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10 THE ADVOCATE AND NEWS. JANUARY fi, ' Published January 5, 1898. . Appellate Court Syllabi. ICansaa Court of Appeals, Southern De partment, Eastern Division. No. m. The Milwaukee Mechanics' Insurance Com pany, plaintiff In error, vs. M. A. Wlnfleld, defendant In error. Error from Neosho County District Court. REVERSED. Syllabus. By the Court. Dennlson, P. J. 1 Where the plaintiff alleges In his pe tition that he has performed all the condi tions precedent on ills part, such allegation Is sufficient under section 122 of the Civil Code to tender the Issue to the defendant. 2. If the allegation that an Insurance company has denied all liability and re fused to pay the whole or any part of a loss, Is true, the Insured Is relieved from the necessity of making proofs of loss, and the company waives the right to Insist upon such proof or to claim the sixty days for payment 3. When the Insured gives notice of his loss to the local agent of the company, and the special agent comes to Investigate the Iosb. and the Inventory of the Insured Is submitted to such special agent and he declines to receive the same, for the rea son that a schedule Is attached thereto containing property for which he claims the company is not liable, the assured must be held to have given sufficient notice, and to have furnished a sufficient Inventory. 4. An Insurance company, by denying Its liability for a portion of the articles con tained In the Inventory of the Insured, does not thereby waive Its right to de mand proofs of loss and Inspection of docu ments or certified copies thereof, If their right to these things Is stipulated In the pohcy. All the Judges concurring. A truo copy. Attest: W. O. CHAMPE, (Seal. Clerk. By E. I Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 194. Liverpool and London and Globe Insur ance Company, plaintiff In error vs. M. A. Wlnfleld, defendant In error. Error from Neosho District Court. REVERSED. Syllabus. By tho Court. Dennlson, P. J. ' The doclslon in the Milwaukee Mechanics Insurance Company vs. Wlnfleld is decisive of the question raised In this case. All tho Judges concurring. A true copy. Attest : W. O. CHAMPE, Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 176. The Chanute National Bank, plaintiff In error, vs. E. I. Crowell, E. J. Nooner and A. P. Glb on, defendants In error. Error from Alloa district Court. AFFIRMED. Syllabus. By the Court. Dennlson, T. J. 1. Where a bank agrees with the mem bers of a partnership, engaged in buying and shipping stock, that it will pay the checks given by any member of said firm, for stock bought by them for said partner ship, and receive the proceeds arising from the sale of such stock to reimburse them therefor, said bank cannot refuse to pay ouch checks, and apply the proceeds aris ing from the sale of such stock to tho in dividual debt of one member of said part nership. 2. If said bank refuses to pay such checka, the check holders can maintain an action upon the contract made between the bank and the members of the partnership for the benefit of such check holders, and can compel the bank to apply the funds to the payment of their checka. AH tho Judges concurring. A true copy. Attest: W. 0. CHAMPE. Seal. Clerk. By E. I Eaton; Deputy. Kansas Court of Appeals. Southern De partment, Eastern Division. No. 214. The Kansas & Colorado Pacific Railway Company, plaintiff in error, vs. , Benjamin Curry, defendant in error. Error from Franklin County. REVERSED. Syllabus. By the Court Dennlson, P. J. A contract to Issue or procure the Issu ance of an annual pass, to be renewed from year to year during the pleasure of the promised, la a divisible contract, and the measure of damage for the breach thereof is the value of the transportation to eucb promisee during the years the breach has occurred, and an action may be maintained by the promisee for only such breaches as have occurred at the time of the com mencement of the action. All the Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment Eastern Division. No. 132. C. F. Drake, et al., plaintiffs In error, vs. Simon Reese, defendant In error. Error from Bourbon County. REVERSED. SyllabUB. By the Court. Dennlson, P. J. 1. Where there Is an abundance of com petent evidence to establish a fact, It Is immaterial error to permit the Introduc tion of incompetent evidence tending to es tablish such fact. 2. The following Instruction does not cor rectly state the law: "Under the Kansas homestead laws It was no fraud on the creditors represented by the defendant, for the plaintiffs In good faith to release the mortgage on the homestead and take In lieu thereof the chattel mortgage on the goods, except In so far as It covered goods purchased by Leeper Bros, from said cred itors at the time unpaid for, but if it did cover any such goods, to that extent It was void," and In this case the substan tial rights of the plaintiffs In error were materially prejudiced by It. All tho Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 201. J. A. Elwell and J. R. South, plaintiffs In error, vs. B. F. Reynolds, defendant In error. Error from Franklin County. AFFIRMED. Syllabus. By the Court. Dennlson, P. J. 1. A warrant void upon Its face confers no authority upon which an ofllcer is jus tified in making an arrest. 2. An officer cannot apprehend a person under a void warrant, which Is read to the prisoner as the authority under which the arrest is made, and then in an action for false Imprisonment be heard to say that he made the arrest upon the information and belief that a felony had been com mitted and that the person arrested Is frullty of Its commission. 3. A Sheriff Is liable for the acts of his deputy, and if such deputy assists in the arrest of a person under a void warrant, and confines such person in the county jail, tho Sheriff is liable in an action for false imprisonment. All the Judges concurring. A truo copy. Attest: W. O. CHAMPE. Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 264. The Burlington National Bank, plaintiff In error, vs. L. II. Scott, defendant In error. Error from Coffey County. AFFIRMED. Syllabus. By the Court. Per Curiam. The record examined; no error appearing, the Judgment Is affirmed. A truo copy. Attest: W. O. CHAMPE. Seal. Clerk. By E. L. Eaton. Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 209. F. C. Moses, as Sheriff, and C. J. Corbln, plaintiffs In error, s. Benjamin F. White, defendant In error. Error from Montgomery County. AFFIRMED. Syllaous. By the Court. Dennlson, P. J. 1. We cannot consider alleged errors which have not been properly excepted to, nor a bill of exceptions not properly al lowed by the court, and where the alleged errors are Insufficent to cause a reversal of the judgment of the District court, such judgment will be affirmed; but none of these questions are grounds for dismissing the petition in error. 3. In an action for an Injunction In which affidavits are Introduced In evidence, and in which no motion for a new trial has been filed, we can only determine whether the conclusions of law and judgment are supported by the findings of fact made by the court 3. A homestead having been once estab lished, it Is a question of intention as to whether It has been abandoned. 4. The Intention may be shown by the acts and declarations of the person claim ing the homestead, but If he leaves It temporarily, Intending to return and oc cupy it as a homestead, the homestead continues as long as the intention remains. All the Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 217. Atchison, Topeka & Santa Fe Railroad Company, plaintiff In error, vs. John Qulnane, defendant In error. Error from Allen County. AFFIRMED. Syllabus. By the Court. Dennlson, P. J. 1. Measured by the doctrine of negligence Het forth In the case of A., T. & 8. F. R. K. Co. vs. Hughes, 65 Ks. 491, and the case of A., T. & 8. F. R. R. Co. vs. O'Mella, 1 Kan. App. 374, the material rights of the plaintiff in error in this case were not prejudiced by the action of the court In giving Instructions 2 to 7 Inclusive, nor by the refusal of the court to give Instruc ions 1 to 6 inclusive as asked for by the plaintiff in error. 3. The special findings of the Jury In this case do not show such a want of negligence upon the part of the plaintiff in error nor such negligence upon the part of the de fendant in error as will entitle the plaintiff in error to a judgment upon such special findings. 3. There Is some evidence tending to prove each fact necessary to support the verdict and judgment in this case. All the Judges concurring. A true copy. Attest: W. O. CHAMPE, Senl. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 256. J. T. Dects, plaintiff In error, vs. A. D. Smith, defendant In error. Error from Crawford County. AFFIRMED. SVllaljus. By the Court. Schoonover, J. 1. A. D. Smith died. His widow, Martha L. Smith, continued to sign her name as "A. D. Smith in most all business trans actions." She commenced this suit In the iiame of A. D. Smith, and was known by this name as well as by Martha L. Smith: Held, "that she Is the real party in in terest; that the record sufficiently Identi fies such party, so far as her name is con cerned, as to disclose a complete bar to a similar action between the same parties." (Clark v. Clark, 19 Kas. 522.) 2. "A general jury finding, based on dis puted facts and conflicting testimony, and being approved by the District court, will not be disturbed.'' (Peacock v. Boyle, 41 Kas. 492). All the Judges concurring. A truo copy. Attest: W. O. CHAMPE, Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 231. Pittsburg Driving Park and Fair Associa tion, appellee, vs. W. A. Swan, appellant. Error from Crawford County. AFFIRMED. Syllabus. By the Court. Schoonover, J. 1. A valid subscription for shares in a corporation Is a written instrument within the meaning of our statutes and may be made the basis of an action. 2. Where the date of payment for such stock Is fixed by the written instrument no demand Is necessary. All the Judges concurring. A true copy. Attest: W. O. CHAMPE, Seal.l Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 230. The City of Weir, plaintiff In error, vs. Mary Herbert, defendant In error. Error from Cherokee County. AFFIRMED. Syllabus. By the Court Schoonover, J. 1. "A party has a right In a Jury trial to have answers returned to specific ques tions as to material facts, and a denial of this right Is error. What is a material fact Is a question to be determined by the court" (City of Wyandotte v. Gibson, 25 Kas. 236). ' X Where the special question is not per tinent to one of the "issuable, essential and principal facts, but runs to one of the minor and subdivided facts into which the principal fact may be resolved," and can not be fairly answered without confusing the jury. It Is the duty of the trial court to refuse to submit it 8. Where there is some competent evi dence to support each special finding of a Jury, they will not be disturbed by this court after receiving the sanction and ap proval of the trial court All the Judges concurring. A true copy. Attest: W. O. CHAMPE. ISeal. clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 249. Missouri, Kansas & Texas Railway Com pany, plaintiff in error, vs. Ira Stelnberger, defendant In error. Error from Neosho County. AFFIRMED. Syllabus. By the Court Milton, J. 1. Railway Company vs, Lycan, 67 Kan. 636, followed as to construction of the pe tition and as to the admission of testi mony roncernlng the value of trees In un apple orchard, In an action for damages by fire alleged to have been caused by the negligence of a railroad company. 2. Where the court failed to Instruct the jury that tho true measure of damages was the diminished value of the land on which the trees were growing, and Buch an instruction was not requested: Held, that failure to so Instruct is not properly as signable as error. 3. Where In such case the testimony fihowa that the witnesses, In making the estimates of the value of the trees de stroyed, regarded them as a part of the realty, this court must Infer, in the ab sence of any finding or Instruction upon that point, that the Jury considered the trees in their actual relation to the realty. 4. This court will not consider the ques tion of the unconstitutionality of a statute of this State after its constitutionality has been declared by the Supreme court. 5. Refusal of the court to give certain Instructions and to permit certain Bpeclal questions to go to the Jury: Held, not erroneous. All thq Judges concurring. A true copy. Attest: W. O. CHAMPE, Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 208. John Tsohumi, E. F. Turner, Jacob J. Hey. Jacob Andcregg, plaintiffs in error, vs. F. G. Hills, receiver, etc., defendant In error. Error from Franklin County. REVERSED. Syllabus. By the Court. Milton, J. 1. Directors of a Kansas corporation have no authority to change the number or par value of the shares of its capital stock as set forth In Its charter. 2. The only provision In respect to any change In the capital stock of a corpora tion after it Is organized is found In sec tion 1171. General Statutes of 1889, which empowers the stockholders to vote an in crease of the amount of its authorized capital, and said section requires a formal certificate of such Increase to be made by tho directors and to be filed and re corded In the same manner as the charter. 3. Where tho directors of a corporation, who had voted to Increase the par value of Its stock, from one dollar each as the charter provided, to five dollars each, thereafter, and without any other authority than such vote, Issued shares purporting to be of the par value of five dollars each: Held, that such shares were void. 4. Where persons, who had taken such Invalid shares of stock and afterwards re turned the same, and received from the corporation the money they had paid for it, under a parol agreement made at the dates of the transactions that such shares were to be held as collateral security for such loans, were sued by the receiver of such corporation, after its insolvency, to recover the money so repaid, and it ap peared that certain debts which were con tracted by the corporation while such stock was outstanding remained unpaid: Held, that such parties were not liable as stock holders of said corporation to the credi tors represented by the receiver, and that It was error to render Judgment against them In favor of the receiver for the amounts returned to them as aforesaid. All the Judges concurring. A true copy. . Attest: W. O. CHAMPED Seal. Clerk. By E. L. Eaton, Deputy. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 230. Betty Donnell, plaintiff In error, vs. Simon Reese and G. W. Katzung, defend ants In error. Error from Bourbon County. AFFIRMED. Syllabus. By the Court- Milton, J. 1. Where the statement signed by coun sel for plaintiff In error to the effect that the case-made contains the evidence offered and given upon the trial of the action, and such certificate Immediately follows and Is on the same page with the Journal entry of the Judgment, and precedes the