The Topeka state journal. [volume], July 13, 1918, HOME EDITION, Page 14, Image 14

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14
TBK TOPFKA DAILY STATE JOII RNAI, -SATURDAY EVENING. TT.Y 13. 1 01 9
i
LEGAL.
LEGAL
LEGAL
LLGAI,
LEGAL
LKGAL
Published In The Topeka State Journal.
July 13, 1918.J
SUPREME COURT SYLLABI
No. 21,855.
T. M. Haiutltou, Appellant,
V.
The Eastern Kansas OU Company, Ltd.,
Appellee.
Appeal from Allen County.
AFF1 ItMEU.
syllabus. By the Court. Porter, J.
Error will not be presumed, but must af
firmatively appear. Where a review is
vntitrlit of the action of the trial court in
setting aside a jreneral venlict and render
lug judgment on the special findings, and
nne of the evidence is abstracted, but on
the upet-ial finding the action of the trial
court would t justified provided there
was no eTiflence of a certain character
offered, it will not be presumed that there
wn such evidence.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
Oeai.J Clerk Supreme Court.
No. 21,662.
In re The Estate of C. E. Jewell, deceased
(Marie Jewell, as Administratrix, etc.).
Appellee,
TS.
'-'he Central Trust Company, and (L.' M.
Jewell, as Administrator, etc.,. Appel
lants. Appeal from Shawnee County.
(Division No. 2.)
AFFIRMED.
Byllabus. By the Court. Johnston, C. 3.
1. This action involved the ritfbt to re
cover lor personal services rendered by an
agent ami employe for his brother, and the
jury found that an express contract had
been made for the services but that the
compensation to be paid and the times of
payment were not fixed by the agreement.
Held, that the evidence was sufficient to
support the finding of the jury.
2. No time having been fixed for the term
of service or payment for the services of
the employe which continued until the
death of the employer, the ordinary rule is
that t!w statute of limitation! does not be
gin to run Against a claim for compensa
tion until the services are ended, unless
there is a general custom or usage to the
contrary; and while a custom was shown
herein ns to a part of the services rendered,
it is not deemed to be controlling on ac
count of the character of the services per
formed and the peculiar relationship that
existed between the parties to the agree
ment. 3. Error by the jury in the computation
of the number of months of service, the
value of the services per month having
been determined, and there being no sub-
. stan tin! dispute ns to the period of the
(ervicci. los not indicate prejudice on the
part of the jury nor prevent a correction
of the error by a remission of the excess
awarded.
All ttie Justices concurring.
A true co
Attest: T. A. VALENTINE,
Seal.) Clerk Supreme Ccurt
No. 21, AM.
Kethl Rober Orazem, Appellee,
vs.
C. A. McNeill, Appellant.
Appeal from Crawford County.
UEVEHSED.
Syllabus. By the Court. Mason, J.
Assuming that one who has been de
frauded of money has the privilege of
maintaining an action against the wrong
doer upon an implied contract to restore It,
arising out of the fact that of the fraud,
recovery being dependent upon proof
thereof, such a proceeding unless begun
within two Years of the discovery of the
fraud Is barred bv the statute requiring
"actions for relief on the ground of fraud,"
to be brought within that period, not
withstanding that the limitation fixed for
an action upon a contract not in writing,
express or Imntlcd, is three years.
Johnston. t J.. Rurch. J.. Porter, J.,
Vst. J., and Dawson. J., concurring.
Mnrshnll. J., dissenting.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
No 21. 42.
The Anltman Taylor Machinery Com
pany, a corporation. Appellant,
vs.
P. P. Jones, snd Sue M. Jones. Appellees.
Appeal from Kingman County
liEVEUSED AND KEMANDED.
Svllahus. Ity the Court. IMrter, J.
In a replevin action by a chattel Mort
gagee, held, on the special findings and ad
mitted facts, that certain written agree
ments, extending iotes and chattel mort
gages and waiving all claims for damages
arising out of the sale and purchase of
farm machinery, ore binding upon defend
ants, and the claims that they were signed
bv one of the defendants without having
read them, when he had an opportunity
to do so and was not prevented in any way
by the other party. Is of no avail.
'All the Justices coucurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court.
No. 21.W2.
The Peoples National Bank of Kansas City,
Kansas. Appellee,
vs.
C. M. Nlquette, et a... Appellants.
" Appeal from Wyandotte County.
(Division No. 2.)
AFFIRMED.
Ktrll Bv the Court- Burch J.
The evidence relating to the coming Into
the jurisdiction of the Wyandotte county
district court of one of the defendants, the
commencement of the action, and service of
process on him there, and the subsequent
service of process on the othtr defendants
in Finney county, considered, and held, no
abuse of Judicial process ormrrea. 1
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.), Clerk Supreme Court
No. 21.637.
H. T. White, Appellant
vs.
Huey K. Green and Frances Mae Green,
Appellees.
Appeal from Chautauqua County.
AFFIRMED.
Syllabus By the Court Johnston, C. J
An oil and gas lease granted to the
lessee, his heirs and assigns tbe right to
explore for oil and gas for a period of
five years and as long thereafter as oil and
gas Vere produed. with the right to the
possession of so much of the surface as
was needed for the laying of pipe lines,
the erection of tanks, buildings and other
structures for the production, care and
transportation of the product, the lessor to
receive one-eighth of the oil obtained and a
certain amount for the gas taken from the
premises, and It was provided that If a well
was not drilled ns specified the lessee was
to pay -T0 for each ninety-day period of
delay.- Other stipulations gave the lessee
the right to remove machinery and pro
vided for a surrender of the lease on cer
tain conditions.. Held, that the agreement
imrpnrtw to transfer an Incorporeal
hereditament, and. being oral, was within
the statute of frauds ana tnererore in
valid. I
AM the Tit st lees concurring.
A true copy. '
Attest: P. A. VALENTINE.
Seal. Clerk Supreme Court
No. 21.633.
International News Service, a Corpora
tion, Appellant,
vs.
The Ganette Trlntlng Company, a Corpora
tion. Appellee.
Appeal from Repo County.
AFFIRMED.
Syllabus. By the Conrr. Dawson. J.
The property of a printing establishment
was repeatedly mortgaged and repeatedly
sold"-under contracts which named certain
assets and also included:
"Anv and all other articles of any kind
formerlv connected with the Gazette Print
ing Company, . . - also the circulation,
good will. ... all assets of every kind
and nature, it being the Intention to
mortgage the entire Gazette Printing plant
and evervthlng connected therewith, and
appertaining thereto, whether mentioned
herein or not.
One of the assets was a newspaper, and
the sucewsive mortgagors and vendors
surrendered the newspaper along with all
the other property to successive purchas
ers s part of the property mortiraed and
am w-M that the language of the con
tracts for mortgaging the property and for
selling if. nnn rne operanve inrerprPTarmn
placed thereon bv the mortgagors and ven
dors Justify a f'nd1nr and judgment that
he newspaper franchise w included In
the assets pledged to tbe mortgagees . and
Included in the property acquired by the
vendees.
Ail tbe Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court.
No. 21.650.
Charles Starkweather, Appellant,
vs.
G. A. Dunlap and P. Ashlund, Partners,
etc.. Appellees.
Appeal from Flnnev County.
KEVEttSEtl.
Syllabus. By tbe Court. Dawson, J
The facta and the law concerning an
employer's liability for injuries sustained
by a workman who was working in a
sewer trench and who feared that a cave-
in might occur but remained and worked
assurance that the place was safe and
upon his promise that braces to insure Its
safety would be forthcoming on the next
day, considered, and HELD that the case
was one for a Jury's consideration, and
that an order directing a verdict was er
roneous. Alt the Justices concurring.
A true copy.
Attest: I. A. VALENTINE.
I Seal. J Clerk Su pre in a Court
No. 21.647.
T. A. Henderson, Plaintiff,
vs.
Eugene L. Bell, et al.. Defendants,
Eugene L. Bell, Appellant,
John 3. Buchanan and Lincoln Buchanan,
Appellees.
Appeal from Atchison County.
JUDGMENT MODIFIED.
Syllabus. By the Court. Marshall, J.
A contract giving an option to purchase
real property, without limiting the time
within which the purchase may be made,
is void for the reason that it violates tbe
rule against perpetuities.
All the Justices coucurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.646.
David O. Cole, et al.. Appellees,
vs.
1 J. H. Butler, Appellant.
Appeal from Chautauqua County.
AFFIUMED
Syllabus. By the Court West J.
1. The lease described in the opinion is
held not to be void for want of considera
tion. 2. The plaintiffs title is such that they
may require the fulfillment of the express
and Implied conditions of the lease.
3. An implied condition was that opera
tions should be begun within a reasonable
time
4. Failure to begin operations for thir
teen of the twenty years' duration of the
loaNo with a failure to show any intent
or purpose to operate, entitle the plaintiffs
to a decree of cancellation.
5. The Judgment for damages snd at
tornev's fee was In accordance with the
statute, (f 4994, Gen. Stat 1915.)
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,645.
A. P. Rudy, Appellee,
vs.
L. H. Headley. Appellant
Appeal from Clay County.
AFFIRMEZ.
Svllabus. Bv the Coiir. Porter. J
L There was no abuse of discretion in
refusing to permit tbe Jury to inspect the
defendant's automobile to discover whether
it bore marks of an accident which occur
red several months before the trial.
2. The closing argument of counsel for
the plaintiff as to the meaning of Sec. 507.
Gen Stat. 1915. imposing certain duties
upon tbe driver of sn sutomobile in pass- 1
ing another on the highway, is held hot to
be unreasonable or unfair.
3. The fact that one of the Jurors, during
a recess of the conrt, went and examined
defendant's ear and stated in the Jury room
that he found certain marks upon It. Is
held under the facts in this case not to
have furnished grounds for a new trial.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No, 21.630.
T. D. Ham p so ii, Appellee,
vs.
M. T. Spong. Appellant
Appeal from Wilson County. -AFFIRMED.
Svllabus. By the Court Burch, 3.
Instructions to the Jury considered and
held to be adequate and correct snd the
proceedings held to be free from error In
other respects.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.629.
The State of Kansas, Appellee,
vs.
William Ewing. Appellant
Appeal from Itiley County.
AFFIRMED.
Svllabus. By the Court Burch. J.
Assignments of error relating to evi
dence and instructions considered, and
held to be ill founded
Al! the Justices concurring.
A true copy.
Attest: D. A!. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.418.
Amos E. Gil more, Appellee,
vs.
The Monarch Cement Company, Appellant
Appeal from Allen County.
Syllabus. By the Court Johnston, C. J.
L The special findings of the court
( awarding compensation to an injured work
tnnn interpreted and found not to be In
consistent with the judgment rendered.
2. Also held, that such findings do not
show an abuse of discretion by the court in
awarding compensation In a lump sum.
All the Justices concurring.
A true copy.
Attest: P. A- VALENTINE, '
(Seal.) Clerk Supreme Court
No. 21,052.
H. A. Swandt, Appellant
vs.
O. C. Ballentlne et al.. Appellees.
Appeal from Pottawatomie County.
Opinion Denying a Rehearing.
Syllabus. By the Court. Dawson. J.
On appeal the supreme court's jurisdic
tion is exclusively appellate. for the con
sideration and determination of errors
alleged to have been committed in trial
courts, and error cannot be predicated on
matters not presented to the trial court;
and, to uphold the constitutionality of sec
tion 580 of the civil code, such Interpreta
tion of it must be given ns will not con
found the appellate Jurisdiction of the
supreme court with its original jurisdic
tion. All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Se:.l.) Clerk Supreme Court
No. 20.975.
Theodore O. Loveland, et al.. Partners as
Brenard M fg. Compnay, Appellants,
vs.
Frank P. Klbbey, Appellee.
Appeal from Geary County.
MODIFIED.
Syllabus. By the Court Mason, J.
1. Articles were sold to a retailer to be
nsed as premiums in s voting contest, the
vender undertaking that as a result the
buyer's business should increase to a stated
amount provided he carried out the contest
plan and promptly met bis own obliga
tions under the contract Held, that un
der the language of the agreement the
omission of the buyer to pay at maturity
the notes he bad given for tbe goods did
not result In a forfeiture of bis rights un
der the part of the agreement with regard
to the amount of business done.
2. The verdict and Judgment held to
have been for a wrong amount but under
the circumstances to have constituted an
adjudication of the question submitted to
the Jury.
3. A new trial ordered upon a particular
issue at the option of the defendant
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
I Seal. J Clerk Supreme Court
No. 21.62S.
Gilbert H. Frith, Appellee,
vs.
James Thompson. Appellant
Appeal from Lvon County.
AFFIRMED.
Syllabus. By the Court. Johnston. C. J.
1. Where parties join in a business ad
venture of a partnership character and,
after th have proceeded for a rime and
property rights have been acquired, one of
the partners who holds possession of the
rights snd assets of the firm wrongfully
ousts or excludes the other under a claim
of sole ownership, snd the dealings between
them are not numerous nor difficult of
settlement the other may maintain an
ordinary action at law to recover for the
wrongful deprivation and conversion with
out having an accounting in an equity ac
tion. 2. The exclusion of testimony offered
with a view of showing the value of oil
leases obtained and held by tbe defendant,
to the effect that stipulations bad been
made when the leases were executed which
were not included in the leases and which
contradicted their terms, is held not to be
error.
3, The rejection, of testimony tending to
show the expenses Incurred by defendant
In obtaining the leases is held to be with
out material error u ider the circumstances
of the case.
All tbe Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21,417.
O. H. Black, Appellee,
The Wichita Union Terminal Railway Com
l pnny. Appellant
Appeal from Sedgwick County.
REVERSED.
Syllabus. By the Court. Dawson, 3.
Where the undlsuuted evidence and the
special findings of the jury show that a
written contract for the settlement, release
and satisfaction of a claim for damages
was executed by the claimant with 11111
knowledge and understanding that tbe
question of his future employment . could
not be considered in negotiating and ef
fecting the contract of settlement, an oral
promise of an agent of the wrongdoer as
suring the claimant of future employmnet,
which promise was given to induce claim
ant to make the contract but which was not
kept nor intended to be kept, la insufficient
to vitiate the contract of settlement
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,415.
Mrs. D. E. Campbell, Appellant,
vs.
The Board of County Commissioners of the
County of Reno, et al.. Appellees.
Appeal from Reno County.
AFFIRMED.
Syllabus. By the Court Marshall, J.
L A person who is out on bail under a
criminal charge In one county, and who is
arrested by a constable from another
county under 1 criminal charge filed in the
latter county, cannot be taken from the
custody of the constable without his con
sent, by the sureties on the bsil of the
person charged, and be surrendered to the
sheriff of the first county, so aa to release
such sureties.
2. Under tbe circumstances mentioned In
the first paragraph of this syllabus, after
being released from the charge filed against
him in the latter county, it la the duty of
such person to appear at the proper time
for trial in the first county, and it is tbe
duty of the sureties on his bail to produce
him for that trial.
3. It is not error to refuse to submit to a
Jury special questions which would not, if
answered, elicit any fact that could affect
the judgment to be rendered.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,323.
Eliza Watson, et al.. Appellees,
vs.
Mrs. C. H. Williams et al.. Substituted for
Sarah E. Jones, deceased. Appellants.
Appeal from Rooks County.
AFFIRMED.
Syllabus. By the Court Burch, J.
A landowner died after his land had been
sold to the county for delinquent taxes.
Subsequently a tax-sale certificate was
Issued and assigned, and a tax deed was
issued and recorded. A few days later one
of the heirs took a quitclaim deed from
the, tax-deed holder. Held, the purchase
of tbe tax title amounted to a redemption
which inured to the benefit of the purchas
er's co tenants.
All the Justices concurring
A true copy.
Attest: P. A. VALENTINE.
(Scat) Clerk Supreme Court
No, 21.182,
Rose E. Jones, Appellee,
vs.
The Citizens State Bank, Appellant
Appeal from Wilson County.
AFFIRMED.
Syllabus. By the Court Porter, J.,
L In an action against a bank to recover
upon a certificate of deposit testimony of
oral promises alleged to have been made
to the bank by plaintiff authorizing the
money represented by the certificate to be
held as collateral security for promissary
notes given to the bank by her husband
and others, is held incompetent under the
Statute of Frauds.
2. The provision of the Statute of Frands
which prohibits the bringing of an action
upon a promise to answer for the debt
default or miscarriage of another, unless in
writing, applies with equal force to a de
fendant D(1 verbal contract which Mm
within the statute cannot be enforced
directly ns a defense to a demand other
wise legal and Just
3. The fact that plaintiff was a stock
holder in the corporation to which the bank
loaned the money represented by the notes
ntd not make her liable noon tbe notes.
nor constitute a defense to her action upon
the certificate of deposit.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.255.
The State of Kansas, Appellee,
vs.
Pon Van Wormer. Appellant
Appeal from Hamilton County.
AFFIRMED.
Syllabus. By the Court Mason. J
1. In a prosecution for a homicide which
resulted in a conviction of murder in the
first degree the court instructed the Jury
that In order to convict they must find, in
addition to the other elements constituting
the offense, that the defendant killed the
sheriff while he was resisting arrrest by
him under a warrant charging a felonv.
Held, that under the conditions shown tbe
plea of self defense was not available to
the defendant if be killed the sheriff while
resisting arrest and Inasmuch aa the ver
dict necessarily Implied a finding (if the
instructions were followed) that such was
the case, the omission to instruct upon
self defense was not prejudicial, unless
upon the theory that by reason thereof the
jury may have been led to disregard the
Instruction referred to.
2, Held that in such a case the omis
sion to instruct nnon self defense, snd imon
second degree murder and manslaughter.
noes not require a reversal, oecause upon
the whole record the verdict appears to be
based upon satisfying evidence, and there
seems to be no substantial probability that
ine jury acteu in disregard ot me instruc
tions given. The fact that a constable of
the same county had already undertaken
to take the defendant In custody on
charge of disturbing the peace, and to
deputize two by -slanders to guard and
protect him, did not affect the right of rhe
sheriff to arrest htm even If tbe conduct
of tbe constable and his assistants was in
good faith, and the evidence hardly leaves
a oouDi mac 11 was coiiustve.
3. In such a case it is not error to In
struct that In every case where one per
son has a right to arrest or restrain anoth
er the other can have no right to resist
since the two rights cannot co-exist: and
where a person thus having the right to
arrest another is killed 4y the latter In
the resistance of such arrest the resistance
Is a crime and the killing is a homicide
In the commission of an unlawful act No
right of self-defense can arise out of such
circumstances." Such instruction does not
negative the right to resist the use of un
due force by tbe officer, and under the
evidence In thla case it does not seem like
ly that the Jury so interpreted It.
4. The statute authorizing notaries pub
He to "administer oaths pertaining to all
matters wherein an oath is required quali
fies them to take the affidavit In verifica
tion of an information in a criminal case.
5- Upon the bearing of a motion to quash
a Jury panel In a felony case evidence of
the connty clerk was used which was taken
at bis house on account of his sickness,
the defendant not being present The at
torneys for the defendant were invited to
attend the taking of the testimony, out
declined. No request to be allowed to be
present was nade in behalf of the de
fendant nor was any objection made to
tbe proceeding until after the testimony
1 had oeen read hi evidence, and argument
on the motion bad been Invited by the
court Held, that the defendant's rights
to be present at the taking of tbe testi
mony were waived.
6. A motion for a change of venue on
the ground of prejudice of the Judge held
to have been properly overruled.
7. A stipulation was made by the county
attorney for the taking of depositions in
behalf of tbe defendant in a murder case,
a waiver of tbe regular procedure being
included. An attoruey designated by the
attorney general to conduct the prosecution
gave notice tlrat while he would try to- be
represented at the taking of tbe deposi
tions. If he failed in that be would chal
lenge the validity of the stipulation, on the
ground that t was collusive and unau
thorized. The depositions were not taken,
tbe defendant's couusel giving as a reason
that they could not be filed one clesr day
before the time and therefore could not
be used except by agreement. A contin
uance was asked on behalf of tbe defend
ant to enable him to procure the evidence.
Held, that it was a fair question for the
trial court whether it should be granted,
and its refusal did not constitute error.
8. Rulings of the trial court sustaining
the competency of challenged jurors held
not to have been erroneous.
9. Rulings admitting evidence held not
to have been constituted reversible error.
10. Rulings excluding evidence held not
to have been prejudicial.
11. The argument of counsel for the
prosecution held not to have so far trans
gressed tbe proprieties as to require a new
trial.
All the Justices concurring.
. A true copy.
Attest: P. A. VALENTINE,
(Seal. Clerk Supreme Court
No. 21,682.
S. S. Hawks, Appellee,
vs.
The Atchison, Topeka & Santa Fe Railway
Company, Appellant.
Appeal from Sedgwick County.
(Division No. L)
AFFIRMED.
Syllabus. By the Court Dawson, J.
Where a resident lot-owner's only means
of ingress and egress to bis garage situated
at the back part of his lot is through an
alley which is totally obstructed by a rail
way company in tbe operation of its cars
on a railway track In the alley and in
permitting Its cars to stand in the alley,
such person may maintain an action for
damages, and in such action it is no ex
cuse for the railway company that the
railway track itself was properly con
structed and that It had obtained per
mission from the city to construct it
AH the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,683. .
The State of Kansas, Appellee,
va.
Joseph Flaherty, et ah, Joseph Flaherty
and James Daniels, Appellants.
Appeal from Wyandotte County.
(First Division.)
AFFIRMED.
Syllabus. By the Court Marshall, 3.
i. ad lniormation wnicn cnarges mat me
defendants conspired to obtain the prop
erty of another with intent to steal the
same ; that tney ootainea possession
thereof by inducing the other to bet $5,350
on a horse race; and that they made way
with, secreted, and stole the $5,350, charges
sn offence under section 3448 of the Gen
eral Statutes of 1915.
2. There was evidence to show that the
defendants, Flaherty and Daniels, were
guilty or participating who meir to-uc-fendants
In conspiring to steal, and in
stealing, the property of George Roth.
All the justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.680.
R. W. Kays and Laura J. Kays, Appellants,
vs.
A. A. Little (snd H. V. Foster), Appellee.
Appeal from Greenwood County.
AFFIRMED.
Syllabna. By the Court Marshall, J.
A Judgment of a trial court refusing to
cancel a gas and oil lease for failure to
pay rentals at a stipulated time, win not oe
reversed where the lessee remits the
amount of the rental by registered letter so
that it will reach the place or payment rive
days before the time provided for the pay
ment and the remittance fails to reach that
place in time oecause or oeiay in tne roans.
and where, because of other and additional
circumstances, it would be inequitable and
uniust to cancel tne lease.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.678.
The Young Men's Christian Association,
Appeiiee,
vs.
C. N. Sentney, Appellant
Appeal from Reno County.
AFFIRMED.
Syllabus. By the Court - West J.
The controversy presenting merely a
question of fact which waa determined
upon sufficient evidence, there being no
error In respect to the instructions, it is
held that the verdict must stand.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seat) Clerk Supreme Court
No 21,677. i
B. F. Bush, Receiver, etc, et aL, Appellees,
vs. I
The Chicago Great Western Railway Com- 1
pany and The Leavenworth Terminal
Railway and Bridge Company, Appel
lants. Appeal from Leavenworth County.
AFFIRMED.
Syllabus. By the Court Dawson, J.
1. Where the owner of a railway bridge
entrusts a railway company with the
management of the bridge signal system
and charges the latter with the duty of
keeping tbe signal system in good condi
tion, the owner is liable for the managing
railway's reasonable expenses in relocating
the signals which are a menace to the lives
of trainmen; and this liability exists al
though tbe signal system was installed
many yea rs ago accord in g to the best
methods then known end with the ap
proval of the managing railway's chief
engineer.
2. The opinions of experienced railway
men touching the "good condition' of a
set of signals set so close to a railway
track as to Imperil the lives and limba of
trainmen are competent evidence in an
action to recover a claim for expenditures
incurred in keeping a railway bridge signal
system in good condition.
All tbe Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,670.
L. F. Shuhmacher, Appellant,
vs.
3. C. Lebeck, Appellee.
Appeal from Meade County.
AFFIRMED.
Syllabus. By the Court Mason. J.
1. A letter from the owner of land in
reply to an inquiry as to his price there
for, stating terms of sale, tbe person ad
dressed to make his commission from the
buyer, does not amount to an offer to sell
tbe land to such person, but merely makes
him the owner's sgent to find a purchaser
on tne terms namen. Ana sucn agent can
not by reporting that be has sold the land
on such terms, compel its conveyance to
himself.
2. An attempt by the agent In such a case
to purchase tbe land for himself, without
disclosing to his principal that be is the
buyer, is witntn tne rule which rorbids a
selling agent to buy for himself, notwith
standing be was to receive as a commission
whatever price tbe land brought over a
fixed sum.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.675.
James A. Baird, Appellee,
vs.
The Sallna Northern Railroad Company,
et al.. Appellants.
Appeal From Mitchell Connty.
REVERSED.
Syllabus. By the Court. Burch, J.
A contract made in consideration of the
giving of subscription notes whereby a
railroad company agrees permanently to
establish and maintain on the subscriber's
land a passenger and freight depot and
station, stockyards, sidetracks, and other
shipping facilities, and to refrain from ever
establishing or maintaining similar struc
tures or facilities within competing dis
tance of the subscriber's land, is void as
against 'public policy, and is void as
against policy Irrespective of the provision
not to establish other stations. ,
All the Justices concur ring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.67L
' Addison D. Flynn, Appellee,
vs.
F. P. Hoi len back. Appellant
Appeal from Johnson County.
AFFIRMED
Svllabus. Bv tbe Court. Porter. J.
1. In order to recover exemplary
damages, it la not necessary that the peti
tion allege In so many words that the
wrongful acts were committed with wan
tonness. recKiessness. or malice, if the tacts
sta ted show sucb gross negli gence a s
amounts to wantonness or a reckless dis
regard of plaintiff's rights.
'Z. The petition ana evidence beia suf
ficient to justify an Instruction submit
ting to tbe Jury the question of exemplary
damages.
3. Upon the facts ststed in the opinion it
Is held there was sufficient conflict In the
evidence to justify the court In submitting
to the lurv the Question of nrobable cause
for causing the plaintiffs arrest
4. In an action to recover actual ana
exemplary damages because defendant
drove nis automooiie against piainiiix s
vehicle. Injuring him and his property,
there was joined a cause of action for
malicious prosecution in causing plaintiffs
arrest and imprisonment on the charge of
having taken, carried away and used de
fendant's automomible "with intent to de
prive tbe owner of the. temporary use
thereof, against the owner's will. (Gen.
Stat 1915, Sec. 3460.) There waa evidence
to sustain both causes of action, and the
jnrv returned a general verdict in plain
tiffs favor. Held, that defendant, having
failed to reonest findings showing upon
which cause of action the verdict was bssed.
(and for other reasons stateri tn the opin
ion) has made no affirmative showing of
error.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.969.
Westye Monaon Revived in the Name of
Elizabeth Appleros, as Administratrix,
etc.. Appellee,
vs. '
A. C. Battel le. Appellant
Appeal from Franklin County.
AFFIRMED.
Syllabus. By the Court. Johnston, C. J.
L The statutory provision authorizing
the filing of a petition for a new trial
within one year after the rendition of
judgment where the grounds conld not be
discovered within three days after a ver
dict, report or decision in the caBe-was
rendered, implies the existence of some one
that has a right to sue and some one who
may be legally sued; and where the plain
tiff who recovered a Judgment died before
a petition for a new trial was filed by the
defendant under section 308 of the civil
code, and before a representative of the
estate of the deceased was appointd, the
petition was n nullity.
2. Vitality is not given to such a petition,
nor should it be entertained, upon the is
sua nee of process thereunder and the ser
vice thereof nnon the administrator of tbe
estate of the deceased more thsn one year
after the rendition of the Judgment
All tbe Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,685.
John Carlson, Appellee,
vs.
The Mid-Continent Development Company,
Appellant
Appeal from Wyandotte County.
(Division No. 1.)
AFFIRMED.
Syllabus. By the Court. Johnston. C. J.
1. A gas company built Its pipe-line in
a highway more than twelve inches above
the ground lu sucb a way as to constitute
a nuisance, and by reason of the, defective
construction a horse driven by the plaintiff
caught his feet under tbe pipe and In
struggling to extricate himself overturned
the buggy, throwing the plaintiff out and
Injuring him. The prpe-llne and other
property of the defendant passed into the
hands of a receiver after the line waa built
and was in his possession when the injury
was sustained by plaintiff, but had been
restored to the company before tbe trial of
tbe action begun by plaintiff against the
company to recover damages for the Injury.
Held, that the company having negligently
created tbe nuisance which caused the In
Jury, it Is liable although the pipe-line was
In the control of the receiver when plain
tiff suffered the Injury.
2. The building of such a structure was
not only negligence but It waa a wrong
which rendered tbe party creating it liable
without proof of negligence, and the fact
that the court lQ Its Instructions placed
the burden upon the plaintiff of proving
negligence did not materially prejudice the
defendant
3. The admission of testimony that the
receiver moved and burled the pipe-line
after the accident did not. under the cir
cumstances, constitute prejudicial error.
4. The refusal of the court to strike out
tne testimony or a witness upon tne alleged
grounds that it was contrary to all of the
evidence on the question and untrue, is
not error.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE,
tieal.) Clerk Supreme Court
No. 21,667.
Arthur F. Atkinson, Appellee,
vs.
James W. Lusk, et al.. Appellants.
Appeal from Cherokee County.
REVERSED.
Syllabus. By the Court Mason. J.
A person approaching a railroad cross
ing in a horse drawn vehicle at a moderate
speed, who is Injured as the result of bis
attempt to cross in tront or sn approach
ing motor car. which he Is prevented by ob
structions from seeing until he Is within
twenty feet of the track, but which la visi
ble to him from that time on, is chargeable
as a matter of law with contributory neg
ligence. The ordinary rule Is not affected
by tbe fact that the motor car ia lower
tnan a locomotive, a passenger or a box
car. so long at it is high enough to be
seen.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.661.
Swader. Appellant
Cora J.
The Kansas Flour Mills Company, a cor
poration, and R. W. Hoffman Appellees.
Appeal from Dickinson County.
REVERSED.
Syllabus. By the Court Dawson, J
1. The title, "An Act to provide compen
sation for workmen injured In certain
hazardous industries.' Is brosd enough to
Include compensation for dependents of a
workman fatally Injured, and tbe latter
tonic is germane snd pertinent to the main
subject covered by the act and such act
noes not violate the constitutional provis
ion forbidding the inclusion of more than
one sunject in one act or the legislature.
2. Section 5 of the Workmen's Com pen
satlon Act gives an Injured employe 1
statutory action or proceeding against his
employer for compensation and also for
damages against a wrong-doing third party
causing bis Injuries: and where the person
entitled to maintain such statutory action
Is not estopped by her acceptance of com
pensation already provided for her. nor by
ber participation in arbitration proceedings
to determine her compensation, nor by oth
er acts constituting rauncation or acqui
e see nee. she may prosecute her action
against both the employer and the wrong
doing third party, and she Is not required
to choose between the compensation allow
ed or which may be allowed and the dam
ages which she may rr.-over until her ac
tion is tried and determined, but she is
not entitled to recover Doth damages and
compensation.
All tbe ..11 stlces concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21,660.
C. J. Bask, Appellee,
The Atchison, Topeka and Santa Fe Rail
way company. Appellant.
Appeal from Montgomery County.
REVERSED
Svllabus. By the Conrt. Marshall. J
A railroad engineer cannot recover dam
ages zor injuries sustained rty mm tn
railroad collision brought about bv his 1
negligence in violating tbe rules of his
company made for the government of his
conduct, where be knew of the physical
conditions In time to have prevented the
accident if he had obeyed the rules.
Ail tbe Justices concurring.
A true copy.
Attest: P. A. VALENTINM,
(Seal.) . Clerk Supreme Court
No. 21,665.
The Farmers and Merchants Bank, Appel
lee.
va.
Sarah E. Pondellnger, Appellant
Appeal from Reno County.
AFFIRMED.
Syllabus. By the Court Burch. J.
L A person Indebted to the defendant
In civil action for tbe recovery of money.
on nonnegotlable promissory notes not yet
due, ana nayonie on tne napprning or cer
tain contingencies, is subject to garnish
ment 2. A separation agreement, whereby . r
a consideration a wife releases her claim on
her husband s property and to his support,
does not create a trust and the considera
tion is not alimony.
All the Justices concurring.
A true couy
Attest :
(Seal.)
P. 'A. VALENTINE,
Clerk Supreme Court
No. 21,656.
Herbert G. Back man Appellee,
vs.
Mrs. John Ash. Appellant
Appeal from Shawnee County.
(Division No. 2.)
AFFIRMED.
Syllabus. By the Court West. J.
1. The petition alleged that the judg
ment sued on was rendered by a justice
in an action "wherein said justice of the
peace had Jurisdiction of the subject mat
ter under the laws of the State on Missouri
and jurisdiction of the defendant." The
inmrpr urerreri that there waa no statute
authorizing such Judgment to be rendered.
The reply was a general denial. Held, that
in the absence of a demurrer or motion to
make the petition definite and certain it
was proper to receive in evidence irrutiu
statutes 01 Missouri autuurisiug iuc juu
mpnt- rendered.
2. A request for a witness to state
the fact a a to a certain choice or election
did not call for hearsay opinion or con
clusions or for evidence not the best, and
the answer that the plalntlfrs attorney
elected to take a money judgment instead
of tbe goods levied on was not oojecuon
n hi a a s hearsa v.
3. Record examined and found to present
no material error in respect to instruc
tions.
All the Justices concurring.
A true copy. '
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.242.
The Brewster State Bank, a corporation.
Appeiiee,
vs.
N. V. Johnson, .Appellant
Appeal from Thomas County.
REVERSED.
Syllsbns. By the Court West. 3.
Tbe verified answer and cross petition
averred that the rote sued on was given
for m tractor on condition that it should
work successfully, and Its failure so to
work. The evidence or tne aereuaant ou
whom the burden of. proof was placed
tended to support such averment A de
murrer to thla evidence was sustslned snd
judgment was rendered for the plaintiff
without sunmitung tne matter io mc jury,
Held, error.
All tne justices evneumag.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21.881.
L. P. Cornelius, Appellant
va
W. E. Robson, Appellee.
Appeal from Crawford County.
AFFIRMED.
Kviihn By the Court West J.
May 8, 1917, defendant resigned his office
of county surveyor end the board of county
commissioners accepted such resignation
nnn Appointed mm county euEiuefr. xuv
appointment was not approved by tbe state
nignway commission. ju iw-Tmug unw
from the defendant of such resignation the
governor commissioned tbe plaintiff county
who filed his official bond. Held
that under the proviso to section 8, chapter
ZO. UWI ot XWl tne Ollice 01 raumy our-
veyor became vacant and neither of the
parties is entitled merew.
Ail tne juiiuv LVU1.U1 . u. . . ,
A true copy. "
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21,622.
Charlotte Thompson, Appellant,
vs.
P. P. McPougal, et aL, Appellees.
Appeal from Cowley Couuty.
APVIKMKU.
Syllabus. By the Court Dawson. X
Where plaintiff negligently permits
break in the natural bauk of a river to oc-
r and exist on ber land, refuses to menu
It mid obstinately and without, excuae re
fuses to permit "her defendant neighbors
to mend it, ner un reasons oie ana inequit
able attitude is sucn tnat ane ia ni eu
titled to an Injunction to restrain the de
fendants who suffer from flood waters
escaping through such break from main
taining a levee on their own land, which
levee is designed oniy to turn oac mm
tha river at a lower point in Its channel
the volume of water which escapes through
the break in times of high water and which
flows therefrom through plaintiffs land
on to defendants lands, although such
leve may delay ana retard tne now 01
such escaping water over plaintiffs land.
All tbe Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seat) ' Clerk Supreme Court
No. 2L5S6.
The State of Kansas, ex rel, Herbert E.
Ramsey, County Attorney of Reno Coun
ty, Kansas, Plaintiff.
vs.
The City of Hutchinson and Clay Town
ship, Reno County, Kansas. Q. P. Don
nelf. Trustee. P. J. Strandberg. Treas
urer. Guy Swanson, Clerk, The Township
Board of Clay Township, Defendants.
ORIGINAL PROCEEDING IN QUO
WARRANTO.
WRIT ALLOWED.
Svllabus. By the Court West,- J.
"Under tbe fscts etsted in the opinion the
presumption tbst a certain ordlnanceaddlng
to the territory of tbe defendant city was
preceded by the requisite ststutory pre
liminaries will not be permitted to be over
thrown by the claim of tbe city to the con
trary. Johnston, C. J., Burch, J.. Mason. .,
Porter, J., and Pawson. J., concurring.
Marshall, J., dissenting.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.529.
The State of Kansas, Appellee,
vs.
W. W. Harris, Appellant
Appeal from Barton County
AFFIRMED.
Syllabus. By the Court Johnston, C. J.
L The testimony of a witness voluntar
ily given iu an Inquisition to determine the
origin of a fire, held by the state fire
marshal or county attorney under an act
relating to protection against fire (Laws
1917. cn. 198), may be used so far ss relev
ant in a prosecution for arson subsequent
ly brought against the witness.
2. Such testimony is not deemed -to be
Involuntary because given In response to
a subpoena or because a witness refusing
to appear or to testify Is subject to pun
ishment, nor yet becsuse of the statutory
provision tht.; no persons shall be present
at tbe inquisition except the officers ami
that tbe testimony taken shall not be dis
closed to any one else.
3. In such sn inquisition a witness is
at liberty to eiairn bis constitutional priv
ilege of refusing to give answers that would
criminate himself, the same as In an ordi
nary action, rnd if be does not claim the
privilege but thereafter in a prosecution
against htm takes the stand and gives testi
mony in his own behalf he may be cross
examined as to statements snd admissions
made in an Inquisition before the fire mar
shal. 4. Testimony thst other acts of arson
were committed by defendant in order to
nhtnln lnsnranrp ahnrtlr before th ef tlnir
of the fire under prosecution, maj be4 ad- f
mitted to prove tne ingredient 01 inteo:
of the crimp charged.
5. Tbe fact that a Jury, sent out to
Inspect certain premises in relation to
which testimony bad been given, viewed
other premises on the way, will not vitiate
their verdict unless It appears thst a party
suffered prejudice by the unauthorized
view.
fL. The Information contained two counts
I based on the same act of arson, one cnarg-
1 ing the burning of a building, and the
other, tbe burning of building and the
property In it to defraud an insurer. The
court ruled that inly conviction could be
had under the Information. Held, that no
error was committed In refusing the mo
tion or uexenaant to require tne prosecutor
to elect upon which count he would rely
for a conviction.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.244.
The State of Kansas, Appellee,
va .
John Long. Appellant
Appeal from Barton County.
AFFIHMRD.
Syllabus. By tbe Court. Marshall, J
l. ine evidence was sufficient to war
rant a verdict of murder in the second de
gree.
A Conviction of mDrr1r In th omml
degree will not be reversed on account of
witnesses not Peine permitted tn roint
vulgar and obscene language used In
tn rents bv tne defeased toimrfi th do.
fendant where the witnesses give the other
language usea in tne threats, repeat tbe
profane language, and describe the vnlcar
and obscene language.
1. un tne cross-exa ml nation of a wit.
ness, it is not error to exclude evidence on
matters not testified to in chief although
iuai eviuenre concerns transactions con
nected witn the racts in controversy.
4. There la no rtvfrilhi rmr in
fusing to permit a witness to give the
substance of a conversation, where the
witness states that be cannot give the
auosiance or tnst conversation.
a. On a murder trial, when th in-nwH
testifies that the deceased had threatened
to kill him: that he believed the deemmed
intended to kill him. and was trying to do
o ; ann mat tne accused was acting in
self defense. It la not error to refuse to
permit him to testify further concerning
what he believed to be the extent of bis
danger.
6. One who is on trial charged with
murder may snow, by general reputation,
that the deceased was a quarrelsome,
turbulent and dangerous man. and may
show that Information of that fact had
been communicated to him: but a tune
ment of conviction will not be reversed for
error In excluding evidence of communi
cation of that Information, where the whole
of tbe evidence established that the de
fendant must have known, at the time of
of the homicide, that the deceased was
quarrelsome, turbulent, and dangerous.
7. It is not error to refuse to reopen
trlsl for the purpose of permitting the in
traduction of evidence, where that evidence
was known to the party making anpllca
tlon, and no sufficient reason is given for
not Introducing the evidence before the
trial closed.
8. On a murder trial, when It becomes
necessary to permit one of the Jurors to go
to his home, 1t is not error for the court
to srnotiT aomonisn tne jurors concern
ing their duty while the one Juror is sway.
and It is not error for the conrt to call the
attention of the jurors to the fact tha
rumors concerning their misconduct have
been in circulation.
9. There was nothing In the argument
of con n sel to Justify a reversal of the
judgment
All the Justice concurring.
A true copy.
Attest: P. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21SfW.
A. J. Meyers and Edith V. Myers, Appellees,
vs.
The Aeme Iron Company, J. T. Woolsey,
K. w. Hydorn and is. A- wewcomo, Ap
pen ants.
Appeal from Wyandotte Connty.
(Division No. 3.
AFFIRMED.
Svllabus. Bv tbe Court Mason. J.
L In an action for damages for frnnd
in the sale of property the evidence Is held
sumcient to sustain rinaings tnat action
able false representations were made by
tbe defendant
2. In sucb sn action there Is a prima
facie presumption that If the property had
been as represented it would have been
worth the s mount paid for it
3. The giving of an instruction that
fraud Is never presumed, bnt must be
proved like any other fact In the case,
namely by a preponderance of the evidence,
and the refusal of an instruction that fraud
cannot be fonnd from mere conjecture and
inference but mnst be clearly proven, are
held upon the entire record not to require a
reversal.
4. Various rulings held not to constitute
material error.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
Seal. J Clerk Supreme Court
No. 21,574.
Mack Smart, Appellee,
va
John Mayer and Joe Gladdls. Appellants.
Appeal from Crawford County.
AFFIRMED.
Svllabus. Bv the Court West, J.
L The refusal to require the Jury to
answer a special question already answered
"We do not know does not constitute or
amount to a withdrawal of such question.
2. Althongh It ds the duty of the court
on request of either party to require such
an answer to be made directly responsive
to the question, the party who does not
mntra Inln In snch reonest can not bv
merely excepting be beard to complain of
such refusal.
3. The Jury found a general rerdlct for
the plaintiff and answered ronr special
questions. "We do not know" which snswere
were In effect adverse to tbe plaintiff. The
defendants on the same day filed a motion
for Judgment on the findings and a motion
for a new trial and on a later day the
former was denied and the latter granted
Held, that there remains no final judgment
or order from which the defendants can
appeal.
All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.643.
The Alton Mercantile Company, a Corpora
tion, Appellant
vs.
The Booth Packing Company, of Baltimore,
Md.. a Corporation, Appellee.
Appeal from Reno County.
AFFIRMED.
Syllabus. By the Court Mason, J.
Where an order for the aale of goods on
time is accepted, but the vendor thereafter
refuses to fill It except for cash, offering
however a dlsrount corresponding to the
difference In time of payment the buyer
cannot refuse such offer and buy else
where, looking to the vendor for tbe differ
ence In price, where the negotiations of the
parties subsequent to the refusal to give
credit resulted in an agreement to all the
details of a cash sale, except that while the
hnrpp tendered his check In exchange for
a bill of lading of the goods, the vendor
refused to shin them unless tne cneca
should be certified.
- All the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.540.
B. F. Abmeyer, Appellee,
vs.
The German-American State Bank and
Theodore C. Mueller. Appellants.
Appeal from Shawnee County,
(Divialon No. 2.)
AFFIRMED.
Svllabus. By the Court. Porter J.
L It Is one of the functions of tbe court
to se that a trial Is conducted properly
snd that verdicts are returned In accord
ance with Its instructions: the rourt Is
not bound to 'eeetve s verdict based upon
an obvious misapprehension of the instruc
tions. 2. The special findings examined and
held to be supported by evidence and suf
ficient to sustain a Jndgment for damages
for fraud and deceit In Inducing tbe plain
tiff to purchase an Interest in a business
which was of no value and In which on
of th defendants waa Interested as a nart
ner at tbe time the representations were
IflfUV ADVERTISE IN THE
Villi TOPEKA STATE JOURNAL?
Because it is the Evening Paper
and people have time to read it I ,
made, which fact was concealed from plain-
3 whn false representations are mado
by the president of a bank to a customer
of the bank whereby he Is induced to part
with his money snd purchase an interest in
an insolvent business, the knowledge of tho
President of the Dana may oe sucn i
ind tbe bank notwithstanding the fact
that he acts also in his own interest.
4. Where, in such a esse part of the pro
ceeds of the fraudulent transaction Is re
ceived nd retained by the bank after it.
has notice or the fraud, it win oe neia w
have ratified the acts of Its president and
to be estopped to deny bis agency.
5. It is held upon the fact' stated !
the opinion that no prejudice to the de
fendants resulted from the action of tb
trial court In requiring tbe plaintiff to
accept the reduced amount of the verdict in
order to avoid the granting or a new inai.
h. mere was no amine ot discretion in
permitting the amendment of plaintiff
pleadings, nor In refusing to direct a ver
dict upon the opening statement of plain
tiff s eon sel.
Al) the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21.498.
Hurley, Appellee,
W. A.
J. W. L. Gray, Appellant, and E. M. Cllne.
Appeal from Linn County.
MODIFIED.
Syllabna By the Court. Marshall. J.
Where one of two makers, by partial
payments, procures an extension of time
for the psyment of a promissory note con
taining a provision tnat tne makers con
sent that the note may be extended without
releasing either of them, or in any way
affecting their liability, the statute of lim
itations rnns, from the first maturity of tbe
nqte. m lavor or tne otner ma iter wno is
not a party to the extension agreement
All the Jnntkes one ur ring.
A true copy.
Attest: p. A. VALENTINE.
(Seal.) Clerk Supreme Court
No. 21,484.
Tbe State of Kansas, Appellee,
va
Roscoe Griggs. Appellant.
Appeal from Seward County.
AFFIRMED.
Syllabus. By the Court. Porter, J.
On the ground that tbe complaint upon
which the warrant was Issued was sworn
to only on Information and belief, the de
fendant filed before the Justice a motion
to quash, and five minutes later gave bond
for his appearance in the district cmrt
and was released from custody. When thM
case was called for trial he stood upon his
motion to qnnsh which wasoverruled. Held,
that by voluntarily giving bond for his ap
pearance be waived the defect In the com
plaint State v. Edwards, fcl Kan. 598, 144
Pac. 1009.)
All the Justices concurring.
A true copy.
Attest: p. A. VALENTINE,
(Seal.) Clerk Supreme Court
No. 21,63a
John Hoffer, Appellee,
vs.
The Emporia Gas ompsny,a corporation.
Appellant
Appeal from Lyon ounty.
AFFIRMED.
Syllabna By the Conrt West, 3.
1. The witnesses as to value of the real
estate and trees Involved were shown to be
competent to testify and no material error
arose by reason of an incorrect date used n
estimating va dines
2. In the light of all the evidence It la
held that the verdict was not excessive i
the result of passion and pre tu dice.
AH the Justices concurring.
A true copy.
Attest: P. A. VALENTINE.
Seal.i Clerk Supreme Court
No. 21.426.
Andrew Miller, Appellant
vs.
Lewis Buss et si.. Appellees.
Appeal from Cowley County.
- AFFIRMED.
Syllabus. By the Court Burch, J.
The evidence examined and hld nnf .a
Impeach tbe certainty of the obligation to
pay the note sued on, but to show that
the note was executed on condition.
ah tne Justices concurring.
A true copy.
Attest: p. A, VALENTINE
Seal.) Clerk Supreme Court
SERVICES OFFERED
Kuttona aHZ2 IMiWn,
800 Tupeka Ait.. Xoiwka, Kan.
IJfSl'RANCB
W WILSON, re. tcruado. ulat Klaaa
lnnurancr. I'liODe I'tn. 211 ( ohiniblnB Ittrtc
FIK. toruado anil Hittomnhlle !niiran.
Chaa T Nk-hnla fdon. !2.
UNDKKTAK1NO
a. W. HOMIillUMCa Pbun, 140.
THE L. M. I'ENWSLL Umlertaklu, Co.,
(MM MJK-MO yiilni-T atrert. T.leDhone IU2.
MOVING
FENIM0RE MOVING
t'AJ.Li ,'HUNb 34L
picrm; fkaminu-
r'ltAMINU. reglhiio,, wa uinklng. tmtuot
ina clnn. hi J l -iill(n 122 12- W "ttt
PERSONAL
DR. J- M. JAMISON. 327 Ma1laoo aL
business nritEtToni
Blrrdea and Motorcycles.
SHAWNEE CYCLE CO.. 114 Eaat Itb it.
Phone 44(10.
Boalne. Collea-ea.
UOUOHEIITV8 UI'KINKSS COLLEOB.
George E. Knughertj. I'rea.. U8 Vat "th.
I'hone .VSfl.
- Blectrle Flxturea. Repalra, Soppllea.
H. B. HOWARD ELKCTKIC A TH
letlc Supply. "HI Kankaa Are. I'honr 1377.
Ere Hpcrlallftt
DR. D. H. PAINE. '18 Kanaaa Ate. Pnona
724.
Expre. lry aad TrnB.fer.
TOPEKA TRANSFER CO. O. H. White,
523 Ailama St. I'ho-i! IBM.
ImDrnnrf.
FALKINER WENT WORTH, gmenl la
anrance. 40U-11 New Euglauii 111. lit. I'booe
51L
lee Cream.
BAUGHMAN 3KOS, 233
Pnone 34(1.
Lincoln 8t-
TOPEKA IT HE MILK CO.
aoa St. Phone M7.
40U-U2-U4 Jack-
Jeweler.
R. H. MOREHOLKB. 427 Uollldar.
1B2S.
Phono
Lmdi, Mortgage., Financial Ageota.
PIONEER MORTGAGE CO 4th floor Mal-
vi ne nirtg. Phone 214
Opfleiena. '
W. J. LEWIS. HOB Kanaaa are. Phone 104S
Photographera.
C. t. BOEUKK. 707 Kanaaa Are. I-bono
3!l9.
Real Estate Dealera. Leana. Inearance.
C B BOLMAR. real eatale. rollei-tkMia. W
Columbian HMg. Hhon. 725 Ring 2.
Sand Dealrre.
TOPEKA HAND CO.. foot Of-Topeka al.
Phone 4.TX
A