little too fine. There is no reason to believe that there was so much difference in the width of engines and cars as to materially increase the hazard, if there was a hazard, to a sober and ordinarily careful person in meeting and passing a train on the bridge; and the distinction between the extent of the company’s responsibility to sober and to drunken patrons was most favorably pointéd out in the instructions. The defendant could not prove its whole defense at once. Under the negligence alleged and testified to by plaintiff it was incumbent upon the defendant to prove that its bridge was safe for ordinary pedestrians to meet trains on the bridge under ordinary conditions, and that it was not necessary to forbid them to enter the bridge when a train was approaching. The evidence was competent for such purposes. (Field v. Davis, 27 Kan. 400; City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907; 1 Wigmore on Evidence, §§ 444, 445, 458.)
In 82 L. R. A., n. s., 1161-1164, is part of an extended note showing the conflict of authority as to the admissibility of negative evidence; and the Kansas case, Field v. Davis, supra, is cited among those which permit such evidence when its admission is not likely to carry the inquiry too far afield or to raise collateral or impertinent issues.
Even the matter of the escape of steam from the engines passing pedestrians on the bridge was shown by some of the witnesses ■ not to have been unusual or serious. This matter was covered by an instruction strongly favorable to the plaintiff, and it should be kept in mind that it was the bridge company, not the railroad company, which was sought to be held, partly on account of the escaping steam and its consequences. Moreover, the trial court fully restricted the criticised evidence to its proper scope:'
“4. You. are further instructed,, that even if you believe from the evidence, that many other persons had crossed the bridge of the defendant on foot in safety, before the night of the plaintiff’s alleged injury, that fact would not defeat a recovery in this case if you further believe, from the evidence, that said defendant, considering all of the circumstances surrounding the crossing of said bridge by said plaintiff on the night in question, did not exercise reasonable and ordinary care to keep said plaintiff off said bridge or to permit him to cross said bridge .on foot in safety.”
The third assignment of error relates to the exclusion of evidence which, it is asserted, would show that a board walk outside the railing has been placed on the south side of the bridge. The excluded evidence was not brought upon the record by affidavits, deposition or testimony supporting the motion for a new trial, and can not be considered on appeal. (Civ. Code, § 807; Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648; Scott v. King, 96 Kan. 561, 152 Pac. 653.)
Another error is based on the introduction of certain photographs of the bridge. Plaintiff’s objection reads:
“Objected to because they will not help the issues; they would not show the distance from the track to the sides of the bridge; they are taken very close up to the west end, and are deceptive in that particular; they are not taken when a train is crossing the bridge, or this- Rock, Island train in particular; and are objected to for the reason they are incompetent, irrelevant and immaterial.
“The Court: You do not object to them because they are not properly identified?
[Counsel for Plaintiff] : “No, I presume they are actual photographs of the bridge; but I think they are incompetent because they would not help the jury any except as to the general appearance of the bridge.”
The court has examined the photographs and can not see how their submission to the jury could have prejudiced the plaintiff, and the trial court’s ruling that they might be admitted “for what they were worth” was not error. (Higgs v. “Soo” Ry. Co., 16 N. D. 446, 15 L. R. A., n. s., 1162; Hughes v. State, 126 Tenn. 40, Ann. Cas. 1913 D, 1263 and Note; Dederichs v. Railroad Co., 14 Utah, 137, 46 Pac. 656, 35 L. R. A. 802.)
Nothing approaching the gravity of reversible error is disclosed in this appeal, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a decree enjoining him from interfering with the plaintiff’s possession and use of a certain irrigation ditch. The plaintiff, in its petition, alleged that it was the owner of the ditch in question, known as lateral No. 29; that it had owned, operated and maintained it at its own expense exclusively for more than eight years, during which time it had been in the exclusive, undisturbed and undisputed possession and absolute control, and that the defendant, Shepherd, “does not own any interest in said lateral No. 29, or any part thereof, and never did own the same, and has no right in or to said lateral, or right to convey water in or through the same to his land.” The answer was a general denial.
There was testimony tending to show that the original ditch was built by a ditch company ánd by a former owner of the land now owned by the defendant. There was also evidence on which the court based its conclusion that the plaintiff was in the quiet and peaceable possession of the ditch, and had been for a number of years. While no affirmative relief was asked by the defendant, its counsel, in the opening statement, said that they expected to show that he was a stockholder or water-right holder, and as such was entitled to his share of the water, and that he had helped maintain the ditch, most of which was built by his grantors. .That “if he is not permitted to use water out of this ditch, as he has used it for years and years, he and his grantors will be deprived of the use of the water which rightly and justly belongs to him.”
It is now complained that the court undertook to settle the question of title in an injunction suit and that this was error. The decree was that the defendant be enjoined from interfering with the plaintiff’s possession and use of the ditch, but it was further ordered that in case the defendant should institute an action at law to establish his title to a right of possession and use of the lateral, this injunction should not be a bar to the prosecution of such action, and should not be taken as an adj udication or determining of the title to the ditch.
While by an amendment of the pleadings, or possibly without, the case could have proceeded as one to determine title, it was not so treated by the court, and no demand so to do was made by the defendant and no offer by it to present the question of title directly by way of amendment, and in view of the precaution taken to guard against any interference with such action when brought, the court can hardly be deemed to have undertaken to adjudicate the title.
Assuming, as the trial court found, that the plaintiff was in possession, there was testimony indicating a disposition on the part of defendant Shepherd to interfere therewith to the extent of using the lateral without consent of the plaintiff. The situation presented by the record was very similar in principle to that disclosed in Mathis v. Strunk, 73 Kan. 595, 85 Pac. 590, involving a party wall in the peaceable possession of its owner, but standing wholly or partly on the land of the other party, who was enjoined from using it until he should establish his right thereto in a proceeding brought by him for that purpose.
The evidence and the claims of the parties were conflicting, but there was support for the conclusions reached, and the title to the ditch was left undetermined.
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The opinion of the. court was delivered by
MASON, J.:
Charles W. Smith brought an action against John Parman and others, charging them in several counts with having brought malicious prosecution against him under the ordinances of a city of the second class. Parman filed a plea in abatement, alleging that at the time of the conduct on his part of which the plaintiff complained he was the city attorney and was acting in that capacity. • The trial court held the plea to be good and dismissed the case as to Parman. The plaintiff appeals. It is conceded that Parman was the city attorney at the time the prosecutions complained of were brought. The method by which that circumstance is brought to the consideration of the court is not important. The case involves the question whether a city attorney is liable in damages to the person injured if he maliciously and without probable cause institutes a prosecution against him under an ordinance.
1. The statute provides for the appointment of a city attorney, but does not define his duties. (Gen. Stat. 1915, § 1684.) Doubtless from the practice in this state the duty of prosecuting violators of the city ordinances is implied from the mere name of the office. In the brief of the appellee a copy of an ordinance is set out giving the city attorney control of such prosecutions. While this is not formally in the record the accuracy of the copy is not questioned. We regard the city attorney, while engaged in the prosecution of persons charged with offenses against the ordinances, as entitled to the same privileges and immunities that ordinarily attach to the' office of a public prosecutor. A proceeding of that kind is essentially a criminal action. (Neitzel v. City of Concordia, 14 Kan. 446.)
2. In one of the few discussions by text-writers of the liability of a public prosecutor to an action for malicious prose(cution it. is said:
“A prosecuting attorney, being a judicial officer of the state, is not liable, in damages for acts done in the course of his duty, although wilful, malicious or libelous.” (32 Cyc. 717.)
This text is obviously based upon Griffith v. Slinkard, 146 Ind. 117, the other cases cited in connection with it not bearing directly upon the matter. The reference to the prosecutor as a judicial officer might seem open to question. Much of his work is advocacy. But the important matter of determining what prosecutions shall be instituted is committed in a considerable degree to his sound judgment, and in the exercise of that function he acts at least in a quasi-judicial capacity. Judges are exempt from civil liability for official acts even if corruptly done, the reason being that the independence of their conduct is thereby promoted, to the benefit of the public. (15 R. C. L. 543; 23 Cyc. 567; 17 A. & E. Encycl. of L. 725.) Grand jurors are given the same immunity with respect to indictments returned by them, for a similar reason. (20 Cyc. 1356; 17 A. & E. Encycl. of L. 1302.) The public prosecutor in deciding whether a particular prosecution shall be instituted or followed up performs much the same function as a grand jury. If, while he has a question of that kind under advisement, he is charged with notice that he may have to defend an- action for malicious prosecution in case of a failure to convict, his course may be influenced by that consideration, to the disadvantage of the public. Communications made to a public prosecutor 'relating to offenses against the law are treated as privileged because “persons having knowledge of the commission of a crime ought to be encouraged to reveal to the prosecuting attorney fully, freely and unreservedly the source and extent of their information.” (Michael v. Matson, 81 Kan. 360, 366, 105 Pac. 537.) We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct (Gen. Stat. 1915, § 3588) or of being ousted from office on that account. (Gen. Stat. 1915, § 7603.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
George Senning, while standing beside the track of the Arkansas Valley Interurban Railway Company, was struck by the rear step-of a car as it swung around a curve. He brought an action against the company on account-of the injury received. A demurrer to his evidence was sustained, and he appeals.
The accident took place just as the car was leaving the station at Wichita. The platform used by passengers is about fifteen feet wide and two feet high, and is a little longer than one of the cars. The track is about five feet- east of the platform, paralleling it for its full length, but a curve to the east begins about opposite its south end. Passengers are received and discharged by means of a gangplank placed from the platform (near the north end) to the rear step of the car.
The plaintiff had gone to the station with friends, who were leaving by the seven o’clock car on the evening of October 14. When the party reached the station the car was already there. The plaintiff accompanied his friends to the gangplank, and after they had crossed it he walked south along the platform about two-thirds of the length of the car, to where his wife and little daughter were standing. He passed them, and stopped for five or ten minutes talking with an acquaintance: His daughter then came to him and told him she had dropped a coin to the ground below the platform. He undertook to find it. He descended the steps at the south end of the plat form, which brought him upon the sidewalk of the street, which runs east and west. He then walked north between the car and the platform about a third of the length- of the car and lit several matches, looking for the coin. While he was stooping over, facing to the west, the car started, moving to'the south. As the front wheels turned to the east on the curve the rear steps protruded to the west and struck the plaintiff over the right kidney, causing the injury of which he complains. As the car stood upon the straight track the overhang was about a third of the distance from the rail to the platform. The curve caused the rear steps to protrude, at the point where the plaintiff was struck, to about half the distance. The nearest the steps-were brought to the platform by the swing at any point was about tw;o feet.
The negligence relied upon is the starting of the car without signal or warning. The defendant maintains that it.owed no duty to the plaintiff in this regard, and that in any event his recovery is precluded by his own conduct.
1. The failure of the defendant’s employees to give a signal before starting the car can not be a basis of liability to the plaintiff unless the omitted duty was one they owed to him (Express Co. v. Everest, 72 Kan. 517, 83 Pac. 817), and this could not be the case unless they knew of his presence 'or had reason to expect it. Clearly the ground between the track and the platform was not a place where passengers, passers-by or bystanders were ordinarily to be looked for. The plaintiff in the most favorable aspect was a mere licensee, and the defendant was under no obligation to be actively vigilant in protecting him against danger. (33 Cyc. 767; 29 Cyc. 452; Notes, 17 L. R. A., n. s., 916, L. R. A. 1915 B, 827.) A suggestion is made that as the plaintiff lit several matches it may be inferred that he was seen by some of the defendant’s employees, but we regard the inference as too remote. The petition did not allege that any employee saw the plaintiff.
2. Even if it should be assumed that the defendant did owe a duty to the plaintiff to give a signal before the car was started, the omission to do so could amount to no more serious misconduct than ordinary negligence — the evidence was not capable of supporting a reasonable inference that the defend ant’s employees anticipated or should have anticipated that the car would strike the plaintiff, and were indifferent to the consequences.
“One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the .class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrong-doer is that instead of affirmatively wishing to injure another he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to-believe it will strike another, being indifferent whether it does or not.” (Railway Co. v. Baker, 79 Kan. 183, 189.)
In the case just cited it is said of the circumstances necessary to warrant characterizing as wanton the conduct of trainmen toward a person in a position of peril:
“Nor is it enough that they know some one might be in the place of danger; the probability must be so great — its obviousness ''o the employees so insistent — that they must be deemed to realize the likelihood that a catastrophe is imminent and yet to omit reasonable effort to prevent it because indifferent to the consequences.” (p. 187.)
3. If therefore the defendant did omit a duty which it owed to the plaintiff, the omission was not such as to create a liability regardless of his own conduct. He knew when he went between the platform and the track that the car was likely to start within a short time. The place, although obviously not intended for the use of the public, was not necessarily one of great danger. There was abundant room for a person to stand between the platform and the nearest point to which any part of the car could approach it. The exercise of reasonable care required the plaintiff to keep himself beyond the reach of the end of the car as it swung around the curve. The -outward swing of the rear step as the front wheels took the curve was a matter of .which he was chargeable with knowledge, since it is a common if not universal characteristic of such cars and is a necessary consequence of the end of the car projecting over the wheels. (Notes, Ann. Cas. 1916 E,. 679; L. R. A. 1915 C, 604, and prior notes in that series.) Incidentally, if he was not aware of this phenomenon, then notice that the car was about to move would not have advised him of his danger.
The judgment is affirmed. | [
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Per Curiam:
In this action the plaintiff seeks by mandamus to compel the defendants to transfer to her, on the books of the defendants’ bank, certain shares of stock. In the alternative writ it is alleged that—
“Plaintiff is the owner, by virtue of an assignment in writing and delivery duly and legally made of certificate of stock No. 80 — a copy of said certificate, and the assignment thereof, is hereto attached and marked Exhibit ‘A’ and made a part hereof — by A. Capper, the registered owner thereof, of eighteen shares of the capital stock of the defendant corporation, the First National Bank of Lyndon.”
Each of the defendants has filed a motion to quash the alternative writ of mandamus issued against him. Each of the writs states a cause of action in favor of the plaintiff, and the motions to quash the writs are denied.
Each of the defendants has answered, and each “denies each and every material allegation in said writ contained except such as are hereinafter admitted.” Each answer is verified by defendant C. T. Neihart, who is the president of the defendant bank. Each of the affidavits verifying the answers contains the following:
“That the said A. Capper did not execute and deliver to' plaintiff the assignment of stock attached to plaintiff’s petition and marked ‘Exhibit A.’”' '
Each of these answers, with its verification, puts in issue the execution and delivery of the assignment of that stock to the plaintiff. The plaintiff demurs to each of the answers.
The demurrer can not be sustained for the reason that the ■plaintiff’s ownership of the stock, and the execution and delivery of the assignment thereof to her, are denied. No other reason appears for not. sustaining the demurrer and rendering judgment in favor of the plaintiff thereon.
The demurrer is overruled. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for libel. The court granted a motion to strike out certain innuendoes inserted in the petition, denied a motion for a change of venue, and sustained a demurrer to the petition. The plaintiff appeals.
All that is necessary in order to determine the propriety of the court’s ruling, striking out the innuendoes, is to compare the explanations with the language sought to be explained. It is not necessary to print them. It is quite clear that the plaintiff undertook to extend the meaning of the defendant’s statements concerning him beyond the natural signification of the words used.
The change of venue was asked for on the ground that the judge of the district court would necessarily be a material witness for the plaintiff. Bias or prejudice was not charged, and the judge was perfectly competent to rule on the motion to strike and on the demurrer. The issues of fact had not been made up, and have not yet been made up. Until that is done it can not be determined whether or not the judge will be needed as a witness. Consequently, the' application for a change of venue was premature.
The alleged libel was contained in a newspaper article criticising the plaintiff’s conduct as county attorney in connection with an application for a parole by a person who had pleaded guilty to a felony. The substance of the article was that the plaintiff, in response to a request by the court to hear from the county attorney, stated that he had made a thorough investigation of the applicant’s previous conduct, and was satis fied justice would be best subserved by granting the parole, as the applicant was a first offender. The sheriff had investigated the applicant’s record. The applicant had already served a term in the Illinois penitentiary, and the court confronted him with his rogue’s gallery photograph. Vigilant investigation by the county attorney, whose duty it was to advise the court of the truth, would have apprised him of the facts ascertained by the sheriff. The plaintiff’s recommendation to the court no doubt was at the solicitation of the applicant’s attorneys, and the price the plaintiff was paying for subserviency to them. But for the sheriff, the combined efforts of the plaintiff and the applicant’s counsel would have set free a man who ought to be in the penitentiary. Less politics, less juggling, less collusion between the plaintiff and certain lawyers in Paola are necessary.
The court is of the opinion the article charged the plaintiff with dereliction of duty and misconduct as a public official.
The defendant contends that the article contained an account of a judicial proceeding, with comment upon it, and that even if false, the publication was privileged. The narrative portions of the article and the comments extended considerably beyond what took place in court, and the petition, which must be taken as true for present purposes, charged the falsity of the entire article. Besides this, malice and a specific intent to injure the plaintiff were charged. The result is that the defense of privilege can not be made out from the face of the petition.
The judgment of the district court is reversed, and the cause is remanded with direction to overrule the defnurrer to the petition. | [
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The opinion of the court was delivered by
West, J.:
The mortgage foreclosed in this action covered two separate tracts of land in Chautauqua county, where the suit was brought, and also two separate tracts in Elk county. June-4, 1914, the court rendered judgment and directed the sheriff of Chautauqua county to sell all of the lands, which order he obeyed. The Chautauqua lands sold for $3312.25, and those in Elk county for $1419.46, the plaintiff being the purchaser. September 1, 1914, the sale was confirmed. December 16, 1915, the plaintiff filed its motion to set aside the order of sale, the sale and confirmation so far as they related to the lands in Elk county, and for an order of sale of the Elk county lands to the sheriff of that county. This motion was granted a few days later, the record showing no notice to, or appearance by, the defendant. January 15, 1916, the defendant filed a motion to set aside the judgment of June 4, 1914, the order of sale, and the sale of July 20, 1914, and the confirmations thereof on the grounds that they were void because the judgment directed the property to be sold en masse, by. reason of which it did not bring a fair price; that it did not direct an appraisement; that the lands were sold for less than two-thirds of what their appraised value would have been; that the sheriff returned his fees, charges and commissions in a lump sum and did not post notices of the sale at five public places in either county. This motion was overruled February 2, 1916. January 15, 1916, an order of sale was issued to the sheriff of Elk county to sell the lands there situated, and on February 21, 1916, upon a notice in a newspaper they were sold, the sheriff returning his fees and costs at $17.55. April 3,. 1916, the,defendant filed another motion to set aside the judgment and the order of sale and sale of the Elk county land, setting up, among others, the ground that the purchase under the first sale had satisfied the judgment and costs. This motion was overruled April 7, 1916. April 19, 1916, the sale of the Elk county lands was confirmed. The defendant appeals and claims that the first sale was void because covering the lands in' the two counties, that after the close of the term at which it was confirmed the court was without jurisdiction to modify the first judgment and that the new order of sale was likewise void for the same reason. Also that the court erred in refusing to set aside the new order of sale and the sale thereunder. Lack of appraisement and failure to post notices in five public places are also urged as invalidating the first as well as the second sale.
Of course there were great irregularities in the proceedings and the defendant should not be taxed with the needless costs thereby made, but this matter can be fully and properly adjusted on a motion to retax costs, if necessary, although from a statement in the plaintiff’s brief would seem that this item has been settled.
Authorities are cited in support of the voidability of a judgment of foreclosure requiring the sale of separate tracts of land; but none is pointed out which hold that such a judgment order and sale are void, especially after confirmation. Beyond question, however, that part of the judgment, order and sale confined to the Elk county lands was void and not merely voidable. Hence this part of the judgment could, under the familiar rule as to void judgments, be set aside at any time. (Challiss v. Headley & Carr, 9 Kan. 684; Gille v. Emmons, 58 Kan. 118, 48 Pac. 569.)
Since the decision in Armstead v. Jones, 71 Kan. 142, 80 Pac. 56, the rule has been settled that in a mortgage foreclos ure sale an appraisement is not necessary. Counsel calls attention to certain sections of. the statute not repealed by the adoption of the present civil code, but these can be harmonized with the view and application adopted in the Armstead case. (See Norton v. Reardon, 67 Kan. 302, 72 Pac. 861; Fraser v. Seeley, 71 Kan. 169, 79 Pac. 1081.)
Since McCurdy v. Baker, 11 Kan. 111, the necessity of posting notices in five public places in counties where newspapers are regularly published has not been deémed essential. The doctrine of that case must be deemed controlling.
The judgment is affirmed. | [
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Per Curriam:
This case was submitted in connection with the foregoing case of Hortense Patterson v. Uncle Sam Oil Company, and the questions in issue being substantially identical in the two cases, the judgment in this case is also reversed and the cause remanded with directions to grant a new trial upon terms to be imposed by the court. | [
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The opinion of the court was delivered by
Porter, J.:
This action is to recover treble damages for the alleged destruction by defendant of six shade trees which plaintiff claims were growing on his land near the division fence between his farm and that of the defendant. The jury found generally for the defendant. A motion for a new trial was overruled, and the court rendered judgment against plaintiff for costs, from which he appeals.
At a former trial there was a judgment for the defendant which on appeal was reversed. (Collins v. Morris, 97 Kan. 264, 155 Pac. 51.) The facts are set forth quite fully in the former opinion, and it will be unnecessary to restate them. The former judgment was reversed because it was manifestly contrary to the evidence, and therefore it was held that the court should have set aside the verdict and granted a new trial.
It was pointed out in the former opinion that there was error in the admission of certain testimony respecting, the value of plaintiff’s land 'for farm purposes before and after the trees were destroyed, from which testimony the court ap plied an erroneous measure of damages. Although the error was not properly raised by the appeal, the law was declared in the former opinion so that the correct rule might be applied on the second trial. There is no claim of error in respect to that matter in the present case.
In this appeal errors are alleged respecting the admission of testimony, the giving of instructions, and in permitting the jury, over plaintiff’s objection, to be taken out to view the premises. We find no error in any of these rulings. It is true the trees had been destroyed a considerable time before the trial, but there was no abuse of discretion in sending the jury to view the place where the stumps of the trees stood, the court having fully charged the jury not to talk with any person in regard to the case. Moreover, there is no showing that anything improper took place.
The only claim of error which requires consideration is the refusal to grant a new trial. The former reversal was placed squarely upon the ground that the defendant admitted that he set fire to one of the trees, and when asked why he did 'this and whether he intended to burn the tree, stated in substance that trouble arose between him and Collins because the latter claimed he was farming part of the public highway, that he was angry and set fire to the tree. His testimony at the second trial was to the same effect. In answer to questions asked him by counsel, he testified:
“Q. Did you burn one of those trees a little on the north side? A. I did.
“Q. Which one was it? A. There on the corner.
“Q. The west tree? A. Yes.
“Q. What were you doing there that day when you burned that tree? A. Plowing.
“Q. What, if anything, happened to you while you were plowing there? A. I was plowing. Of course he said I was farming the public highway, and went down there and talked to their neighbors and I took the brush and straw and burned that tree; that is what I did.
“Q. When you testified before, I believe you said about catching your plow on a root? A. Oh, yes, I catched it to a root, and he monkeyed with me long enough and got me mad.
“Q. What did you do? A. I went after a bunch of straw.
“Q. Where did you go to get the straw? A. I went to Cap. Collins’ pasture, right opposite it.
“Q. How big a bunch of straw did you get? A. Well, a handful.
“Q. What did you do with the straw? A. Flung it over there and put a match on it and set it afire.
“Q. Which side of the'tree did you set it on? A. On the south side.
“Q. Then after you put it on the south side of the tree what did you do? A. I went on plowing.
“Q. Did the straw just lay there? A. Oh, I lit the straw; I set it afire.
“Q. Did it scorch the tree a little? A. Just a little.
“Q. That was the west tree? A. Yes, that was the west tree; that is on the corner.
“Q. Now, John, did you ever burn any other trees along that line? A. No, sir.
“Q. Never burned any other tree? A. No, sir.”
On cross-examination he was asked why he burned the tree, and replied:
“Mr. Collins write for me and said I farmed 20 feet of the public highway; that is where the trouble came in there.”
Several other trees near the partition fence were shown to have been burned or girdled, and a finding that defendant was responsible for their destruction could not be said to have been' unwarranted by the evidence. But he denied having anything to do with their destruction, and there was a conflict in the evidence as to their exact location and whether they were on the plaintiff’s land or that of the defendant. Notwithstanding the general verdict is against the plaintiff as to all the other trees, it was just as much the duty of the trial court to set aside the verdict and to grant a new trial in the present instance as it was before. There was evidence of the value of the ,tree destroyed, although it was conflicting; but a shade tree, such as all the evidence shows the one in question to have been, has some value, a fact of which courts should and will take judicial notice. Upon the undisputed facts the jury had no right arbitrarily to find that such a tree had no' value. It was the duty of the jury to find its value and allow the plaintiff three times the amount as damages for the willful trespass. Where a jury refuses upon undisputed facts to return a proper verdict it becomes the duty of the court to set the verdict aside and order a new trial.
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The opinion of the court was delivered by
Porter, J.:
The trial court sustained a demurrer to plaintiff’s reply to the defendant’s answer. Plaintiff elected to stand on his reply and appeals.
The action was to recover on a promissory note for $1000, dated January 28, 1908, due in one year, payable to plaintiff’s order, signed by the defendants. The action was not brought until December 19,1913.
The answer admits execution of the note and avers that it was given in connection with a written contract of the same date between the parties in settlement of a controversy then existing between them, and that it was agreed that the payment of the note was conditional and should be made from the proceeds of the sale of a certain mill property at Council Grove, and not until this property was sold or traded, or until the plaintiff should elect to take' the property under the terms of the contract. The answer then alleged that the mill property had never been sold or traded as provided in the contract; that plaintiff had never made any effort to sell it or trade it; had never elected to purchase it under his option provided in the contract; that defendants had used every reasonable effort on their part to sell or trade it; that at the time the note and contract were executed the property, was subject to a mortgage, and that by reason of the inability of defendants to sell or trade it and plaintiff’s neglect and refusal to do so the mortgage had been foreclosed and the property sold and lost to the defendants. It was alleged that by reason of these facts the note has never become due and payable, and that it was given, without consideration.
A copy of the contract of settlement attached to the answer recites in substance that the defendants, the Cunninghams and Munkers, had, under an agreement of November 7,1907, agreed to convey to the plaintiff the' mill property in Council Grove in exchange for certain land belonging to the plaintiff in Logan county, and that he had given to the defendants his note for $3800, secured by a mortgage on the mill property, which it appears was to cover incumbrances on the Logan county land and $500 boot money. The agreement then recites that in final settlement of all controversies then existing between the parties the defendants were to take back the deed to the mill property which had b.een placed in escrow but never delivered, and the deed was to be destroyed. They surrendered to the plaintiff his note for $8800 and mortgage and he agreed to dismiss with prejudice'to any future action a cause pending in the.district court of Logan county against the defendants in which he had sought to set aside his deed to the Logan county land, and he was to relinquish all further claim or interest in the Logan county land to the defendants, and in consideration of these matters and the séttlement of their controversies the defendants executed and delivered to him the promissory note sued on in this action.'
There was a further agreement in the contract of settlement that the parties were each to do all they reasonably could to find a purchaser for the mill property, and the Cunninghams and Munkers were to receive first the sum of $5000 of the proceeds, and the balance was to be equally divided between them and Rohrbaugh. They agreed to keep the mill property insured and pay the taxes for the first year, and if for any reason the property should not be disposed of within one year the expense of maintaining the property, including taxes and insurance and interest, was to be borne equally between them and Rohrbaugh.
The particular clause upon which the answer based its defense is as follows:
“Seventh. It is further understood and agreed by and between the parties hereto that the said party of the second part shall have the right and an option to purchase said mill property at Council Grove, Kansas, upon payment by him to said first parties of the sum of $5,000.00 at any time before said mill property is sold or disposed of by them, and if not sold to said second party upon the terms mentioned or to anyone else within one year from this date, then the time for payment of said $1,000.00 note shall be extended until such time as said mill property may be sold or traded.” •
To this answer the plaintiff filed a reply admitting the execution of the contract and going a little further into the details of the contract of November 7, 1907, and alleging that under it he was to trade to defendants 2560 acres of land in Logan county in exchange for the mill property, but that the Cunninghams and Munkers were unable to comply with their agreement and furnish a merchantable title; that the note sued on was given in consideration of the settlement of his suit to set aside the trade and in payment of his interest in the Logan county land. The reply also alleged that the defendants had sold and conveyed whatever interest they might have had in the property in Council Grove, and also that it had been judicially determined in a certain action in the district court of Morris county that they never owned the mill property or any title thereto. It alleged that the defendants had never offered to convey the lots to the plaintiff since the execution of the note sued on, nor requested him to exercise his option to purchase the same, and further, that a reasonable time for maturing the note had long since elapsed and that the note was due and payable at the time of the commencement of the action.
If the only question before us was whether the demurrer to the reply should have been overruled, we would have no hesitation in saying that it was error to sustain the demurrer and to render j udgment against the' plaintiff. The demurrer admits that the defendants lost whatever title they had to the mill property; that many years before the suit had been brought they had made it impossible to comply with any of the options or privileges contained iri the contract of settlement, by which under possible, , but obviously improbable, contingencies and conditions the plaintiff might acquire an interest in the mill property or in the proceeds of its sale. The reply fully met the defense set up in the answer, but we do not place our decision upon the sufficiency of the reply.
In our opinion, it would require a diligent search' of cases to find one more appropriate for the application of the general rule that a demurrer to a pleading searches the whole record. The answer of the defendants stated no defense. Stripped of its verbiage it amounts to this: That the note has never become due and payable because by the terms of the contemporaneous agreement the time of payment was made conditional. The seventh clause, which is relied upon in support of this contention, merely gives to Rohrbaugh an option to purchase the mill property from the makers of the note for the sum of $5000 at any time before the property is sold or disposed of by them, “and if not sold to said second party [Rohrbaugh] upon the terms mentioned or to any one else within one year from this date, then the time for payment.of said $1000 note shall be extended until such time as said mill property may be sold or traded.”
In another paragraph of the answer it is admitted that the defendants lost whatever title they had to the property by foreclosure because of the failure to pay the mortgage and tax liens accruing upon the property. ,
The rule is well settled that a note of this kind is payable after a reasonable time for the performance of the condition, and that the failure of the makers to perform their part of the condition within a reasonable time renders them liable upon it. (Brown v. Cruse, 90 Kan. 306, 133 Pac. 865.) In the opinion in that case a quotation from 9 Cyc. 615 applies to the facts in the present case:
“Where a debt is in fact due, and it is agreed that it shall he paid upon the happening of a future event, and the event does not happen, it is held that the law implies a promise to pay within a reasonable time.” (p. 308.)
In Brown v. Cruse, supra, the note was given for labor, and it was said in the opinion that—
“It could not reasonably have, been the intention of the parties that the makers were to pay or not as they should choose. It is more in accord with justice and fair dealing to assume that they, with the plaintiff, were to make fair endeavor to derive the amount from the patent or the sale of machines, and that their failure or refusal so to do within a reasonable time should not wipe out the debt but leave them liable for its payment.” (p. 308.)
Apparently the plaintiff signed the contract in the belief that the transaction was intended to settle all controversies between the parties; but whether by the defendants’ procuring or otherwise, the instrument was so drawn that, if defendants’ construction of it is the true one, the plaintiff was only getting out of one controversy and getting into a number of others. Whatever title or ownership defendants had in the mill property was about to slip from them by impending foreclosure proceedings. If the intention of defendants, by the provisions in the contract giving plaintiff an option to purchase or trade for the mill property or share in the proceeds of its sale, was to make the note never payable unless the option should be exercised or unless the land were sold, it is fortunate for the plaintiff that the law will not favor such a construction of the contract. A contract of this nature can not be construed so that it shall never be payable at all, but only as an extension of credit. (Greenstreet v. Cheatum, 99 Kan. 290, 161 Pac. 596.) In that case payment was to be made when a certain residence could be sold for a stated price. It was never sold, and about two years after the agreement was made the house was burned. In the opinion it was said:
“The mortgage debt which the defendant assumed to pay became an actual liability when the property was transferred to her. The payment of the same was postponed to an indefinite time. The fact that a sale was not made for the sum named did not cancel the debt. Neither did the destruction of the house discharge the obligation or any part of it. It only demonstrated that the contingency named as the time of payment was'unlikely ever to happen.” (p. 295.)
It was held that under the circumstances a reasonable- time for payment had elapsed. In the opinion the case of Nunez v. Dautel, 86 U. S. 560, is cited, where the contract was to pay a sum of money as soon as the crop could be sold or the money could be raised from any other source, and where it was said:
“It could not, have been the intention of the parties that if the crop \yere destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the debt should never he paid. Such a result would be a, mockery of justice.” (p. 562.)
To the same effect is Benton v. Benton, 78 Kan. 366, 97 Pac. 378, where the obligation was to.pay an acknowledged debt as soon as the obligor could. In the opinion it was said:
“It is entirely inconsistent with the spirit and purpose of the engagement to suppose for a moment that the parties contemplated that the avowed obligation should never be capable of enforcement, even to the extent of the obligor’s ability to pay, unless he should become financially able to meet the entire obligation at once.” (p. 370.)
Other cases to the same effect are'cited in the opinion in the Greenstreet case, supra.
In the present case the plaintiff waited before bringing suit on the note until less than sixty days remained of the five-year statute of limitations. If the contention of the defendants is sound, they are to retain the 2560 acres of Logan county land, while the plaintiff takes nothing. The $1000 note was given in consideration of his conveyance of that land to them. It represents all that he can ever get out of the transaction. It is seriously argued in the brief of defendants that the defense in the answer to the effect that the note has never become due and payable must be sustained. On the contrary, we think the conclusion of law therein stated has no basis upon the facts recited in the answer.
In Johnson v. Wynne, 64 Kan. 138, 142, 67 Pac. 549, it was held to be “the established practice in this state, sustainable upon principle as well as authority, that a demurrer lodged against a pleading searches the record,” and that the demurrer should be carried back to the former insufficient petition and sustained thereto, citing The State, ex rel., v. Comm’rs of Pawnee Co., 12 Kan. 426; Stratton v. McCandless, 27 Kan. 296. “The general rule is that a demurrer opens the whole record so that judgment must be rendered against the first party whose pleadings are defective in substance.” (31 Cyc. 338.)
We need not consider whether the reply is good or bad. See 31 Cyc. 340, where it is said:
“So it makes no difference whether the pleading demurred to is good or bad, but the first defective pleading will nevertheless be searched out.”
In this case the court should have carried the demurrer back to the answer and sustained the demurrer thereto and should have rendered judgment for the plaintiff for the amount sued for.
The judgment will be reversed and remanded with directions to proceed accordingly. | [
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