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The opinion of the court was delivered by Price, J.: This is an appeal from an order overruling a demurrer to an amended petition following a denial of a motion to make said amended petition more definite and certain by stating therein the true place of residence of the plaintiff. Plaintiff below (appellee) brought suit against the defendant (appellant) in the district court of Wyandotte county and alleged in her petition that she was a married woman; that while en route from Los Angeles, Cal. to Kansas City, Mo., for the alleged purpose of recuperating and recovering from a certain illness and while a passenger on a train of defendant she suffered certain alleged discourteous treatment from various employees of defendant resulting in her permanent mental and physical impairment. The petition contained no allegation whatever as to her residence. The defendant filed a motion to make the petition more definite and certain in nineteen particulars, one being that the plaintiff be required to state her true place of residence. This motion was sus tamed in three particulars and overruled as to the remaining, the ground above referred to with reference to plaintiff’s residence being one of those so overruled. Plaintiff then filed an amended petition substantially complying with the order of the court whereupon defendant filed its motion to make this amended petition definite and certain by stating the true place of residence of plaintiff. In support of said motion defendant submitted an affidavit of one of its counsel wherein he stated that he was unable to find that plaintiff was a resident of Wyandotte county after an examination of (1) the personal property tax rolls of said county; (2) the telephone directories of .the Kansas City area; (3) the city directory of Kansas City, Kan.; and (4) the records of water and light utility service recipients in Kansas City, Kan. In opposition to this motion plaintiff’s attorney filed his own affidavit in which, he stated “that at the time the petition was filed in the above entitled cause, plaintiff was residing with her mother at 928 Armstrong Avenue, Kansas City, Kansas.” This motion to make the amended petition more definite and certain was overruled by the court, whereupon defendant filed a demurrer challenging the sufficiency of the amended petition for the reason that plaintiff had not stated her true place of residence. This demurrer was overruled, following which defendant appealed. In its brief and argument in this court defendant states that— “The question, involved is that of the sufficiency of a petition, from all of the averments of which it is disclosed rather obviously that the plaintiff therein is a nonresident of the county in which the action is brought, and in which said- petition the true place of residence and the correct post office address of the plaintiff is not alleged.” and in our decision we will confine ourselves to this one question. This is a transitory action and plaintiff would not be precluded from bringing it in Wyandotte county even though she were not a resident of such county. G. S. 1935, 60-506, provides that any action against a railway corporation for any liability may be brought in any county into or through which such railway runs. We cannot agree with defendant’s contention that it is “disclosed rather obviously” by the amended petition that plaintiff was a nonresident of Wyandotte county at the time suit was filed. In fact, as we read this petition she could just as well have been a resident of Wyandotte county as of any other county or state. Further, we are not concerned with the question of her residence at the time of the alleged injuries complained of, and in passing, it may be stated that the amended petition is also silent as to that fact. Even though she had been a bona fide resident of California or any other state prior to her taking the train to Kansas City, Mo., it does riot necessarily follow either as a matter of law or from the allegations of her pleading that she was not a resident of Wyandotte county at the time the suit was filed. Our statute, G. S. 1935, 77-201 (23), defines “residence” as meaning the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. Defendant relies heavily on the case of Grolier Society v. Foster, 110 Kan. 306, 203 Pac. 920, but the facts of that case are easily distinguishable from the one under discussion. Without going into detail it is sufficient to say the petition in that case obviously disclosed that the plaintiff was a nonresident and this court properly held that the petition should be made more definite and certain by stating the legal capacity of the plaintiff, that is, whether it was a partnership, a society, individual, corporation, or what — and that its correct post-office address should be alleged. The venue of some types of action is governed by statute as for instance, G. S. 1935, 60-508, which provides that an action for divorce may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition or where the defendant resides or may be summoned. G. S. 1935, 60-1502, provides that a plaintiff in a divorce action must have been an actual resident in good faith of the state for one year next preceding the filing of the petition and a resident of the county in which the action is brought at the time the petition is filed unless the action is brought in the county where the defendant resides or may be summoned. However, that is not this case. G. S. 1935, 60-704, merely provides that the petition must contain — first, the name of the court and the county in which the action is brought, the names of the parties plaintiff and defendant followed by the word “petition;” second, a statement of the facts constituting the cause of action in ordinary and concise language without repetition ; and third, a demand of the relief sought. G. S. 1935, 60-422, reads as follows: “If the plaintiff in any civil action is a nonresident of the county in which the action is brought, the petition shall state the true place of residence, or if a corporation, the principal place of business and the correct post-office address of such plaintiff. If the petition fail to make the disclosure as above provided, the plaintiff, upon motion of any defendant, shall be required to amend his petition, and all costs to that date shall be taxed against the plaintiff. If the plaintiff further fails or refuses to comply with the order to amend, the action may, at the discretion of the court, be dismissed at plaintiff’s cost.” This provision clearly provides that if the plaintiff in any civil action is a nonresident of the county in which the action is brought the petition shall state his true place of residence. Nowhere in our statutes or decisions do we find that such requirement is made of one who is not a nonresident of the county in which the action is brought and we have already stated that there is nothing in the amended petition to indicate that the plaintiff was a nonresident at the time suit was filed. It is only when the plaintiff is a nonresident that the place of residence is required to be stated. We therefore hold that under the facts of this case as disclosed by the pleadings defendant’s demurrer to the amended petition was quite properly overruled and the judgment is affirmed.

The opinion of the court was delivered by Arn, J.: This action is one to set aside a release of defendant’s liability under a hail insurance policy which Merle Topinka, plaintiff, alleged he signed because of fraudulent and false representations made to him by the defendant’s adjusting agent in securing the release, and for recovery of benefits alleged to be due plaintiff' under the policy. The trial below was by a jury. Plaintiff prevailed and the defendant insurance company appealed specifying error of the trial court in overruling defendant’s demurrer to plaintiff’s evidence, in overruling defendant’s objections to the court’s instructions, and in overruling defendant’s objections to plaintiff’s evidence. Plaintiff, a tenant, farmed 90 acres of land in Sumner county upon which he owned a two-thirds interest in a growing wheat crop. On April 18, 1947, he obtained from defendant insurance company a policy of insurance (maximum coverage $1,080) insuring the wheat crop against loss or damage by hail until the crop was harvested, but in no event later than August 15, 1947. A hailstorm swept through Sumner county on or about June 26, 1947, and damaged the wheat covered by the policy of" insurance. Within forty-eight hours thereafter, as required by the policy, plaintiff made his claim by registered mail to defendant’s Wichita office. On June 30, defendant’s authorized agent and adjuster called upon plaintiff and proceeded to investigate plaintiff’s claim of crop damage. Both parties concede the existence of the policy, timely receipt of notice of loss and damage by hail, the negotiations between plaintiff and defendant’s adjuster, and the provisions of the policy restricting its coverage to loss or damage caused solely by hail when such loss or damage equals five percent or more of the crop so damaged. When the defendant’s adjuster arrived at plaintiff’s farm at about five o’clock on the evening of June 30, plaintiff accompanied him to the wheat field to examine plaintiff’s loss. The usual procedure was followed of examining a proportionate number of the individual wheat straws and then determining the percentage of loss by striking an average from the wheat straws believed to be damaged by hail. Although there may be some conflict, there was ample evidence to the effect that a large percentage of the wheat was down and the straws bent and broken. The defendant’s adjuster was apparently successful in convincing plaintiff that much of this damage and many of the broken wheat straws were caused by a condition which he called "crinkle joint” and which he said caused the affected plants or straws to bend or break at the “joint” or “node.” The adjuster explained how wheat straws affected with “crinkle joint” stand erect until a rain and then when wet they bend over or break at the joint, and that hail-injured plants seldom break at the joint. The adjuster did not count those straws he contended were affected with “crinkle joint.” There was also substantial evidence that plaintiff believed defendant’s adjuster, a graduate of the Agricultural College, to be an expert in these matters; that plaintiff had never heard of “crinkle joint” but he believed and relied on what the adjuster told him. There was some testimony by plaintiff that he never thought his wheat was affected by crinkle joint, but taken as a whole, plaintiff’s own testimony and his evidence fairly established that the adjuster convinced him that most of his loss, was due to crinkle joint, and that he relied upon the adjuster’s statements. The adjuster also testifed that he expected plaintiff to believe and rely upon what he told plaintiff and he assumed plaintiff did so. Plaintiff signed the hail-loss work sheet upon which the adjuster’s computations were made, and plaintiff also signed the proof of loss. All other writing was by defendant’s adjuster. There was some testimony concerning additions or corrections made by the adjuster after plaintiff’s signature. In payment of the policy premium, plaintiff had given defendant his personal note. The proof of loss signed by plaintiff and the adjuster stated $36.96 as the amount of loss to be paid, and it bore a notation “credit on note $36.96.” On or about August 8, plaintiff received a statement from the defendant for the balance due on the premium and immediately sent to defendant a money order for $17.57, which included fifty-three cents interest due defendant. It should be added that the evidence adduced -at the trial indicated the hailstorm on June 26 was quite severe; that the hail stones varied from the size of marbles to larger than hen’s eggs; that cedar shingles on buildings were broken, gardens ruined, leaves stripped from trees, and the ground was white. The adjuster said he made no investigation of these conditions to determine the severity of the hailstorm, his only concern being the extent of hail damage to the wheat. Plaintiff testified that he first learned in the latter part of August, 1947, that his wheat was not affected by “crinkle joint.” He learned at that time by talking to neighbors, the county farm agent, the Triple-A chairman, and the officer in charge of the FHA in Sumner county, that there had been no wheat in Sumner county affected by “crinkle joint.” These officials themselves so testified. Upon obtaining this information, plaintiff visited his attorney. It was stipulated at the trial that on August 29 plaintiff’s attorney made a written demand upon defendant for payment of the actual hail loss. This action followed, and as a result of which plaintiff obtained a judgment for $540.84 and for an attorney fee to be recovered and collected as part of the costs. The first contention of the appellant insurance company is that the trial court erred in overruling defendant’s demurrer to plaintiff’s evidence because plaintiff’s evidence was insufficient to set aside the release previously executed by defendant, and that plaintiff’s evidence failed to prove all the elements of fraud necessary to set aside such release. This is not quite the usual case of an insured suing to recover for his loss under the terms of an insurance policy. Here there is an additional feature in that a purported settlement was once negotiated, a purported release executed, and the plaintiff, claiming fraud in the settlement, now seeks to set aside the release. He also seeks recovery under the terms of the insurance policy. Of course the burden of proving fraud is upon the party alleging it — in this case, the plaintiff. It was therefore incumbent upon plaintiff to prove that the representation made to him by the adjuster, relative to “crinkle joint” — and not hail — being the cause of his crop loss, was false. (Ricks v. Parker, 148 Kan. 679, 681, 84 P. 2d 905; Smith v. Webb, 142 Kan. 230, 234, 46 P. 2d 618.) Plaintiff assumed that burden, and the demurrer challenges the sufficiency of the evidence to make that question one for the jury. Both parties in their briefs discuss to some extent the term “scienter”, i. e., knowledge of the falsity of the statement by the party making it or his culpable ignorance and disregard for the truth of such statement when made. In the instant case the jury might well conclude, as it did, from all the circumstances and evidence, that the insurance adjuster’s representation to plaintiff that his crop loss was due to “crinkle joint” rather than “hail” was made under circumstances imposing a duty to know the truth, and that they were made by the adjuster for the purpose of inducing the plaintiff to make a quick and nominal settlement of his crop loss by accepting the adjuster’s statement as true. Be that as it may, was it necessary to plaintiff’s recovery that plaintiff’s evidence prove the adjuster knew his statements and representations about “crinkle joint” were false? We think not. Whether made in good faith, or with fraudulent intent, or merely through over-anxiety to make a good settlement for his insurance company, the fact remains that the adjuster did make the representations with the intention and for the purpose of inducing plaintiff to make a settlement favorable to the insurance company and to part with all right to further recovery under his policy of insurance. Where the insurance adjuster’s-false representations resulted in damage to the assured, the latter’s pain of loss is not eased by the appellant’s averments that the adjuster believed his statements to assured were true at the time they were made. False statements and misrepresentations of fact made by the insurance adjuster to the plaintiff for the purpose of inducing plaintiff to part with his property or property right, when relied upon by plaintiff, are actionable regardless of whether the adjuster knew his statements to be false or regardless of whether he made them in reckless disregard of their truth. (Wickham v. Grant, 28 Kan. 517; Dodd v. Boles, 137 Kan. 600, 21 P. 2d 364; Westerman v. Corder, 86 Kan. 239, 119 Pac. 868; Bice v. Nelson, 105 Kan. 23, 180 Pac. 206, 181 Pac. 558; Becker v. McKinnie, 106 Kan. 426, 186 Pac. 496; Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067; Bank v. Hart, 82 Kan. 398, 108 Pac. 818; Nelson v. Healey, 151 Kan. 512, 99 P. 2d 795; Kurt v. Cox, 101 Kan. 54, 57, 165 Pac. 827.) Plaintiff did not have the burden of proving that the insurance adjuster knew his statement was false when he convinced plaintiff that his wheat crop loss was caused principally by “crinkle joint” and not by hail. See Black on Rescission and Cancellation (2d ed.), sec. 102, pp. 300-303: “Where one induces another to enter into a contract with him by the positive assertion of a fact or state of facts, material to the transaction, which do not really exist, and the other relies thereon, and is misled to his injury, the view of equity is that it would be unconscionable to permit the party making the assertion to retain the fruits of the bargain, which he has thus secured, and therefore he must be held liable as for a species of constructive fraud, even though he may not have known that his statement was false. He is bound at his own peril to know the truth of the matter of which he speaks, and the inquiry is not whether he knew the representation to be false, but whether the other party believed it to be true, and was misled by it in entering into the. contract. Hence, we have the well-settled rule in equity that when rescission of a contract, deed, or other transaction is sought on the ground of misrepresentation of material matters of fact, believed in and acted upon by the party seeking relief, and resulting in his injury or prejudice, it is not), necessary to show that the party making the representations knew them to be false, but he will be held responsible for their falsity, though he spoke without knowing anything about the matter, though he himself was misinformed and mistaken, and even though he actually believed in the truth of what he affirmed. A person may be guilty of fraud by stating that he knows a thing to be so, when he only believes it to be so. A representation of a fact, as of the party’s own knowledge, and which proves false, is, unless explained, inferred to be willfully false and made with an intent to deceive at least in respect to the knowledge professed. This rule has been stated with careful precision by the Supreme Court of Wisconsin as follows: If one in negotiating with another in contractual matters makes a misrepresentation of fact, material to the transaction, to induce the other to act thereon, and such other reasonably does so act, to his prejudice, he may avoid the result on the ground of fraud, actual or constructive, and may have the aid of equity to that end, and it is not a sufficient answer to his claim for the person making the representation to say that he did so honestly, since it is his duty to know whereof he speaks, or not to speak at all as of his knowledge.” (Italics supplied.) Appellant also points out that plaintiff’s petition alleged: “Said statement of defendant’s agent [the adjuster] was false and untrue, and known by the defendant to be false and untrue. . . .” It does not follow that plaintiff must prove this and every allegation merely because they were alleged in his petition. Plaintiffs’ petitions often allege more than can be proved or more than they are required to prove — and such “overpleading” is not detrimental to the plaintiff’s case. The adjuster testified that he expected plaintiff to rely upon his statements about “crinkle joint” and assumed that plaintiff did rely upon them. Plaintiff testified he did believe the statements made by the adjuster and continued to believe them until the latter part of August when he learned that “crinkle joint” had not been the cause of his crop loss; that he trusted the adjuster’s judgment and statements and relied upon them in making the purported settlement of June 30. Upon this entire question of fraud, then, the real factual dispute was as to the truth or falsity of the adjuster’s statements about “crinkle joint” being the cause of plaintiff’s crop damage. As heretofore stated, there was sufficient evidence to take this question to the jury (Gabel v. Hanby, 165 Kan. 116, syl. ¶ 1, 193 P. 2d 239), and a special question upon this specific point was submitted to the jury and a finding made as follows: “Q. If you find for the Plaintiff, state the false and fraudulent statements made by Henry 0. Cronkite to the Plaintiff. A. Henry O. Cronkite said that wheat was destroyed by ‘crinkle joint.’ ” The demurrer to plaintiff’s evidence was properly overruled. Appellant’s next specification of error is that the trial court gave erroneous instructions.to the jury. It is contended that instructions 7, 8 and 9 were misstatements of the law in that they did not charge plaintiff with the burden of proving that the insurance adjuster’s representations were known by him to be false; and Instruction No. 9 is objected to because it specifically charged that it was immaterial whether the defendant’s insurance adjuster knew his representations were false at the time they were made. Instructions Nos. 8 and 9 are as follows: “You are further instructed that if you find from the evidence and by a preponderance thereof, that defendant’s agent and adjuster went to the plaintiff’s premises for the purpose of examining and adjusting the loss suffered by the plaintiff by reason of a hail storm which occurred on the 26th day of June, 1947, and that, after examining the wheat in the condition in which it then was, defendant’s agent and adjuster, for the purpose of securing the signature of the plaintiff, Topinka, to certain written documents, designated as a ‘Hail Loss Work Sheet’ and a ‘Hail Adjustment Proof of Loss,’ did represent and pretend to the plaintiff that he, the adjuster, was an expert in the matter of diseases affecting wheat and was able to determine by examination of wheat what, if anything, was the matter with it, and did state to the plaintiff that plaintiff’s wheat had suffered but slight damage by reason of hail and that all the rest of the damage to plaintiff’s wheat was caused by what is known as ‘crinkle joint’ and the plaintiff then and there, stated to defendant’s agent, in substance, that he did not know what was or was not ‘crinkle joint,’ and would be compelled to rely on the statement of the adjuster, and said adjuster assured the plaintiff that his major damage was the result of ‘crinkle joint’; and you further find from the evidence of the whole case and by a preponderance of the same, that the statements so made by defendant’s agent and adjuster were not true but false; and that the plaintiff believed and relied upon such statements, and so believing and relying, did sign the wi'itten documents mentioned whereby he did settle with and release the insurance company from liability to the plaintiff for his crop loss by hail damage, then you should find that said documents are of no force or effect and wholly invalid, and your verdict should be for the plaintiff. “On the other hand, if you shall fail to find from the evidence that defendant’s agent and adjuster made such representations or that if such representations were made and the same were true; or if you shall find that said statements and representations were made and were false but the plaintiff did not believe such false statements and did not rely on them so that no undue advantage was taken of him in his execution of said written documents, then the plaintiff would be bound by his transactions as set forth therein and your verdict should be for the defendant. “You are further instructed that if you find from the evidence and by a preponderance thereof, that the defendant’s agent and adjuster made, as a positive representation of fact, the representations and statements as alleged and claimed by the plaintiff in his petition and reply relative to the cause of the injury to plaintiff’s crop of wheat and the liability of the insuring company in connection therewith, intending thereby to induce the plaintiff, Topinka, to sign the ‘Hail Loss Work Sheet’ and the ‘Hail Adjustment Proof of Loss’ as claimed by the plaintiff, and that the plaintiff, Topinka, relied upon and believed such representations and statements to be true and was thereby induced to sign his name to these written documents, and that said statements and representations were, in fact, not true, then I charge you that it is not material whether the defendant’s agent knew his representations were false at the time they were made or not, if you find they were so made, but the making of such false representations would constitute fraud just the same as though the adjuster had known them to be false at the time they were made; and the act of the plaintiff in executing said written instruments would be of no effect.” This proposition of law has been heretofore discussed in this opinion, and the cases cited in connection with that discussion lend approval and support to the statements of law contained in the instructions which are challenged here. Another decision of this court not included among the authorities above cited is the case of Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900, where we said: “The next error of which defendant complains is the giving of instruction number 27. It was as follows: ‘Damages caused by a representation false in fact, may be recovered, if made to induce the damaged person to part with his money, even when such representation is made without actual knowledge of its truth or falsity, provided, of course the person to whom such representations or statements are made believed the same and relied thereon.’ This instruction is in accordance with the holding of this court in Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067, and Roome v. Petroleum Co., 111 Kan. 633, 208 Pac. 255. 'We still adhere to what was said there.” (p. 24.) Appellant relies heavily upon the cases of Roome v. Petroleum Co., 111 Kan. 633, 208 Pac. 255, and Shriver v. National Bank, et al., 117 Kan. 638, 232 Pac. 1062. In the former case the trial court gave an instruction as to the necessary elements of fraud and included therein the statement that the false representation when made must have been known to be false by the party making it. On appeal this court approved the trial court’s statement of the elements of actionable fraud, but did so without particularly stressing the fact that the party making the representation must have known it to be false. The other instructions in the Roome case were disapproved by this court because they charged that fraud could be predicated only upon a dishonest motive. This court said: “False representations, if they result in damage to the person to whom they are made, are injurious whether made through honest or dishonest motives, and the damage sustained can be recovered if the representations are made with the intention of inducing the injured person to part with his money or property.” (p. 635.) Furthermore, the Roome case quotes with approval from Bice v. Nelson, supra, as follows: “In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive.” (p. 636.) We then said, in conclusion: “There was abundant evidence to show that the representation was not true. The instructions of the court were misleading.” (p. 636.) In the other case we mentioned as having been stressed by appellant, Shriver v. National Bank, et al., this court discussed the principle of scienter, saying: “Scienter, as the term is here used, means such knowledge as charges a man with the consequences of his acts. Generally, to constitute remedial fraud, misrepresentations must be made with scienter; that is either with knowledge of their falsity or with culpable ignorance of their truth (26 C. J. 1105). Sci-enter may be established by showing actual knowledge of falsity, an assertion of actual knowledge coupled with ignorance of the truth, or a false statement made under special circumstances imposing a duty to know the truth (26 C. J. 1108).” (Emphasis supplied.) (p. 648.) It appears that appellant places too much emphasis upon the Roome and Shriver opinions, for we aré unable to construe either of them as authority that false representations must have been known to be false by the person making them before the fraud can be actionable. That is not the law in this state as indicated by those opinions as well as the many other authorities herein cited. We fail to find where this court has ever held, under such circumstances as we have here, that to establish fraud there must be proof that the fraudulent representation was made with knowledge of its falsity on the part of the party making it. Such a rule would too likely defeat the administration of justice. There was no error in the trial court’s instructions. The third specification of error, although not briefed or argued by appellant, is that the trial court erred in overruling objections made by defendant to plaintiff’s evidence. However, we have examined the record before us and fail to find any error in this respect. The judgment of the trial court is affirmed. Harvey, C. J. not participating. ’

The opinion of the court was delivered by Harvey, C. J.: This was an action'to determine the ownership of a sum of money in a savings account certificate in a building and loan association. The trial court heard the evidence and made findings of fact and conclusions of law and rendered judgment for plaintiff. The contesting defendant has appealed. In the petition, filed February 13, 1947, plaintiff alleged that he w;as the duly appointed, qualified and acting administrator of the estate of Henry J. Spark, deceased, a resident of Sedgwick county, who died intestate on October 22, 1946; that at the time of his death he was the owner of a savings share certificate in the defendant building and loan association in the sum of $3,232.77, which was due and owing to the plaintiff as administrator; that the building and loan association refused to pay or to recognize the right of plaintiff therein; that the defendant, Geraldine Brown, claims some interest in the fund, but her rights thereto are of no legal force. The prayer was that plaintiff recover from the association the amount due on the certificate and that defendant, Geraldine Brown, be adjudged to have no interest therein. The building and loan association filed an answer in which.it admitted its status and that there was a savings account in the association; that the names of Henry J. Spark, Charles A. Spark and Mabel Geraldine Spark appear in the savings account, a copy of which was set up as a part of its answer. It admitted the account was in the sum of $3,232.77, which sum the association offered into court upon the surrender of the share account passbook. The prayer was that Charles A. Spark be made a party defendant and that-the association be permitted to pay the sum into court upon the surrender of the share account passbook, subject to the further order of the court. It was stipulated that the association need not pay the money in, but should act as a stakeholder of the fund pending the determination of the rights of the contesting parties thereto, and without cost to the association. Charles A. Spark filed an answer in which he disclaimed any interest in the account and alleged that an agreement had been entered into between himself, Henry J. Spark and Mabel Geraldine Brown (nee Spark) by which the account should be owned jointly by Henry J. Spark and Mabel Geraldine Brown, with the right of survivorship. Geraldine Brown filed an answer in which she stated her full name was Mabel Geraldine Brown, and prior to her marriage her surname was Spark, and denied the allegations of the petition not specifically admitted. She further alleged that about February 21,1938, she and Henry J. Spark opened a savings account in the defendant association and there was issued to them jointly in their names Certificate No. S.333; that as a result of their joint efforts each of them deposited in the account, severally and jointly, sums totalling the present amount of the account, and that the account was made in the name of Henry J. Spark and/or Mabel Geraldine Spark, “with the specific agreement that it was a joint account with the right of survivor-ship”; that Henry J. Spark died October 22, 1946, leaving the answering defendant the sole owner of the certificate in question, and during the lifetime of Henry J. Spark it was definitely agreed between him and the answering defendant that the savings account was to be a joint account with the survivor of the two to receive the entire sum so deposited. She alleged she should receive the entire amount of the account and that plaintiff should receive nothing, and the prayer was to that effect. The court's findings of fact tell the story very well, and will be summarized or quoted as follows: The first three state the status of the parties, the fourth that Charles A. Spark had filed a disclaimer and relinquishment of his rights to the fund in controversy. “5. That on or about the 21st of February, 1938, the decedent, Henry J. Spark, made application for a savings share account in the Wichita Federal Savings and Loan Association and for the issuance of membership in the approved form; and that pursuant to such application there was issued to him a passbook in his name. “6. That the application was an application for individual membership; and that Henry J. Spark signed no application for a joint membership with any person. “7. That Charles A. Spark signed an application for a joint savings share membership (Exhibit 1), with the right of survivorship on the back of the same application form as Henry J. Spark signed applying for an individual membership. “8. That the names of Charles A. Spark and Mabel Geraldine Spark also appear upon the account card (Exhibit 2), maintained by the defendant, the Wichita Federal Savings & Loan Association, at its place of business in Wichita, Kansas, and in the regular course of such business, but that there is no evidence as to who entered such names on said account card or cards; and that Mabel Geraldine Spark never at any time signed any signature card or application card with the Wichita Federal Savings & Loan Association. “9. That under the rules and customs of such association, the monies deposited in the said savings share account could be withdrawn only upon the presentation of the passbook (Exhibit 3) by some person entitled thereto. “10. That the passbook (Exhibit 3) issued to Henry J. Spark was in his possession at all times and was never delivered to Mabel Geraldine Brown, or to Charles A. Spark. “11. That the decedent, Henry J. Spark, entered in his passbook (Exhibit 3) for said savings share account, the names of Mabel Geraldine Spark and Charles A. Spark, or had some person do it at his direction. “12. That the decedent, Henry J. Spark, authorized the defendant, the Wichita Federal Savings & Loan Association to enter the name of Mabel Geraldine Spark on their account ledger and to strike the name of Charles A. Spark in the account as shown by Exhibit 2, being account No. S-333. “13. That there is no evidence of any contract between Geraldine Brown and Henry J. Spark, or between Geraldine Brown and the Wichita Federal Savings & Loan Association, that such contract should be a joint and survivor contract. “14. That the sum now in said savings share account number S-333 of the Wichita Federal Savings & .Loan Association are in the total amount of $3,232.77. “15. That the said Henry J. Spark was, during his lifetime, the sole owner of the said savings share account No. S-333, and that he never at any time made a completed gift of such savings account, nor completed a contract that any person should have any rights therein. “16. That the plaintiff, Garret B. Sparks, as administrator, is entitled to the said fund and savings share account number ■ S-333 and that the said plaintiff should have judgment against the defendant the Wichita Federal Savings & Loan Association, for all monies now in said account, or which may accumulate in said account under the rules of such association prior to the payment of such monies into the office of the Clerk of the District Court. “17. That the plaintiff is entitled to judgment against the defendant, Geraldine Brown, for the costs herein, and that pursuant to the stipulation of the parties, the Wichita Federal Savings and Loan Association should have no cost taxed against them.” Defendant moved to set aside or to modify certain of the court’s findings of fact as not supported by the evidence, or as being contrary to the evidence. This was considered by the court and overruled, as was also defendant’s motion for a new trial, and judgment was rendered for plaintiff. In this court counsel for appellant contend that the court erred in overruling the motion for judgment on the pleadings, and also erred in its findings of fact and in rendering judgment for plaintiff. These contentions are argued together. The principal material evidence consisted of the records of the building and loan association and of the passbook issued to Henry J. Spark and the testimony of Mr. Cauthorn,’ the president of the association at the time of the trial. His father, who was president of the association in 1938 when the account was started, and M. R. Burton, secretary of the association at that time, were deceased. No one testified concerning any agreement between the officers of the association and Henry J. Spark, or the appellant, Geraldine Brown, at the time the account was started. There was no testimony of the agreement among any of the parties as alleged by the answer of the defendant, Geraldine Brown, nor was there any testimony as to the agreement alleged in the answer and disclaimer of Charles A. Spark. We have examined all of the evidence carefully and find no reason to say that the findings of the trial court were contrary to the evidence. In fact, we find evidence to support them. It is true some of them could have been framed in different language, but we regard that as immaterial. At the time the account was started in 1938 the defendant building and loan association was authorized under its law to issue its shares to an individual, or under the statute (G. S. 1935, 17-1049, in force at that time) the association was authorized to issue shares to two persons in either of two forms (a) “payable to either.” If issued in that form the association was authorized to pay to either of the persons named without consulting the other. This part of the statute was designed for the protection of the association in the making of payments. It has nothing to do with the ownership of the fund as between the two parties. Also, the association was authorized to issue shares to two persons (b) “payable to either or the survivor.” If the shares were issued in that form the association could pay the entire amount to the survivor in the event of the death of one of the persons named. A section of the banking statute (G. S. 1935, 9-173), containing identical language as to bank accounts, was interpreted by this court in Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647, to have the meaning we have applied to G. S. 1935, 17-1049. See, also, Asche v. Matthews, 136 Kan. 740, 18 P. 2d 177; Corson v. Oakley, 138 Kan. 520, 27 P. 2d 290; Bouska v. Bouska, 159 Kan. 276, 153 P. 2d 923; Edwards v. Commissioner of Internal Revenue, 102 F. 2d 757; 1 A. L. R. 2d 247. The essential difference in the Malone case and in the case before us is that while the account stood in the names of two persons in the bank there was definite proof that at the time the account was opened both the persons named, appeared at the bank, told the banker they desired to open an account in their two names as a joint account with the right of survivorship, and all parties, including the representative of the bank, agreed that the account should be opened as a joint account with the right of survivorship, and upon that evidence the court held that upon the death of one of them the survivor was the owner of the account. Here we have no such evidence. It is true that the account, which was brought into court by the president of the association at the time of the trial, showed three names, but there was no evidence as to when or by whom those names were added to' the account, and the account itself did not state anything about the rights of a survivor. The passbook issued to Henry J. Spark was one for an individual account of Henry J. Spark. His name alone appears upon the face of the account. It is true that on the inside page, where the name was again stated, there appeared the name also of Charles A. Spark, with no evidence to show by whom that was written or when, and also appeared the name of Mrs. Joe Brown, with evidence that name was in the handwriting of Henry J. Spark. When that was written, or under what circumstances, or whether by any agreement with him and someone else, or what that agreement was, is not disclosed. Even that statement did not say anything about the rights of a survivor. There was no evidence in support of appellant’s answer of the agreement she .alleged was made between her and Henry J. Spark at the time the account was opened. Even that agreement was not alleged to have been made with the defendant building and loan association, and as far as the record discloses if such an agreement ever was made the building and loan association knew nothing about it. The banking statute involved in the Malone case, supra, was revised in 1947 and is G. S. 1947 Supp. 9-1205. The building and loan statute, above referred to (G. S. 1935, 17-1049), was amended in 1943 and is G. S. 1947 Supp. 17-5804. These changes, however, make no material difference in the case before us. Joint tenancies with the right of survivorship. as they existed at common law, never have been favored in this state. In 1891 the legislature enacted a statute (Laws 1891, ch. 203, G. S. 1935, 22-132) to make that clear. In Withers v. Barnes, 95 Kan. 798, 149 Pac. 691, it was held this statute abolished joint tenancies and the doctrine of survivorship created by operation of law, but had no application to a conveyance purposely made to have that effect. The doctrine of that case still prevails in this state, as shown by our cases above cited. In 1939 (Laws 1939, ch. 181, sec. 1, G. S. 1947 Supp. 58-501), G. S. 1935, 22-132, was rewritten so as to apply to both personal and real property and to what was known as estates in entirety, and other joint tenancies under the common law, so as to read: “Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: Except, That a grant or devise to executors or trustees, as such, shall create in them a joint tenancy unless the grant or devise expressly declares otherwise.” The result is that when one desires to create a joint tenancy with the right of survivorship language must be used to make that intention clear, otherwise it will not be created. We think it clear that' the evidence in this case was insufficient to establish a joint tenancy with the right of survivorship. We find no error in the record. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Beier, J.; Movant Tuan Huynh entered a no contest plea to a first-degree felony murder charge in 1996 and received a life sentence. He appeals the district court’s September 2001 rejection of his motion to withdraw his plea. The defendant fired a gun multiple times into a group of five or six people leaving a restaurant, killing Charles J. Smith. Earlier in the evening, the targets were at a party at the restaurant with the defendant. While dancing, certain hand movements were interpreted as disrespectful gang signs toward the defendant and his companions. Later, when both groups were leaving, the defendant fired out of the passenger window of his friend’s moving car, aiming at Smith and his friends. The intended victims other than Smith were able to duck and thus avoid injury or death. Huynh was charged initially with first-degree premeditated murder, and the State filed notice of its intent to seek a hard 40 sentence, i.e., life without possibility of parole for 40 years. Huynh was represented by counsel and entered into a plea agreement, which provided in pertinent part: “In exchange for a Brady plea of guilty, the State [amended] the charge to felony murder with the underlying felony being aggravated assault.” The underlying felony was not charged separately. At his plea hearing, Huynh was represented by two attorneys. Huynh said that he fully understood English and his rights. He also said that he understood the plea agreement and wanted to enter into it. Huynh argued in his motion that the underlying felony of aggravated assault would have merged into felony murder; that, as a result, he could not have been convicted of felony murder; that his attorneys failed to explain this to him; and that he should therefore be permitted to withdraw his plea. The district court summarily denied the motion. K.S.A. 2003 Supp. 22-3210 governs pleas and provides in relevant part: “(a) Before or during trial a plea of guilty or nolo contendere may be accepted when: (1) The defendant or counsel for the defendant enters such plea in open court; and (2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and (3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea: and (4) the court is satisfied that there is a factual basis for the plea. “(d) ... To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Our standard of review on a district court’s ruling on a motion to withdraw a plea is abuse of discretion. State v. Williams, 259 Kan. 432, 435, 913 P.2d 587, cert. denied 519 U.S. 829 (1996). It was Huynh’s burden to demonstrate manifest injustice under the statute. See K.S.A. 2003 Supp. 22-3210; Williams, 259 Kan. at 435. Huynh relies on State v. Fisher, 120 Kan. 226, 243 Pac. 291 (1926), and State v. Leonard, 248 Kan. 427, 807 P.2d 81 (1991). In Fisher, the defendant shot at a car killing a child inside. Fisher was charged with felony murder, with the underlying felony being an assault directed at all the occupants of the car. The court held: “This contention cannot be sustained. . . . “. . . Here the act of the defendant in doing the shooting is either murder in the first degree or some other offense. That same act cannot be made the basis, first, of some other felony, as manslaughter, and then that felony used as an element of murder in the first degree.” Fisher, 120 Kan. at 230-31. The Leonard court faced analogous facts. The defendant drove his semi-truck into a crowd of people, tolling one. Leonard was charged with the felony murder of the victim, with the underlying felony being aggravated assault of the numerous other individuals in his group. The court held that “the elements constituting the underlying felony must be so distinct from the homicide as not to be an ingredient of the homicide.” Leonard, 248 Kan. 427, Syl ¶ 1. “[Defendant’s] one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charge merged wdth the felony-murder charge.” 248 Kan. at 431. The holdings of Fisher and Leonard were examined in State v. Jones, 257 Kan. 856, 896 P.2d 1077 (1995). The defendant in Jones shot at a group of people, tolling an unintended victim, Roger Halley. Jones argued the attempted murder of the people in the group was an “ingredient of the homicide of Halley” and the attempted murder charge merged with the felony-murder charge. This court reviewed tie holdings of Fisher and Leonard and held that the merger concerns of tiróse cases were not present in Jones’ case. Jones, 257 Kan. at 864-70. “Defendant was not charged with two offenses based on the same act. Nor was he charged with first-degree murder when there was no evidence of commensurate intention or premeditation.” 257 Kan. at 869-70. We stated: “In general, a lethal act cannot serve as the independent collateral felony necessary to support a felony-murder conviction. However, this rule does not apply where the deceased was not an intended victim of the lethal act. Where the attempt to kill one person results in the death of another, the collateral felony of attempted murder is so distinct from the homicide as not to be an ingredient of it. Thus, ... it does not merge with the homicide.” 257 Kan. 856, Syl. ¶ 3. Based on Jones, Huynh’s motion was properly denied; there was no manifest injustice shown and no abuse of discretion. The factual basis for Huynh’s plea recited by the prosecutor at his hearing was that Huynh’s underlying aggravated assault was directed at individuals in the group other than the murder victim. Huynh did not engage in one act; he fired several times. Jones’ gloss on Fisher and Leonard dictates that no merger occurs in such circumstances. The transcript of the hearing also makes clear that Huynh’s plea was otherwise knowing and voluntary. Affirmed.

The opinion of the court was delivered by McFarland, C.J.: Defendant appeals from his conviction of reckless driving (K.S.A. 8-1566[a]). He contends the evidence is insufficient to support the conviction. The Court of Appeals affirmed the conviction (State v. Remmers, No. 89,721, unpublished opinion filed January 9, 2004). The case is before us on petition for review. FACTS On May 16, 2001, at approximately 11:15 a.m., defendant was driving east on 310th Street in rural Marion County. At the intersection with north Quail Creek Road, defendant ran a stop sign and his vehicle collided with a service truck being operated by Eldon Smith. Smith’s truck was knocked sideways, rolled down the ditch, and caught fire. As a result, defendant was charged with reckless driving and, after a bench trial, was found guilty, fined $500, sentenced to 90 days in jail, and assessed court costs. He was granted probation from the jail time. Defendant told the police officer at the time of the accident that he was not sure which direction the other vehicle had been traveling. He further informed the officer that he was not paying attention and that he “had his head up his ass.” The terrain at the location of the accident is flat, it was a clear day, and there were no obstructions to prevent defendant from seeing the other vehicle. The sole issue continues to be whether there was sufficient evidence to support defendant’s conviction. STANDARD OF REVIEW ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). DISCUSSION Defendant contends something more than evidence of inattentive driving is required to support his conviction of reckless driving. K.S.A. 8-1566(a), criminalizing reckless driving, is found under the heading “SERIOUS TRAFFIC OFFENSES” and reads as follows: “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” PIK Crim. 3d 70.04 sets forth the requirements of K.S.A. 8-1566(a): “RECKLESS DRIVING “The defendant is charged with the crime of recldess driving. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: 1. That the defendant was driving a vehicle; 2. That the defendant was driving in a recldess manner; and 3. That this act occurred on or about [a specific day in a specific county of] Kansas. “Reckless means driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.” (Emphasis added.) The meaning of “reckless” in the PIK is in accord with how that term is defined under our criminal intent statute. K.S.A. 21-3201 states: “(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness’ are included within the term ‘recklessness’ as used in this code." The Court of Appeals held: “After a careful review of the record, we are of the opinion that defendant’s indifference to the consequences of the action of inattentive driving is sufficient proof of recldess driving. We find little difference between talking on a telephone while driving and failing to pay attention while driving. Failing to pay attention while driving satisfies the elements of reckless driving as defined by PIK Crim. 3d 70.04.” (Emphasis added.) Slip op. at 2-3. It should be noted that “inattentive driving” is an offense under many city ordinances but is not an offense under the Kansas statutes. While no Kansas case has dealt with the precise issue here, at least one case has touched on what constitutes reckless driving behavior in another context. In State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998), the court stated that “a person guilty of driving under the influence of alcohol is not necessarily guilty of driving in reckless disregard for the safety of others.” 265 Kan. at 234 (quoting State v. Mourning, 233 Kan. 678, 682, 664 P.2d 857 [1983]). In wrestling with this issue, the Huser court stated: “Here, additional evidence, beyond evidence indicating the defendant was driving under the influence of alcohol, was necessaiy to create probable cause for recklessness so that the trial court could bind the defendant over on the reckless aggravated battery charges. Under Mourning, simply driving under the influence does not, standing alone, amount to reckless behavior. One’s behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. K.S.A. 21-3201(c) (defining reckless conduct). There was no evidence that this occurred here — no evidence of weaving, speeding, or a failure to stop quickly after the accident occurred. The State did not submit enough evidence to support a probable cause finding that the defendant committed reckless aggravated battery by recklessly driving her car.” (Emphasis added.) 265 Kan. at 234-35. In State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687 (2002), it was held that running a red light as a result of inattentiveness, standing alone, did not satisfy the element of material deviation from the standard of care required for vehicular homicide. In his supplemental brief, defendant called our attention to five cases from other jurisdictions. Most pertinent to the matter before us is State v. Larson, 582 N.W.2d 15 (S.D. 1998). In Larson, the South Dakota Supreme Court found sufficient evidence of recklessness to support defendant’s convictions for motor vehicle manslaughter. The statutory language defining recklessness, S.D. Codified Law Ann. § 22-l-2(l)(d), is fairly similar to that in Kansas. See 582 N.W.2d at 18 (citing statute). In finding the evidence sufficient on the element of recklessness, the Larsón court looked to the defendant’s excessive speed in a construction zone and the fact that he was veering into a closed lane. The court held that a “speed of 62 to 68 m.p.h. in the presence of a visible road construction crew constitutes a conscious disregard of the safety of the crew.” 582 N.W.2d at 19. The court further wrote: “ ‘[RJecHessness requires more than ordinary negligent conduct. Evidence of carelessness, inadvertence or other similar behavior is insufficient to sustain a conviction where reckless conduct is required.’ [Citation omitted.] The focus is on the state of mind of the individual, and whether his conduct is perceived as negligent or reckless depends upon his awareness of the risk his behavior creates].] “... ‘The difference between the terms “recklessly” and “negligently,” as usually defined, is one of kind, rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.’ ... ‘It is the concept of conscious disregard that distinguishes recklessness from negligence. The negligent actor fails to perceive a risk that he ought to perceive. The reckless actor perceives or is conscious of the risk, but disregards it.’ [Citation omitted.]” (Emphasis added.) 582 N.W.2d at 18 (quoting State v. Olsen, 462 N.W.2d 474, 476-77 [S.D. 1990]). The PIK Crim. 3d 70.04 definition of reckless driving is reiterated for convenience as follows: “Reckless means driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.” (Emphasis added.) In the case before us, the evidence shows defendant was driving on a rural road on a clear day. There was no evidence of speeding, swerving, driving erratically, or leaving the scene of the accident. Defendant’s statement to the investigating officer was that he was inattentive and failed to see the stop sign or the approaching Smith vehicle. Evidence of defendant’s mental state or aggravating circumstances necessary for a conviction of reckless driving is absent. We conclude the evidence herein is insufficient to support defendant’s conviction of reckless driving (K.S.A. 8-1566[a]). Reversed.

The opinion was delivered by Luckert, J.: Monice Nena Ramirez was arrested in a bar known for drug activity after a law enforcement officer, who had known her for 8 years and knew her to have used drugs in the past, observed that she was holding a piece of a tom plastic baggie in her hand, was under the influence, and was uncharacteristically avoiding eye contact with the officer and acting nervous. A resulting search revealed cocaine and marijuana in her possession. She was charged, and, after her motion to suppress was denied, she was convicted and sentenced for possession of cocaine and possession of marijuana. Ramirez timely appealed. A majority of the Court of Appeals affirmed, ruling that under the totality of the circumstances, the officer had probable cause to arrest Ramirez and that the warrantless search could be upheld as a search incident to arrest. One member of the three judge panel dissented, concluding that the officers observations justified only an investigatory stop and frisk but not an arrest and search. This court granted Ramirez’ petition for review. The Court of Appeals set out the facts accurately and concisely as follows: “During the pretrial hearing, Deputy Randy Evans testified that he had been a deputy with the Finney County Sheriff s Office for 13 years and had training and experience in detecting and identifying controlled substances, including serving in the past on the Finney County DEA task force. On March 11, 2001, Evans was on patrol duty working the midnight shift. Shortly after midnight, he stopped at the El Maguey Club in Finney County for a routine bar check. The El Maguey Club was a popular place for drug activity. During bar checks, a deputy would meet with the public and watch for criminal activity. “Deputy Evans and another sheriffs deputy entered the El Maguey Club through the front door. Ramirez was in the open area in front of the club standing with another woman. Deputy Evans and Ramirez made eye contact as the deputies entered. Ramirez then avoided further eye contact with Deputy Evans. She appeared to be nervous and walked away from him. Deputy Evans had known Ramirez for at least 8 years, had seen her intoxicated and high on drugs, and knew she had used crack and powder cocaine. Deputy Evans considered Ramirez’ actions unusual. Before he approached Ramirez, he noticed her eyes seemed to be glassy, watery, and wide open, which led him to believe Ramirez was under the influence of a narcotic. “Deputy Evans followed Ramirez toward the north end of the club. He noticed she was fidgety and nervous and her left hand was clenched. Deputy Evans saw a portion of a clear plastic bag with a tom edge protruding from Ramirez’ clenched fist. Knowing that cocaine was frequently packaged in plastic baggies, Deputy Evans believed Ramirez was concealing illegal drugs in her fist. He asked Ramirez what she had in her hand, and after several inquiries, Ramirez failed to respond. He then took hold of Ramirez’ left wrist and asked her to open her hand, and she complied. At that time, Deputy Evans saw two separate portions of clear plastic bags containing a white powdery substance that looked like powder cocaine. He seized the baggies, placed Ramirez in handcuffs, and took her outside the bar.” Based upon these facts, the trial court denied Ramirez’ motion to suppress, ruling that the officer had arrested the defendant at the time he took hold of her wrist and that there was probable cause to believe she had committed or was committing a felony. Thus, the arrest and subsequent search incident to arrest were lawful. Where the facts material to a decision on a motion to suppress are not in dispute, and they are not in this case, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). Ramirez argues that the search of her which revealed the cocaine was unconstitutional and, therefore, the fruits of the search as well as the subsequent discovery of marijuana after she was placed in custody should be suppressed. The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 [1967]). See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) (“[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other.”). Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses. State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003). In this case, the trial court found that the exception for a search incident to a lawful arrest applied. The State does not contest the trial court’s finding that Deputy Evans arrested Ramirez when he grabbed her wrist. Therefore, we do not have before us the issue of whether this constituted a seizure of Ramirez. Rather, the issue is whether Ramirez’ arrest was lawful. It is recognized that a warrantless arrest of an individual in a public place for a felony is consistent with the Fourth Amendment if the arrest is supported by probable cause. United States v. Watson, 423 U.S. 411, 423-24, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). As the United States Supreme Court has stated: “The long-prevailing standard of probable cause protects ‘citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,’ while giving ‘fair leeway for enforcing the law in the community’s protection.’ ” Maryland v. Pringle, 540 U.S. 366, 370, 157 L. Ed. 2d 769, 124 S. Ct. 795 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 [1949]). Kansas statutes authorize a warrantless arrest when a law enforcement officer has probable cause to believe that the person is committing or has committed a felony. K.S.A. 2003 Supp. 22-2401. This court has defined probable cause as follows: “Probable cause is the reasonable belief that a specific crime has been committed and that die defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. “When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer’s possession, fair inferences Üierefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.” State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2-3, 83 P.3d 794 (2004). Applying these standards, the Court of Appeals concluded that the following facts were sufficient to establish probable cause: “In this case, in the context of having known Ramirez for at least 8 years, the facts relied on by Deputy Evans were: (1) Ramirez’ unusual behavior in avoiding eye contact and moving away from a uniformed officer she knew; (2) her apparent state of being under the influence; (3) her fidgety and nervous behavior; (4) her presence in a bar known for drug activity; (5) her prior known use of cocaine; and (6) her clenched fist from which a tom edge of plastic protruded.” In seeking review, Ramirez argues, as concluded by the dissenter in the Court of Appeals, that while these facts may have raised a suspicion they were not sufficient for probable cause. In making this argument, she focuses upon each specific factor. For example, she argues that tire fact she was at a bar known for drug activity did not justify a warrantless arrest and search because “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation omitted.]” Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). Additionally, she argues that other factors which contributed to the officer’s suspicion had innocent explanations. People in bars are commonly intoxicated, people being questioned by law enforcement officers are commonly nervous, and people possess baggies for legitimate uses. Furthermore, although die officer knew Ramirez had been involved with drugs in the past, he did not testify as to how recent that involvement was. However, as the Court of Appeals majority noted, a court must consider the totality of the circumstances, rather than evaluating each suspicious factor in isolation and asking whether there was an innocent explanation for the activity. In support, the majority cited United States v. Arvizu, 534 U.S. 266, 151 L. Ed. 2d 740, 122 S. Ct. 744 (2002) (in determining whether reasonable suspicion exists to justify Terry stop, courts must look at totality of circumstances); and United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir. 2002), cert. denied 537 U.S. 1178 (2003) (applying same principles to determination of whether probable cause exists for search). The majority pointed out that Kansas also applies the totality of the circumstances approach to determining whether reasonable suspicion exists, citing State v. Crawford, 275 Kan. 492, 496, 67 P.3d 115 (2003). The majority’s reasoning is supported by this court’s recent reaffirmation that a probable cause determination depends upon the totality of the circumstances. See State v. Abbott, 277 Kan. at 164 (citing State v. Payne, 273 Kan. 466, 474, 44 P.3d 419 [2002]). When we examine the totality of the circumstances we view the information from the standpoint of an objectively reasonable police officer. See State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). Thus, the fact that Deputy Evans testified that he believed there was probable cause does not end our consideration. Nor does the fact that he formed this belief, at least in part, upon the mistaken understanding that having drugs in one’s blood stream constituted possession, a belief which does not reflect Kansas law. See State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983). Rather, what matters is whether Evans had knowledge of facts which would lead a reasonable person to believe a crime had been committed, specifically, that Ramirez was in possession of an illegal substance. As the United States Supreme Court has recently stated: “ ‘[Pjrobable cause is a fluid concept. — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.’ [Citation omitted.] “The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. at 370-71 (quoting Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 [1983]). Where one or two factors may cause a reasonable suspicion, a combination of several factors may create probable cause. This point is illustrated by drug cases considering whether the presence of portions of baggies, glassine packages, or similar suspicious packaging is sufficient to establish probable cause. “[T]he observation of a person in possession of a certain land of envelope or other packaging which on other occasions involving other persons has been found to conceal narcotics does not, standing alone, constitute probable cause. It has even been held that the viewing of a passing of such a container from one person to another is not enough, though it would seem that little more than that should be necessary. Certainly if money is passed in exchange there are then grounds to arrest, and the small gap can also be filled by furtive or evasive behavior,’ prior information from an informant, or the fact that the locale ‘has developed a reputation as a drug marketplace.’ ” (Emphasis added.) 2 LaFave, Search and Seizure § 3.6(b), pp. 299-301, and 2004 Pocket Part, pp. 47-49 (1996). Several cases support these conclusions, including In re J.D.R., 637 A.2d 849 (D.C. 1994) (finding probable cause to arrest where officer, after making a lawful traffic stop, observed a comer of a plastic baggie protruding from the defendant’s cast and, after officer asked to see the baggie, defendant tried to hide it); Commonwealth v. Alvarado, 420 Mass. 542, 651 N.E.2d 824 (1995) (trooper who observed clear plastic material protruding from defendant’s fist did not see controlled substance in plain view; trooper’s observation of defendant stuffing what looked like glassine bag down front of his pants was not probable cause for arrest; however, in combination with additional factors probable cause was established); and People v. McRay, 51 N.Y.2d 594, 416 N.E.2d 1015, 435 N.Y.S.2d 679 (1980) (where experienced officer observed delivery of glassine envelopes — the hallmark of a drug transaction— in an area notorious for narcotics activity, probable cause was established). Similarly, factors combine in this case. Ramirez appeared to be under the influence of drugs in a bar known for drug activity. She was fidgety and nervous and avoided a uniformed officer whom she knew. She clenched a torn plastic baggie in her hand, a portion of which was in tire officer’s clear view, and the officer knew that such baggies are commonly used to package cocaine. The officer knew that Ramirez had used drugs in the past. Considering the totality of these circumstances, we agree with the trial court and the majority of the Court of Appeals: The facts and circumstances within the law enforcement officer’s knowledge were sufficient to warrant a person of reasonable caution in the belief that the offense of possession was being committed. Because we conclude that there was probable cause to arrest Ramirez, the search, as a search incident to arrest, was lawful. Ramirez’ arrest therefore did not contravene the Fourth and Fourteenth Amendments to the United States Constitution or Section 15 of the Kansas Constitution Bill of Rights. Since we reach this holding we need not address the alternative issue raised by the State that the search was justified under the plain view doctrine. Affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action under the workmen’s compensation act. The compensation commissioner found for the .plaintiff. On appeal the district court found in part for the claimant and in paro for the respondent. The case is here on appeal by the respondent and cross-appeal by the claimant. Chamberlain, the claimant, was employed by the Bowersock Mills and Power Company, a corporation located at Lawrence, and. went to work on Thursday, June 2, 1938. On June 3, while he and other employees were moving some machinery, ha suffered an injury tó the third finger of his hand. The skin on the finger was broken and a cut made about an inch long. He continued to work that day and the next day, June 4, and then returned to his home in Topeka. On Sunday he consulted Dr. C. K. Schaffer, of Topeka, and Doctor Schaffer found evidence of infection. Chamberlain was taken to a Topeka hospital, where he received treatment. The infection grew worse, abscesses developed and several operations, one of them under a general anaesthetic, were performed. Claim for compensation was duly made. The district court found that the medical treatments were authorized by the respondent, that notice of the claim for compensation was made within the ninety days provided by the statute, and that the claimant’s injury consisted of an injury to the third finger of the right hand resulting in the loss of the use of the finger. The court found that the claimant was entitled to twenty weeks’ compensation for the totfil loss of the use of the finger, the same to be treated as a* scheduled injury, and was further entitled to two weeks’ additional compensation for the healing period, making a total of twenty-two weeks, or a total of $396. It was agreed that if he was entitled to compensation it should be fixed at the rate of $18 a week. The court also allowed the hospital and medical bills. The respondent company makes three principal contentions: (1) That the medical services were not authorized by the company, because Goodrich, the man who is said to have authorized them, had no authority to do so. It is admitted that the furnishing of medical and hospital attention constitutes payment, of compensation, and that if the company did authorize such services a notice of the claim was filed within time. If the company did not authorize them, then the notice, not having been filed within ninety days after the injury, was filed too late. (2) That the court’s finding that claimant suffered a total loss of the use of the third finger of his right hand as a scheduled injury was not supported by evidence, and that the court should have found from the testimony that the claimant was entitled to ten percent of the loss of the use of the third, fourth and fifth fingers of the right hand. (3) That if the evidence failed to show a scheduled injury, then the court should have allowed compensation for total temporary disability only from June 6 to August 6, and should have disallowed all other claims except medical. The claimant makes two principal contentions: (1) that he was also entitled to compensation for loss of the use of his fourth finger; and (2) that the court erred in holding that the award paid on the loss of the use of the third finger, being a scheduled injury under the statute, prevented any allowance for temporary total disability, and that upon the record he was entitled to such allowance. We shall consider these contentions in their order. (1) Were the representations and acts of Goodrich authorizing medical treatment and hospital care binding upon the company? The company operates the mill where the claimant was employed and also operates a grain storage elevator, a bakery and other business concerns. Goodrich was in charge of the mill operations and sales. Respondent refers to him as superintendent. He had power to employ helpers, and it is admitted that he did hire the plaintiff, though respondent contends it was done after consultation with Jackmans, who was vice-president of the company. Chamberlain testified that he did not see Goodrich the day his hand was injured, as Goodrich was out of town; that he saw Goodrich on Saturday, and Goodrich mentioned the accident. He testified that he went back to Lawrence and saw Goodrich again on Monday and told him that he was living at Topeka and wanted to be treated* by his family doctor and thus save the expense of going back and forth to' Lawrence, and asked him if he could keep the Topeka doctor, and Goodrich said it would be all right. He testified that when the injury took place no one at the mill told him to see the company doctor, but someone made the remark that he thought he ought to see a doctor, but he didn’t think at the time it was necessary. He testified that when he was in Doctor Schaffer’s office in Topeka, Doctor Schaffer called Goodrich over the telephone and told Goodrich that the hand wasn’t getting along right and that he should be taken to the hospital. Doctor Schaffer testified that he saw Chamberlain first on June 5 at his office and every day thereafter until the 9th, that when he found that the infection was spreading down into; the wrist he called Goodrich over the phone and asked permission to take him to the hospital, and that he told him to go ahead and' take care of him, as he wanted Chamberlain to have the best of care. There is no con tention that Goodrich told Chamberlain or Doctor Schaffer that he did not have authority to authorize medical or hospital care or that he or anyone at the mill referred Chamberlain or Doctor Schaffer to anyone who would have such authority. The court found, as a matter of fact, that the company did authorize the medical care and the hospital treatment, and we think there is ample evidence to support that finding. The appellant cites several decisions of this court and relies principally upon St. Mary’s Academy v. Railways Ice Co., 138 Kan. 340, 26 P. 2d 278. In that case the workman was injured at night while working at the ice plant and was ordered sent to the hospital by the night engineer who was in charge of the plant at night. It was held that the hospital had no right to rely upon the act of the night engineer as binding upon the company to pay the hospital bill. There is nothing, however, in the record to show that the night engineer had any authority to hire employees or any authority other than having charge of the plant at night. It is not comparable to the instant case, where Goodrich was in charge of mill operations and sales and was clothed with the power to hire employees. The fact that he consulted or advised with some superior officer in-the company does not change the situation. St. Marys Academy v. Railways Ice Co., supra, cited A. & P Rld. Co. v. Reisner, 18 Kan. 458, in support of the proposition that “such an employee has no authority to bind his employer to pay medical or hospital bills.” The case cited held that a station agent of a railroad company was without authority to employ a hotel keeper to furnish board and lodging to a disabled brakeman. No contention was made that a station agent had authority to hire the brakeman or that the brakeman was in any way under; his supervision. Respondent cites Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389, which held that an act was within the scope of an agent’s authority when a reasonably prudent person having knowledge of the nature and usages of the business would be justified in supposing that he is authorized to perform it. Under this principle respondent contends that no reasonably prudent person who had worked at the mill for only one day would be justified in assuming that Goodrich had authority to bind the mill in regard to medical treatment. We cannot agree with that contention. Under the facts heretofore recited we think that Chamberlain was amply justified in assuming that when Goodrich authorized the treatment he was acting within his authority. (2) Was there evidence sufficient to support an award based on total loss of the use of the third finger of the right hand? On this question respondent’s argument is based on the report and testimony of Doctor Schaffer with reference to the injury to the fingers of the right hand. On September 8, Doctor Schaffer made a report from which the following is taken: “Will injury result in permanent defect? Some. “If so, what? Inability to flex last three fingers of right hand normally. “In case of member give: (1) Period of total loss of use. A. To August 6, 1938. (2) Resultant percentage of permanent loss of use of member. A. Ten percent.” On cross-examination he testified as follows: “I haven’t any idea at the present time; as to the extent of the disability of the ring finger. I don’t do enough compensation work to know how they figure' these disability things. I wouldn’t want to say. There is some disability there but I don’t know how to figure it. I don’t remember what I said in the report I made on September 8, as to the extent of the disability. This that you hand me is my report and my signature. In the report I said, ‘The injury will result in some permanent defect. Unable to flex last three fingers of right hand normally. Period of total loss of use, to August 6, 1938. Resultant percentage of permanent loss of use of member, ten percent.’ “That is what I said, but I don’t know. That is a guess on my part. That is the only estimate I have made. That is the only one I would make' now and I don’t know whether that is right or not. That ten percent disability was to the three fingers. Those three fingers of the right hand we are' talking about. Two of those fingers are not a^ bad as the other. “Q. What, is the percentage of loss in your opinion of the bad one, the ring finger? A. I tell you I don’t know. “Q. Those things as time goes on become more flexible, don’t they? A. In a younger person, I would say yes. In him, I can’t tell you what it will do. “Q. You don’t know? A. No. “Q. Is it perfectly possible those fingers will straighten themselves out so that he can go ahead and use them from now on? A. I doubt it very much. “Q. Will it in your opinion do that, with exception of the ring finger? A. I doubt that. They will get some better, but I doubt if they will ever get back to normal. “Q (By the commissioner). Is Mr. Chamberlain able at this time to close his hand and make a fist out of it? A. I don’t think so. “Q (By the commissioner). Do you think he will ever be able to do that, insofar as it relates to the ring and little finger? A. I doubt if he will.” He further testified: “He cannot bend the little finger and ring finger of the right hand very much. I doubt if Mr. Chamberlain will ever regain the use of his right hand so he can close the third and fourth fingers of that hand down on a hammer or tool of that kind so he could grip it firmly and be able to use it. I don’t think the other finger besides the ring finger will ever get back to normal. Mr. Chamberlain is not able to close his hand and make a fist out of it and I do not believe he ever will." On this testimony respondent contends that the court had no evidence to support total disability of the third finger. It argues that since Doctor Schaffer testified to a ten percent disability for each of the three fingers, the maximum that could be awarded would be thirty'percent for the one finger. Doctor Schaffer testified not only with reference to the three fingers, but he testified that he doubted whether Chamberlain would ever regain the use of his right hand so that he could close the third and fourth fingers down on a hammer or tool of that kind so that he could grip it firmly and be able to use it. Upon this testimony instead of computing the award on the basis of the third finger an award might have been made based on partial disability of the whole hand. Approximately fourteen percent disability of the hand would have reached the same result in compensation. We are not prepared to say that the computation of compensation on the basis of total disability of the third finger constitutes reversible error. The disability of the fingér constituted the principal cause of the permanent loss of the full use of the hand, and an award based on full loss of the third finger is not excessive. The conclusions reached with reference to the first two contentions of the respondent make it unnecessary to deal with the respondent’s other assignments of error. We come to the contentions of the claimant: (1) Was the claimant also entitled, on the evidence, to an award based upon the disability of the fourth finger? It is true, as stated by the claimant, that there was testimony concerning the limited use of the little finger. We think, however, that this question has been sufficiently covered in our discussion of respondent’s second contention, and that there was no error in not making an award based on the little finger. (2) Did the court err in holding that an award based on a scheduled injury prevented allowance for temporary total disability during the weeks when the claimant was unable to work? The issue turns on the proper interpretation of that portion of subdivision (21) of G. S. 1935, 44-510, which reads as follows: “(21) Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section and no additional compensation shall be allowable or payable jor either temporary or permanent disability: . . (Italics ours.) We do not find this question free from difficulty. The language of the statute quoted appeared first as a part of chapter 232, Laws of 1927. Prior thereto the statute had provided that “the compensation for the foregoing specific injuries shall be in lieu of all other compensation, except the benefits provided in paragraph 1 of this section” (paragraph 1 referred to medical and hospital treatment, etc.). The substantially new words added in 1927 were “and no additional compensation shall be allowable or payable for either temporary or permanent disability.” The trial court, disagreeing with the position taken by the compensation commissioner, held that having made an award for a scheduled injury, based on the loss of the third finger, he could not under this limitation of the statute make an award covering the eight weeks of temporary total disability. Does the language of the statute require that rigid interpretation? If that is the only interpretation which can reasonably be given, then an award based on a scheduled injury, no matter how minor it might be, would preclude an allowance for total disability regardless of how long the period of total disability might have lasted. Under that interpretation an injured person might be confined in a hospital for a year or more, and yet suffer a very minor permanent injury — let us say of only ten percent, for a little finger — but if an award be made for the scheduled injury to the finger, he would be precluded from any compensation for the long period of total disability. Before examining this question more closely let us note clearly the instant situation. The claimant injured a finger. In and of itself the injury might not have materially affected any other part of his body, although the injury to the finger might be permanent. But he suffered a virulent infection of a character which Doctor Schaffer testified is frequently found in flour mills. This infection spread to his hand and threatened the loss of his right arm and even spread to his left arm. The infection necessitated several operations and kept the patient in the hospital for many weeks. Two employees might have suffered the same injury to a finger, and one get the infection and the other not get it. The infection, it is true, is clearly traceable to the injury which furnished the occasion for its entering the body, but by no means does such infection always take place after such injury. In fact it is the exception rather than the rule. Under these facts are we required to say that after the patient had been confined in the hospital and totally disabled for many weeks and that thereafter his only permanent disability was the partial loss of the use of the third finger, compensation for the latter precludes allowance for the former? Such an illogical result should not be reached unless the language of the statute unquestionably requires it. One of the principal cases relied upon by the respondent is the case of Neuhaus v. Hope Engineering Co., 132 Kan. 72, 294 Pac. 655. In that case the workman received an injury to the little finger of his right hand. The compensation commissioner allowed compensation for temporary total disability and for permanent partial loss of the use of the finger. The district court allowed: (a) eight weeks’ total disability, (b) fifty percent permanent partial loss of the little finger, and (c) twenty-five percent permanent partial loss of the use of the right hand. It was stated in the opinion that “the question is whether he can recover for permanent partial loss of the use of both finger and the hand,” and it was held that under the limitation of the statute he could not recover for both. The court said: “Under this schedule the claimant suffered permanent partial loss of use of the fourth or little finger. The injury was a specific injury under the schedule. He was entitled to compensation according to the schedule, and was allowed compensation for that injury according to the schedule. Can the claimant move up one anatomical step, and successfully contend his disability consists in part in loss of use of the metacarpus, or hand propel’, which was not injured, and which is rated much higher than loss of use of a finger? Under the old law he could.” (p. 74.) The court then held that the provisions of paragraph (21) supra, contained in the revision of 1927, prevented an award based on both the finger and the hand. The claimant’s hand was not injured other than the injury to the finger, and the court said: “Compensation for permanent partial loss of use of the little finger is exclusive of all other compensation for injury to that member, and no additional compensation may be allowed for disability of the hand.” (p. 75.) “The manifest purpose,” said the opinion “was to stop the pyramiding of compensation under this court’s interpretation of the old law in the cases which have been referred to.” It is clear in that case an allowance for both the hand and the finger would have constituted a “pyramiding of compensation.” But what was the final result reached by the decision? The judgment of the district court was reversed and the cause remanded with directions to render judgment in accordance with the award of the commissioner of compen sation. Accordingly, the claimant was allowed compensation both for temporary total disability and for permanent partial loss of the use of the finger. While some of the broad language used in the opinion seems to support the contention of the respondent here, the disposition of the case is squarely contrary to respondent’s contention. The Neuhaus case, supra, was discussed in the case of Thompson v. General Machine & Tool Co., 135 Kan. 705, 11 P. 2d 685. In that case an award for temporary total disability for seventy weeks was made and a finding that thereafter total disability would cease and the workman suffer a thirty-three and one-third percent permanent disability of his left arm. While the contentions do not entirely parallel those of the instant case, the same question that is here presented was raised and discussed. Referring to paragraph 21, supra, and to the holding of the Neuhaus case, this court said: “This provision is not applicable to the facts in this case and was enacted to overcome a defect in the old statute allowing double compensation for the same disability, or what has been termed as a pyramiding of compensation. It was held that when compensation was allowed for the loss of a finger, a part of the hand, no compensation could be allowed for the hand which was not otherwise injured. The language used, that the allowance was exclusive of all other compensation, means that it is exclusive for the specific injury. That is, that the specific loss of the finger was exclusive of other compensation for that specific loss. For instance, it means that compensation is not allowable for the loss of a leg and also of a foot which was a part of the leg, nor could there be an allowance for the loss of a hand and also the fingers on it. • Nor can the loss of a finger for which payment has been made under the schedule be added to the compensation for temporary or permanent disability for the particular injury of the finger.” (p. 708.) Thus, an award including compensation both for total temporary disability and for a scheduled injury to the arm was permitted to stand. A comparable result, also incompatible with respondent’s contention in this case, was reached in the case of Schweiger v. Sheridan Coal Co., 132 Kan. 798, 297 Pac. 688. In that case the only injury suffered by the workman was an injury to his right eye. An award was made based on scheduled injury to the right eye, but the claimant urged that he was also entitled to compensation based on injuries to the left eye. The alleged injury to the left eye did not occur at the time of the accident but developed sometime later, and the claim was that it resulted sympathetically from the injury to the right eye. Compensation was not allowed for the left eye, but this court did allow compensation for the eight weeks of total temporary-disability which followed the accident, in addition to that for the right eye. All the Kansas cases cited by respondent have been examined but we find none of them inconsistent with the conclusion reached herein. Respondent cites, for instance, Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228. In that case the claimant was awarded sixty percent loss of the use of a foot. He contended that the allowance should have been based on permanent partial disability instead of an award for the scheduled injury. The case is not applicable here. The same may be said for the case of Morris v. Garden City Co., 144 Kan. 790, 62 P. 2d 920, which involved a determination not applicable to the instant case. Respondent cites Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665. This is another case where this court refused to allow compensation for both scheduled injury to the third and fourth fingers of a hand, and for injury to the hand. The only permanent injury to the hand was the injury to the fingers. This was clearly another case of attempted “pyramiding of compensation” which the provision of the 1927 act was designed to prevent. In the case of Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429, the workman was injured by a large rock which fell upon him. As a result he was totally incapacitated for six months, but the only permanent injury which resulted was the loss of the use of his left foot. Compensation was allowed both for the scheduled injury to the foot and for the temporary total disability. Many cases have been cited from other states, both by appellant and appellee, but they are not very helpful here since they are all based upon particular statutes. Most of them are based upon language substantially as follows: “The compensation for the foregoing specific injuries shall be in lieu of all other compensation except the benefits provided for medical and hospital bills.” Some courts in interpreting and applying such language have permitted awards for both temporary, partial or total disability and for scheduled injuries, while others have taken the opposite view. Among those permitting awards for both are Oklahoma, Texas, Georgia and Virginia. New York and Pennsylvania are among the states taking the other view. (See 33 Fourth Dec. Dig., 730-732.) In the instant case an allowance both for temporary total disability and for the subsequent permanent scheduled injury to the fin ger certainly would not constitute any “pyramiding of compensation.” The permanent disability of the finger is something which followed the termination of the period of total disability. We believe that the views expressed in Thompson v. General Machine & Tool Co., supra, and the result reached in both that case and the Neuhaus case, supra, which are in line with the liberal construction placed by other courts upon statutes quite similar, represent the sounder view. The rigid construction contended for by the respondent would seem equally to apply to a case where in the same accident the workman suffered both a permanent scheduled injury and another injury which caused total or partial temporary disability, but left no permanent ill effect. In other words, if respondent’s interpretation is correct, an award for a scheduled injury would preclude any other compensation, even though there had been another and separate injury in the same accident. Admittedly, respondent does not so contend, and many decisions of this court negative such a result. We only suggest, incidentally, that such a result would logically flow from literal application of respondent’s interpretation. While the language of our statute might have been better framed, its purpose, in our opinion, was solely to prevent the “pyramiding of compensation”- — such as an award for both hand and finger when the only injury to the hand was the injury to the finger. In the instant case the total temporary disability was the result of the virulent infection which developed, and while it was caused or occasioned by the injury to the finger, it was something quite apart from the permanent disability of the finger after the total disability caused by the infection had terminated. In other words, as far as the permanent disability of the finger is concerned, an allowance for the temporary total disability did-not constitute an “additional compensation.” We think the purpose of the statutory limitation was to prevent “additional compensation” directly related to or based upon the permanent injury for which allowance is made under the schedule. The rigid interpretation urged by the respondent would lead to wholly illogical results, and we do not think the statute requires such an interpretation. Moreover, this court has frequently said that the workmen’s compensation act should be liberally construed to effectuate its purposes. (Roberts v. City of Ottawa, 101 Kan. 228, 165 Pac. 869; Palmer v. Fincke, 122 Kan. 825, 253 Pac. 583; Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542.) In accordance with the conclusions reached, we find’ the award made by the court should stand, but that the court erred in refusing to include an allowance based upon temporary total disability. The cause is remanded with directions to add to the award already made an allowance based on temporary total disability from June 6, 1938, to August 6,1938.

The opinion of the court was delivered by Allen, J.: In this appeal two related cases are consolidated. ■ Richard P. Hardesty, Jr., brought an action for divorce against Frances V. Hardesty in the district court of Johnson .county. On January 28, 1938, a decree of divorce was granted plaintiff on the ground of extreme cruelty and gross neglect of duty. ■ Under the' decree the care, custody and control of the minor child, Minta Christine Hardesty, subject to reasonable visitation by defendant, was granted to the plaintiff. Thereafter and on July 29, 1938, proceedings for the adoption of' the minor child were had in the probate court of Johnson county. The record shows that Richard P. Hardesty, Sr., and Christine Hardesty filed a written offer to adopt, such minor child; that Richard P. Hardesty, Jr., father of the child, filed a relinquishment of all right to such child; that these parties and the child were present in court; that the court thereupon by its order and judgment “doth declare Minta Christine Hardesty the minor child aforesaid, the child and heir of Richard P. Hardesty and Christine Hardesty aforesaid.” On January 4, 1939, Frances V. Hardesty, defendant in the divorce action, and mother of the minor child, filed an application in the probate court to vacate the order of adoption. It was alleged that petitioner had no notice of the adoption proceedings; that under the decree of divorce Richard P. Hardesty, Jr., was not given the absolute and unconditional control of the minor child required by statute G'. S. 1935, 38-106. It was further alleged that the probate court had no jurisdiction to make the order of adoption for the reason that the district court had retained jurisdiction over the minor child in the divorce decree; that extrinsic fraud was imposed on the probate court by the parties to the adoption proceedings “when they did not recite the reservation of visitation periods contained in the divorce decree in the adoption decree.” A motion to quash the application to vacate the order of adoption on the ground no appeal from the order was taken, and that the order of the court had become final and conclusive and that the probate court had no jurisdiction to revoke the order of adoption, was sustained by the court. On appeal to the district court the order of the probate court in sustaining the motion to quash was affirmed. The appeal in case No. 34,378 is from the order of the district court so made and entered. Under G. S. 1935, 38-106, it was not necessary to have the consent of the petitioner to the adoption proceedings. It is there provided: “If the parents of such minor child shall have been divorced, the consent of the parent to whom custody of such child shall have been awarded shall be necessary to authorize an order of adoption, but the consent of the other parent, though desirable, shall not be necessary. . . .” Under this provision the order of adoption could not be impeached for failure to serve notice on the petitioner. As stated, under the decree of divorce the custody of the child was given to the father, the plaintiff in that action. The adoption statute required the consent of the parent to whom the custody of the child was given. The consent of the father was given and the validity of the adoption was not affected by the fact that in the decree of divorce the petitioner was permitted to visit the child from time to time. Right of visitation does not give custody. The charge is made that extrinsic fraud was imposed on the probate court in securing the order of adoption. Appellee contends this question cannot be raised by a motion filed in the probate court. The proceeding before us is in the form of a motion to set aside a judgment- of the probate court for fraud under subdivision four of 60-3007. By section 60-3016 the provisions of 60-3007 are made applicable to probate courts. (See First Colored Baptist Church v. Caldwell, 138 Kan 581, 27 P. 2d 239.) However, under 60-3011 proceedings to vacate or modify a judgment on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of 60-3007 must be by petition. “On such petition a summons shall issue and be served as in the commencement of an action.” In State v. Soffietti, 90 Kan. 742, 136 Pac. 260, it was stated: “The proceeding to vacate, while incidental to the original action, is, in effect, a new action, equitable in character, and the initiatory steps are therefore very material. The code requires that not only a petition shall be filed, but that 'a summons shall issue and be served as in the commencement of an action.’ ” The record does not show that a summons was ever issued or served in this proceeding. Complaint is made of the failure to incorporate into the adoption decree the right of visitation allowed the defendant in the divorce decree. In the recent case of Chamberlin v. Thorne, 145 Kan. 663, 66 P. 2d 571, it was stated: “The statutes of this state do not require that the record of a probate court should set forth all the evidence introduced in an adoption proceeding; the record in the instant case did not purport to do so and the presumption is-in favor of the validity of the order of adoption and not against it.” (Syl. ¶ 3.) Clearly the failure to incorporate the recitals contained in the divorce decree into the judgment of adoption would not constitute fraud which would impeach the judgment of adoption. This being true the only remaining allegation of fraud is that “extrinsic fraud was imposed on the probate court.” But a general averment of fraud, without stating the facts upon which the charge is based presents no issue to be determined. (Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985; Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847.) We find no error in the action of the district court in sustaining the order of the probate court quashing the motion. In case No. 34,326 the defendant in the divorce action filed a motion on September 21, 1938, to modify that part of the decree of divorce giving the care and custody of the minor child to the plaintiff upon the ground of fraud and irregularity in obtaining the order of custody. The record shows that on the 12th day of December, 1938, the motion came on for hearing, the parties to the divorce action and their attorneys being present, “the court, after reading the motion of the defendant for such modification makes a demurrer sua sponte to the jurisdiction and after hearing arguments of counsel, finds that by the intervention' of the probate court adoption proceedings, the district court of Johnson county, Kansas, has lost jurisdiction of the minor child and refuses to hear defendant’s motion to modify the decree as to the care and custody of the minor child.” The appeal in case No. 34,326 is from this order of the district court. It is contended the district court erred in ruling it had no jurisdiction to hear and decide the motion to modify the decree as to the custody of the child. In the case of In re Hosford, 107 Kan. 115, 190 Pac. 765, a similar question arose under the juvenile court act. In that case the juvenile court had made a finding that a child was dependent and neglected and made an order giving her to the care of a children’s aid society. Thereafter the mother applied to the district court asking that the order made in a divorce case be modified, and that she be given the custody of the child. The court said: “The continuing jurisdiction of a court which has granted a divorce to supervise the custody of minor children of the parties cannot be interfered with by another court which except for such retained jurisdiction would have authority under a writ of habeas corpus to make the same inquiry and grant the same relief. (In re Petitt, 84 Kan. 637, 114 Pac. 1071.) The juvenile court, however, stands upon a very different footing. It is specifically given jurisdiction ‘of all cases concerning dependent, neglected and delinquent children.’ (G. S. 1915, 3065.) The conditions under which it may take control of a child and the manner in which it may exercise it are quite different from those existing in the case of any other tribunal. It is of course inferior to the district court, to which an appeal in some instances may be taken from its rulings (G. S. 1915, 3076), and which may exercise supervision and control over it to prevent and correct errors and abuses. (G. S. 1915, 2957.) But this appellate and supervising power must be exercised directly and according to some prescribed method. The district court has no authority, merely by reason of its broader powers, to disregard the action of the juvenile court. If, for instance, a boy whose custody had been awarded by the district court to his father should by reason of some serious delinquency be regularly committed by the juvenile court to the state reformatory, assuming that to be authorized by the statute (G. S. 1915, 3073), or — as often happens — to the state industrial school, it would seem quite out of keeping with the general plan of administering such matters if the duration of his stay there could be controlled by the district court in virtue of its reserved jurisdiction, and that situation would not be essentially different from the one here presented, so far as relates to the jurisdiction of the district court, for even such a commitment would not be for the purpose of punishment, but for the welfare of the child. (In re Turner, 94 Kan. 115, 145 Pac. 871.)” (p. 117.) The reasons supporting the decision in the Hosford case are applicable here. Our statutes, G. S. 1935, 38-105, 38-106, especially confer jurisdiction upon the probate court in the adoption of children. If the parents of a minor child shall have been divorced, “the consent of the parent to whom custody of such child shall have been awarded shall be necessary to authorize an order of adoption, but the consent of the other parent, though desirable, shall not be necessary.” (38-106.) The record shows the requirements of the statute were complied with. The adoption having been regularly made, the status of the child was changed — it was no longer the child of its natural parents, but by virtue of the adoption became the child of the adoptive parents, and the jurisdiction of the district court in the divorce proceedings ceased. The welfare of the child is the matter of paramount importance. To accomplish that end the adoption statutes were enacted. An order of adoption regularly made by the probate court and not appealed from (See Heydorf v. Cooper, 90 Kan. 511, 135 Pac. 578), determines the status of the child. Manifestly if the district court could make subsequent orders in the divorce action as to the custody and control of the child it would to that extent nullify the adoption statute. We do not think such an impasse was contemplated by the legislature. Of necessity when the adoption in the probate court was final, upon proceedings in conformity with the statute, the jurisdiction of the district court ceased, and there was no error in the action of the district court in refusing to modify the custody decree. The judgment of the trial court in both actions is affirmed.

The opinion of the court was delivered by Smith, J.: This was an action to recover money. Judgment was for plaintiff. Defendant appeals. The petition alleged that about May 20, 1932, the defendant entered into a written contract with J. D. A'dam, wherein it was agreed that Adam would act as general agent for defendant in Ottawa, Kan.; that the contract provided for the payment of Adam on a commission basis; that payment of renewal commissions was to be also upon the term of service with the company; that for the term of service of two full years the general agent should be entitled to renewals, if earned, to the sixth year of insurance, and for the term of three full years’ service the general agent should be entitled to renewals, if earned, to the tenth year of insurance; that renewal commissions should not be paid after termination of the contract in event the general agent should not have completed two full years’ service. The petition further alleged that upon the date of the above agreement Adam was and had been employed by the plaintiff as manager; that the contract mentioned was made with Adam because defendant stated that it would not make general contracts with corporations, and in fact it was made for the benefit of the plaintiff by Adam as its employee, and the plaintiff, through the efforts and time of its employees and the general facilities of the plaintiff, produced such insurance business as was produced under the contract; that plaintiff is entitled to all the interest of Adam in any commissions due under the contract. The petition further alleged that about March 1, 1934, J. D. Adam discontinued his employment by plaintiff; that plaintiff desired to continue its general agency for defendant, and to that end defendant made an oral contract with plaintiff that if Garland Elliott, the succeeding manager of the plaintiff, would enter into a general agency contract with de fendant as the employee of plaintiff, then defendant would pay plaintiff such renewal commissions as would have accrued under the general agency contract of Adam, based upon the time computed from the date of the Adam contract to the end of service by Elliott; that in consideration of this agreement the plaintiff caused Elliott to enter into a general agent’s contract with defendant on or about March 6,1934; that Elliott remained in the employ of plaintiff until August 1, 1935, and procured new life insurance business and serviced existing contracts in furtherance of the oral contract until August 1, 1935 — all through the efforts and facilities and expense of plaintiff. The petition further alleged that the defendant kept accounts of renewal commissions accruing to the plaintiff here under the oral agreement, evidencing the same by monthly statements of ledger account, mailed to the plaintiff each month; that the last ledger account, dated September 28,1937, showed a balance credited and owed to the plaintiff by defendant in the amount of $1,339.88. The petition further alleged that defendant represented orally and by letters to plaintiff that the renewal commissions accruing in accordance with the oral agreement were being credited to the plaintiff, but could not be paid until a release was obtained from Adam, but that defendant refused to pay the amount due even though demand had been made. The petition then alleged that plaintiff believed defendant was entitled to some credits upon its account stated as of September 28,1937, in the amount of $1,339.88, by reason of payment of agent’s commissions; that the amount of these payments was unknown to plaintiff, and that since September 29,1937, under the oral agreement additional renewal premiums had accrued to plaintiff. The prayer was that plaintiff recover from defendant $1,399.88 with interest from September 28, 1937, less any proper deductions, and for an accounting. The answer of defendant was a denial that it had any dealings with plaintiff or entered into any oral contract with it, or that plaintiff had any interest in the Elliott contract, or that it ever represented to the plaintiff that renewal commissions on the alleged contract were being credited to plaintiff. The reply was a general denial. The case was submitted to the jury on the issue of whether the plaintiff or defendant should prevail. The jury found for the plaintiff. The defendant filed a motion for judgment, notwithstanding the general verdict, because the undisputed evidence showed that the alleged contract was in violation of the law; that plaintiff had no authority to make the contract; that it was in violation of the statute of frauds. This motion and a motion for new trial were overruled. Pursuant to a subsequent hearing the trial court ordered that the plaintiff should recover from defendant in accordance with the prayer of the petition, and that the defendant should account to plaintiff for all insurance contracts written by it under authority of the general agency contract during the period from May 20, 1932, to March 5,1934, and that the renewal commissions accruing thereon be paid to the plaintiff upon the schedule of rates appearing in the general agent’s contract; that the plaintiff was entitled to receive from the defendant, The Liberty Life Insurance Company, a corporation, the renewal premium commissions for a period of ten years from the date of each individual policy issued. The parties agreed as to the amount due, pursuant to the above method of accounting, and judgment was entered accordingly. At the conclusion of tire evidence of plaintiff defendant demurred to it. This demurrer was overruled. The overruling of this demurrer and the overruling of its motion for judgment are the first errors of which defendant complains. The first argument of defendant is that the evidence did not prove an oral contract, as alleged. There was evidence in the record that Adam, while the general-agency contract was in his name, had received $50' a month from defendant and had paid that amount to plaintiff each month; that he had been general manager of plaintiff and that he severed his connections with plaintiff on March 5,1934. This was not quite two years after he made the general-agency contract on May 20, 1932. The evidence was that Elliott came to the offices of the defendant, advised the company of the fact that Adam was leaving the employ of plaintiff, and that plaintiff desired to continue as the general agent of the defendant. There was the following testimony as to what took place at this conference: “Q. Was there any conversation as to whom these renewal premium commissions would be paid? A. To the Security Loan and Investment Company. “Q. Did they say why it was they desired to pay it to the Security Loan and Investment Company? A. The Security Loan and Investment Company had promoted a general agency and provided funds in order to carry on the agency and commissions under the Adam contract. “Q. What was to be the basis of payment to the security company for determining what was owing? A. It would be on the same basis as outlined in the contract. The same percentage as provided in the Adam contract. “Q. Now, with regard to the length of service, and two-year provision in there, what was the substance of what these men talked about? A. That the service date began with the date of Adam’s contract, which was May 20, 1932, and terminated at the time there of my service, under my general-agency contract. “Q. Now, all of these agreements upon the part of the Liberty Life Insurance Company were made in consideration of what act or acts that the Security Loan and Investment Company would have to do? A. That I, as manager of the Security Loan and Investment Company, would enter into an agreement with the Liberty Life Insurance Company to carry on the agency the same as it had been done when Mr. Adam was there. “Q. For whose benefit was that written agent’s contract that you made with them? A. For the Security Loan and Investment Company. A written general-agency contract was entered into at that time.” Again this witness testified: "I told them that Mr. Adam had been discharged from the Security Loan • and Investment Company, and that the company wished to continue with the life insurance business, and since Mr. Adam was then leaving, they had designated me to act in their behalf and gave me a letter of authority to present to the Liberty Life Insurance Company and try to work out some plan so we could go ahead with the agency. “Q. Was that about the sum and substance of the conversation? A. The matter of renewal commissions was discussed under Adam’s contract. They assured me that these would be paid to us. “Q. By ‘us,’ who do you mean? A. I mean the Security Loan and Investment Company. “Q. What commissions are referred to, do you know? A. Commissions under Adam’s general-agency contract. “Q. Was it renewal commissions to the soliciting agent? A. Under the whole contract, was my understanding. “Q. That was the sum and substance of the conversation? A. That was the substance of it. Yes.” There was other evidence as to the fact that this contract was entered into. The above is, however, ample to warrant the jury in finding that such a contract was made and is good as' against a demurrer to the evidence or a motion for a directed verdict. There is no question raised here but what the contract of Adam with defendant entitled him to renewal commissions if he had the agency two years, and that he would not be entitled to any renewal commissions if he did not keep it two years. Defendant argues that the words “as would have accrued under the general-agency agreement of J. D. Adam” mean nothing, because no renewal commissions had accrued to Adam. It is clear that all the parties understood that the words meant such commissions as would have accrued to Adam had he kept on working under the contract for two years. This seems to us as clear a statement of what was meant as could be made. The next argument of defendant is that the oral contract could not be performed within the space of one year and therefore is void because contrary to the statute of frauds. The oral contract provided briefly that if Elliott, as the employee of the appellee, would enter into a general agent’s written contract similar to that in the name of J. D. Adam, and carry on as such the general agency, the same as had been done under the managership of Adam, then the appellant would pay appellee renewal premium commissions upon insurance written under the so-called Adam contract. Also, that the required term of service would be calculated by the space of time from May 20, 1932, the date of the Adam contract, to the end of service by Garland Elliott as the employee of appellee and under the contract in his name dated March 6, 1934. At the time Elliott entered into this contract only about two months of the two-year period remained to be performed. By May 20, 1934, plaintiff became entitled to the renewal commissions under this oral contract. Where a contract can be performed within a year it is not void under the statute of frauds. (See Larimer v. Kelley, 10 Kan. 299.) In Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. 100, this court said: “We remark again that a eontraot will not be adjudged void by reason of the last prohibition in section 6 of the statute of frauds and perjuries unless it affirmatively appears that, fairly and reasonably interpreted, it does not admit of performance within the year. The fact that very likely performance will require more than a year, or that performance is not completed within the year, does not invalidate it. Unless the court, looking at the contract in view of the surroundings, can say that in no reasonable probability can such agreement be performed within the year, it is its duty to uphold the contract. The presumptions are all in favor of validity.” (p. 512.) We hold that this oral contract could be performed within a year and hence was not void under the statute of frauds. Defendant next argues that the oral contract was void because it was in violation of G. S. 1935, 40-239. That section defines an insurance agent as an individual authorized in writing by any insurance company lawfully qualified to transact the business of insurance, to negotiate or effect contracts of insurance on behalf of the insurance company; or secondly, any officer or agent of a corporation which is permitted by law to negotiate or effect such contracts of insurance, where said corporation holds a direct agency appointment from the insurance company. Defendant argues that plaintiff violated this provision because it had no power to negotiate insurance. The fact is that the plaintiff did not negotiate insurance, nor did it act as an insurance agent. It only furnished the means with which others were able to do so. We see no violation of the law in this. Defendant next argues that plaintiff had no authority to make the contract alleged to have been made and the contract is ultra vires and void. What has been said with reference to the argument that the oral contract was in violation of G. S. 1935, 40-239, is an answer to the above argument. Defendant next argues that the oral contract was void because it attempted to change the terms of a written contract. This argument does not take account of the fact that the oral contract, upon which this action was brought, was collateral to the written contract. The parties here do not seek to change the terms of either the contract between Adam and the plaintiff or between Elliott and the plaintiff. The oral contract was between plaintiff and defendant, and the only purpose served by the written contract was to furnish the means of measuring the consideration to be paid plaintiff when the oral contract was carried out. The rule is announced in 12 Am. Jur. 758, as follows: “Moreover, the parol-evidenee rule does not affect a purely collateral contract distinct from, and independent of, the written agreement, though it relates to the same general subject matter and grows out of the same transaction, if it is not inconsistent with the writing.” Defendant next argues that part of the claim of plaintiff is barred by the statute of limitations. It is pointed out that the action was commenced more than four years after the contract was made. The record discloses that the action was brought upon an oral contract and a mutual, open and current account between the parties. The last credit upon the account was made September 28, 1937, in the amount of $11.16, bringing the amount owed plaintiff to $1,399.88. This was clearly an account kept in writing and in which was set down by the parties a connected series of debits and credits, and the parties intended the individual items should not be considered separately, but as a continuation of a related series. In such a situation the following rule applies: “Where there is an open, running, mutual account between two persons, each person does not have a separate cause of action for each separate item of the account, but only the person in whose favor there is a balance due on the account has a cause of action for such balance against the other. The statute of limitations does not run against each item separately, but only against the balance due; and it will commence to run only from the time of making the last item rightfully credited to the party against whom the balance is due. Each item thus credited to the party against whom the balance is due is a payment or part payment, not of any particular item against him, but of the balance due against him, and is, in one sense, a payment or part payment of every item rightfully charged against him in the whole account.” (Waffle v. Short, 25 Kan. 503, syl.) The statute did not begin to run upon any part of the account until September 28, 1937. The action was brought on July 16, 1939, and the statute had not run. Defendant next argues that there is no evidence that plaintiff performed its part of the contract. Under the terms of the oral contract plaintiff agreed to cause Garland Elliott to enter into a general agent’s contract with defendant. All parties admit this was done. The general agency was carried on at the office of plaintiff from March 6, 1934, to August, 1935, just as it had been done from May 20,1932, to March 6,1934. One of defendant’s own witnesses stated that the old business had been serviced during the above times. There was, therefore, sufficient evidence to justify submitting to the jury the question of whether the oral contract had been performed. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Allen, J.: Two actions were brought by appellant to recover taxes paid for years 1934 and 1935 upon its toll bridge across the Missouri river at Atchison. In case No. 33,711 the action was to recover taxes which had been paid without protest, and the appeal is from a judgment sustaining a demurrer to the petition. In case No. 34,090 the action was to recover taxes paid under protest. This case was tried to the court, and the appeal is from judgment sustaining a demurrer to the evidence. We first examine the latter case' — No. 34,090. The taxes paid were assessed under our statute G. S. 1935, 79-322, which provides: “That all persons, companies or corporations owning, controlling or operating any highway or railroad bridge over any stream or river forming the boundary line between this and any other state shall be required to list the same for taxation, and the same shall be assessed and taxed at its true value in money, as personal property; and in arriving at such value, if such bridge is constructed over a navigable stream, the value of the same to the center of the channel of such stream, together with all rights, privileges and franchises connected therewith or belonging thereto, shall be taken into consideration in ascertaining the true value of such bridge property for taxation; and it shall be the duty of the president, vice-president or superintendent of such bridge to make return to the proper assessor; giving the dimensions of said bridge in the county where it is located and its earning capacity, together with a full statement of all of its rights, privileges, and franchises, and the same shall be returned by the assessor, as by law in such cases made and provided.” As stated, the bridge upon which the taxes were paid is across the Missouri river east of the city of Atchison, and at a point where the river runs in a southerly direction. The charter of the city of Atchison (Private Laws of the Territory of Kansas, 1858, ch. 77) established the eastern boundary of the city as “the middle of the main channel” of the Missouri river. By ordinance No. 866, passed in March, 1888, the eastern boundary of the city was described as being along the west bank of the river. The ordinance did not purport to detach any land from the eastern part of the city, although it did take some additional territory into another part of the city. Subsequent ordinances restated the boundaries as in ordinance No. 866. Appellant contends that the restatement of the boundaries in ordinance No. 866, and in the subsequent ordinances, detached that portion of the territory between the west bank and the middle of the main channel of the river; that the segment of appellant’s bridge across such strip of territory was not in the city of Atchison, and, therefore, the assessment and levy of the tax on such segment or portion of the bridge was void. The question presented — and perhaps the vital question in this case — is whether ordinance No. 866, passed in 1888, was valid and operated to vacate and exclude the territory between the west bank and the middle of the main channel from the boundaries of the city. The following stipulation appears in the record: “And further: ‘that in 1858, chapter 77, Laws of the Territory of Kansas, granted a charter to the city of Atchison, which charter was duly adopted by said city at a special election held March 2, 1858, and by ordinance of the city of Atchison compiled and revised in 1860, the eastern boundary of said city was fixed as the middle of the main channel of the Missouri river. Several ordinances of the city of Atchison were passed and took effect purporting to change the eastern boundary of said city and to exclude territory which had been granted by charter and adopted by ordinance as aforesaid, but in no instance did the city of Atchison or its officers or agents file a petition in the office of the county clerk of Atchison county, Kansas, or directed to the board of county commissioners of Atchison county, Kansas, praying for a vacation or exclusion of territory as far as the eastern boundary of said city is concerned, nor was there any hearing before the board of county commissioners ever had to exclude or change the eastern boundary of the city of Atchison from the middle of the main channel of the Missouri river and at all times referred to in this paragraph of this stipulation the city of Atchison, Kansas, has been located in Atchison county, Kansas.’ ” The general legislative scheme for the enlargement of city boundaries and for the vacation and exclusion of territory therefrom is found in G. S. 1935, chapter 12, article 5. When the city boundaries are to be enlarged, G. S. 1935, 12-501, provides the governing body of the city shall in the name of the city present a petition’to the board of county commissioners, and the following sections provide the procedure to be followed. Where land included within the city boundaries is to be vacated and excluded therefrom, the procedure is set forth in section 12-504 and the succeeding sections. Section 12-504 provides that whenever the owner or owners of any townsite or part of a townsite, or of any addition or part of an addition to any city shall desire to have the same vacated or shall desire to exclude any tracts from the boundaries of the city wherein situated, public notice shall be given that a petition has been filed in the office of the county clerk of the county, directed to the county commissioners of the county “praying for such vacation or exclusion,” and stating the time for hearing before the board. The section provides that “the provisions of this act” shall not apply to any incorporated city unless the governing body thereof shall recommend that such petition be granted. The evolution of this statute discloses a consistent legislative plan for the vacation and exclusion of property from the boundaries of towns and cities — the petition or application must be to the county board, public notice must be given containing a description of the street, alley or property to be vacated or excluded, stating the time of the hearing by the board, and that the board shall make such order. It was so provided in the original statute, Compiled Laws of 1862, chapter 108, section 1. G. S. 1868, chapter 108, section 1, page 1071, provided that for the vacation of any public grounds, street or alley, the application was to be made to the county board for the order of vacation. The Laws of 1877, chapter 190, section 1, contained a similar provision. The Laws of 1891, chapter 245, section 1, amended prior acts, but provided for a hearing before the board of county commissioners. Under the Laws of 1897, chapter 267, section 1, provided that the application should be made to the district court. The Laws of 1905, chapter 519, section 1, is similar to G. S. 1935, 12-504, and provided that the petition for the vacation or exclusion of any tract must be presented to the board of county commissioners. Notwithstanding the legislative policy shown by an unbroken chain of statutes since 1862 denying to the governing body of a city the authority to exclude any territory from the city boundaries, appellant confidently asserts that the city of Atchison had the power to enact ordinance No. 866 in the year 1888. In support of this view appellant relies upon G. S. 1868, chapter 18, article 2, section 34, which provided: “The city council, in their discretion, may add from the territory adjacent to the city limits, as defined and existing at the date of the approval of this act, such other wards as they may deem proper; and shall, in every case, have power to increase or diminish the city limits in such manner as in their judgment and discretion may be to the benefit of the city: Provided, That the number of wards shall not be less than four; but- in no case shall they have power to increase the city limits without first obtaining the -assent of a majority of all the legal voters, residents of the teri'itory proposed to be added to the city limits.” Appellees assert that this section was repealed by Laws of 1874, chapter 46, which contained a revision of the laws on this subject. As our attention has not been called to an appearance of this "in- crease or diminish” provision subsequent to 1874, the contention of appellees would appear to be well founded, and therefore there was no statute in force in 1888 to support ordinance No. 866 upon which appellant relies. However, it is worthy of note that at the same session of the legislature at which the section relied upon by appellant was passed two other statutes were passed specifically dealing with the vacation of land and diminishing the boundaries of cities and providing specific procedure therefor. Thus G. S. 1868, chapter 108, section 1, page 1071, provided that any person seeking to have any street, alley or public grounds vacated should, after due notice, make application “to the county board for the order of vacation.” Also, G. S. 1868, chapter 109, article 3, sections 23 and 24, made provision for the vacation of lands laid out and platted into towns, cities or villages. The procedure for such vacation and exclusion required “written petition of any one or more persons, who, by their affidavit, represent that they are the owners of a majority of the lots,” notice by publication of the time of the hearing before the county board, with opportunity for protest, etc. These statutes, being in pari materia, are to be construed together. In the case of Shortall v. Huppe, 99 Kan. 639, 162 Pac. 319, it was said: “In the ease of In re Hall, Petitioner, 38 Kan. 670, 17 Pae. 649, this court said: “ ‘Laws enacted by the same legislature about the same time and concerning the same subject matter, being in pari materia, are to be taken and considered together in order to determine the legislative purpose and arrive at the true result.’ (Syl. H 1.) “(See, also, State v. Young, 17 Kan. 414; Telegraph Co. v. Austin, 67 Kan. 208, 212, 72 Pac. 850; State v. Pauley, 83 Kan. 456, 461, 112 Pac. 141; Hibbard v. Barker, 84 Kan. 848, 851, 115 Pac. 561; Railway Co. v. Railway Commissioners, 85 Kan. 229, 233, 116 Pac. 896; and 36 Cyc. 1086, 1151.)” (p. 642.) See, also, In re Estate of Edgington, 144 Kan. 478, 480, 61 P. 2d 873; Voran v. Wright, 129 Kan. 1, 281 Pac. 938, 129 Kan. 601, 284 Pac. 807. From the statutes outlined above we have an undeviating course of legislation from 1862 — three quarters of a century — denying to cities the authority to diminish their boundaries and exclude territory therefrom by the mere passage of an ordinance. The legislature has seen fit to vest that authority in the board of county commissioners. It is clear the statute of 1868, relied upon by appellant, did not authorize the city to change the boundaries by ordinance No. 866 or the subsequent ordinances. Appellant directs our attention to G. S. 1935, 13-201, as having some bearing on this question. That section reads: “The corporate limits of any city shall remain as they now are, and until changed by ordinance, as herein provided. Such limits shall be declared by ordinance, and upon any change being made therein the entire boundary as changed shall be declared in one ordinance.” Appellant contends that section 13-201 is simply a curative statute. It claims that the reenactment or amendment of that statute at various times since 1868 was for the purpose of curing legal defects that might have arisen in various city boundaries over the state since the prior enactment of the same statute. This statute was first enacted in 1868, and first appeared in General Statutes of 1868 as chapter 18, article 1, section 3, as follows: “The corporate limits of any city heretofore incorporated, and subject to the provisions of this act, shall remain as heretofore until changed by authority of law.” In 1874 the statute was reenacted in exactly the same language along with many other statutes originally appearing in G. S. 1868, chapter 18. See Laws of 1874, chapter 46, section 3. In 1881 the statute was amended and appears in Laws of 1881, chapter 37, section 7, as follows: "The corporate limits of any city of the first class shall remain as heretofore, until changed as provided by law. Such limit shall be declared by ordinance, and upon any change being made therein, the entire boundary as changed shall be declared in one ordinance.” In 1903 the statute was amended slightly and reenacted (Laws 1903, ch. 122, sec. 8) in the same language in which it now appears. This statute was again reenacted without change in 1907. (See Laws of 1907, ch. 114, sec. 7.) • When the eastern boundary of the city was first described as at the west bank of the river, in 1888, by ordinance No. 866, the 1881 law set forth above was in effect. Under appellant’s theory that law operated as a “statute of repose” as to all city limits in effect at that time, and if a change were made later, although invalid, the next enactment of the statute in 1903 adopted that change and all question of the legality of the alleged change was set at rest. We do not so construe the statute. When the boundaries of a city are enlarged by taking in adjacent territory, or where the boundaries are contracted by the vacation or the exclusion of land from the city, such addition or exclusion necessarily effects a change in the city limits. When such change is made it becomes the duty of the governing body of the city to declare by ordinance the entire boundary of the city. (Horner v. City of Atchison, 93 Kan. 557, 558, 144 Pac. 1010.) The theory of appellant that G. S. 1935, 13-201, validated ordinance No. 866 and subsequent ordinances purporting to change the eastern boundary of the city from the center of the main channel of the river as fixed by the charter in 1858, to the west bank of the river, cannot be sustained. Nor are we able to agree to the further contention of appellant that the decision in State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873, is res judicata as to the question involved in the present action. The action was brought in the name of the state of Kansas, on relation of the attorney general, to oust the city of Atchison from exercising certain powers it had assumed to exercise in the passage of ordinance No. 3096, purporting to annex 65 acres of land to the city. It appears that’the ordinance was based on section 872, G. S. 1909, now G. S. 1935, 13-202. It was held the city had not exceeded its corporate power; that the'ordinance incorporating the 65-acre tract was valid. The boundary line involved in that action is not the eastern boundary line involved in the present action. As stated above, ordinance No. 3096, effective August 11, 1913, purported to incorporate the 65-acre tract into the city under section 872, G. S. 1909, now G. S. 1935, 13-202. The validity of the ordinance for the purpose of the admission of the 65-acre tract was the question at issue. It was held to be valid for that purpose. There was not, however, any issue before the court as to the exclusion of a strip of territory between the middle of the channel and the west bank of the Missouri river. That question was not before the court. If ordinance No. 3096 not only described the 65-acre tract to be admitted, but also traced the general corporate limits of the city as provided for by G. S. 1935, 13-201, and the liné so drawn would exclude territory from another part of the city, obviously the decision would be res judicata only as to questions before the court. It determined the validity of annexation of the 65-acre addition; it did not determine the validity of the exclusion of the strip of land on the eastern boundary of the city. Furthermore, to make a former judgment a bar to the maintenance of a subsequent action certain conditions must exist. Thus in Rea v. Telephone Co., 88 Kan. 82, 127 Pac. 603, the rule was stated: “An issue is res judicata only when the following conditions exist: identity in the things sued for, identity of the cause of action, identity of persons and parties to the action, and identity in the quality of the persons for or against whom the claim is made.” See, also, Henry v. Railway Co., 98 Kan. 567, 158 Pac. 857; Hayes v. Insurance Co., 104 Kan. 230, 178 Pac. 432. Neither the plaintiff here, nor any defendant save the city of Atchison, was a party to such former suit. There being neither identity of parties nor in the subject matter sued for, clearly the doctrine of res judicata cannot be invoked. Appellant also invoked the doctrine that the rule of res judicata applies as well to things which could have been decided as it does to things actually decided, and asserts that this rule applied to the decision in State, ex. rel., v. City of Atchison, supra, determines the eastern boundary of the city as being along the west bank of the river. The rule, however, has well-established limits. In Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825, the rule was thus stated: “The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.” (Syl. II1.) See, also, Brush v. Rich, 83 Kan. 531, 112 Pac. 158; Paris v. Golden, 96 Kan. 668, 153 Pac. 528; Probst v. Weigand, 133 Kan. 232, 299 Pac. 611; Campbell v. McDonald, 136 Kan. 280, 15 P. 2d 462; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; 2 Freeman on Judgments, § 676. As the cause of action is not the same as in the former case, and not between the same parties, the rule of res judicata under the doctrine invoked does not apply. We are next to consider the validity of the action of the county assessor in raising the assessed valuation of the bridge from $330,000, as declared by appellant, to $500,000. Appellant contends that the action of the county assessor in raising the valuation “was without jurisdiction or authority and utterly void.” As shown by the evidence, the assessment was made in the following manner: The deputy county assessor left the proper blank with the superintendent of the bridge company; several days later he returned and got the blank in which the part of the bridge in Kansas had been returned under the column “valuation by owner” as $330,000; after the return had been attested the deputy penciled in the same figure. At that time it seems that appellant’s superintendent remarked something to the effect that he supposed the valuation would be raised to $500,000, as it always had been. The deputy then took the return of the appellant to the county assessor’s office and gave it to the county assessor and at that time mentioned the above statement made by the bridge superintendent. The county assessor immediately ordered another deputy in the office to change the valuation to $500,000, and the change was then made. The county assessor testified he told the deputy bringing the return to notify the bridge superintendent that the valuation had been raised to $500,000; that he thought he mailed a notice to that effect; and a notice of the meeting of the county board of equalization giving the valuation of the property at $500,000 was introduced in evidence after having been produced from the bridge company’s files. The bridge superintendent testified he had notified the home office of the change in valuation. The statute under which the assessor acted is G. S. 1935, 79-312, which provides: “It shall be the duty of the assessor, and he is empowered and authorized, to increase or diminish the value of any or all items of personal property as listed by any person, company or corporation, if he is satisfied that said property has been returned below or above its true value in money; but said change in value shall be made at the time the return is made to the assessor.” The plaintiff contends that the above statute refers only to the deputy assessor. We find nothing in the above statute to lead to such a construction. In the case of Girard Gas Co. v. Crawford County Comm’rs, 139 Kan. 452, 32 P. 2d 226, the above statute was construed. It was there held that the assessor.could not increase the valuation of a taxpayer’s property after hé turned the tax rolls over to the county clerk and the tax rolls had thus passed out of his hands. There was nothing of that kind done in the case now under consideration. In the Girard Gas Company case it was said: “The assessor may change a valuation which he is satisfied is too low, but the statute expressly provides the change shall be made at the time the taxpayer’s return is made to the assessor. (R. S. 79-312.)” (p. 455.) In this case the change in valuation was made when the taxpayer’s return first came to the office of the assessor and the taxpayer was notified at once. The requirements of the statute were followed. Plaintiff next contends the assessment was raised due to the arbi trary and capricious action of the county assessor. No facts were either pleaded or produced in evidence to sustain such a contention. The assessor testified that he valued the whole bridge property at one million dollars, and took half of that amount as the value of the property in Kansas. Furthermore, he testified, and the record shows the fact to be, that the property had been valued at $500,000 for taxes in Kansas for approximately twenty years. It seems that the company had never made any complaint about the valuation. If the company thought the valuation for 1935 or for the preceding years was too high it could have brought the matter to the attention of the county board of equalization and the state tax commission in the manner provided by law. Plaintiff cannot complain that the valuation was not for a proper amount in this case. That was a matter for the assessing officers. (Eureka B. & L. Ass’n v. Myers, 147 Kan. 609, 78 P. 2d. 67.) In the absence of evidence to the contrary'it will be presumed that these officers acted in good faith. We find no error in the judgment of the'trial court in sustaining a demurrer to the evidence in case No. 34,090. In case No. 33,711 the action was to recover taxes paid without protest. The claim is made that the taxes were paid under a mutual mistake of fact, the mutual mistake being that the eastern boundary line of the city was the middle of the channel of the Missouri river. The action is predicated on the theory that the eastern boundary line of the city was the west bank of the river. We have found otherwise. Assuming that taxes paid without protest could be recovered, if paid under mutual mistake, the action must fail, as we have found that the portion of the bridge upon which the taxes were assessed is within the city limits. As this conclusion determines the action, it is unnecessary to discuss other questions raised by appellant. In case No. 34,090 the judgment of the trial court in sustaining the demurrer to the evidence is affirmed. In case No. 33,711 the judgment of the trial court in sustaining a demurrer to the petition is affirmed.

The opinion of the court was delivered by Allen, J.: The action was for damages resulting from an automobile collision. From a judgment in favor of plaintiff defendant brings this appeal. The plaintiff, Sarah Bilsky, is a teacher in the public-school system of Kansas City, Mo. The defendant, Central Surety and Insurance Corporation, was the insurance carrier on the truck involved in the accident, belonging to Goldenstern Pipe and Supply Company and being driven by Roy Ray. Neither the owner of the truck nor the driver was made a party to the suit. The defendants, Mr. and Mrs. McFarland, owned and were driving one of the automobiles involved in the accident. Genevieve Jones was the owner of a Plymouth car, and she and the plaintiff, Miss Bilsky, together with Mrs. Jones, a woman 68 years of age, started from Kansas City, Mo., in the automobile of Genevieve Jones for a trip to Mexico City, a round-trip distance of 3,600 miles. Besides the three persons in the Jones car, their baggage, packages, grips, etc., were also loaded in. On the second day of their trip to Mexico City the Jones car was traveling southward on highway 81 about twenty-two miles south of Wichita, and about seven or eight miles north of Wellington, near Riverdale. Approaching them from the south was a truck and trailer of Goldenstern Pipe and Supply Company, operated by Roy Ray, which was bound for Wichita. The truck went up a rise about a mile south of Riverdale, traveling northward, and as it did so the Plymouth car of the defendants, Mr. and Mrs. McFarland, followed the truck, also traveling northward. As the truck started over the top of the rise about a mile south of Riverdale, traveling northward, the McFarland car, driven by Mrs. McFarland, turned out to the left in order to pass the truck on the long gradual downgrade to the north. As the McFarland car passed the cab of the truck the truck was traveling 25 to 30 miles per hour, and the McFarland car 40 to 45 miles per hour. The McFarland car proceeded forward on the left-hand side of the 18-foot slab until it got 50 to 60 feet ahead of the truck. It then turned to the right at an angle of 45 degrees to get on its right side of the road in front of the truck, and traveled over until the right front wheel went off of the slab and onto the shoulder. Thereupon Mrs. McFarland immediately turned her car to the left and “flipped” it back on the pavement, and went across the pavement to the northwest at an angle of 45 degrees, and collided with the Jones car, in which the plaintiff was riding. At that time the Jones car had either stopped or was moving slowly. The truck driver testified that as the McFarland car passed the truck he took his foot off the throttle and applied the brakes; that when he saw the wheel of the McFarland car go off the pavement and then the car turned suddenly to the left across the road in front of him he put his brakes on hard and slid his wheels; and believing that he had the best opportunity to avoid a collision by turning to the left, he turned his truck to the left in an attempt to miss the McFarland car, but raked the left side of it and went over with his front wheel in the ditch to the west side of the road and stopped there. There was some dispute in the plaintiff’s evidence as to whether . the truck contacted the McFarland car just before or after the McFarland car collided with the Jones car in which plaintiff was riding. The road at this point was sixty feet wide between fences, and there was a moderate ditch over near the fence at the west side. The slab was eighteen feet wide, and the shoulders on each side twenty-one feet. When the right front wheel of the McFarland car ran off the right side of the slab onto the shoulder there were no obstructions ahead on the shoulder, and nothing to prevent the McFarland car continuing partly on the shoulder and partly on the slab until it safely passed the Jones car. After the- accident the Jones car was facing to the southwest or to the west, and partly on the slab, the McFarland car was hooked to it, bumper to bumper, and facing in a northwesterly direction, and the truck was along the left side of the McFarland car and slightly ahead of it, but they were not hooked together. The impact against the Jones car in which the plaintiff was riding caused it to be pushed north and'to the west a distance of five to ten feet. The Jones car was a Tudor sedan, with folding front seats. Mrs. Lillian Jones, who was sitting in the back seat, is a woman of large stature, and the impact threw her forward against the front seat, causing the seat to be pushed forward against the plaintiff, throwing her forward against the dashboard and then down on the floor. When the plaintiff was thrown forward her abdomen struck a thermos jug which was on the floor of the car. The impact caused the injuries complained of in this action. The charge of .negligence against the operator of the truck is stated in the petition: “■ . . that at the aforesaid time and place the said Goldenstem Pipe & Supply Company, by its agent, servant or employee, whose name is unknown to plaintiff at this time, then and there operating said Diamond T truck, within the scope of said company’s business, did operate said truck at a high, dangerous and reckless rate of speed, in excess of forty-five miles per hour, and did carelessly and negligently fail to slow or decrease the speed of said truck at said time and place or to have stopped same and did carelessly and negligently fail to use the appliances and equipment at hand to adequately control the movement of said truck, all of which said company and its agent carelessly and negligently failed to do, and thereby and as a result thereof caused said truck to be driven violently against, upon and into said Plymouth motor car which had simultaneously run into said truck, . . The answer of the defendant insurance company denied the charge of negligence against the operators of the truck, and alleged that the plaintiff and the driver of the automobile in which she was riding were engaged in a joint enterprise, and that the plaintiff and the driver of the car were guilty of negligence which was the direct and proximate cause of plaintiff’s injuries. Plaintiff’s reply contained a general denial of the allegations in the answer. The jury returned a verdict against the defendant insurance company in the sum of $10,000, and returned the following answers to special questions: “1. If you find that the driver of the truck, Roy Ray, was guilty of any negligence, state specifically what such negligence was? A. Excess of speed for braking equipment on truck and trailer. Lack of caution in watching traffic. “2. If you find that the plaintiff received any injuries in the accident, state what the proximate cause of such injuries was? A. The impact of truck and ear with car in which the plaintiff was riding. “3. Did the plaintiff receive any injuries in the accident? A. Yes. “4. If you answer ‘yes’ to the foregoing question, state specifically what such injuries were? A. Head injury, injury to sacro-iliac joint, injury in her abdominal region. “5. At the time the plaintiff was operated on in January, 1938, was her ailment chronic interstitial appendicitis? A. Apparently, yes. “6. If you find that the plaintiff has at. this time any ailments resulting from the accident state specifically what such ailments are? A. Sacro-iliac sprain, abdominal injury. “7. Did the truck strike, or run against the McFarland car after the McFarland car had passed the truck and before the collision between the McFarland and Jones cars? A. Yes. “8. If you answer question No. 7 in the affirmative, then state whether or not the striking of the McFarland car by the truck caused the driver of the McFarland car to lose control of the operation of her car? A. Yes. “9. What do you find to be the proximate cause of this accident? A. Speed and lack of brakes on trailer.” Judgment having been rendered on the verdict in favor of the plaintiff, the defendant insurance corporation filed a motion for judgment in its favor for the reason that the answer of the jury to special question No. 1 shows that the Goldenstern Pipe and Supply Company and its truck driver were not guilty of any negligence in issue in the case, or alleged in the amended petition; that such finding was contrary to the allegations in the petition, and that such answer shows that neither the Goldenstern Pipe and Supply Com pany nor its driver was guilty of any negligence submitted by the court in its instructions to the jury. Error is assigned in overruling that motion, in overruling defendants’ demurrer to the evidence, in overruling defendants’ motion to set aside the answers to special questions 2 to 9, and defendants’ motion for a new trial. In answer to question No. 1 as to the negligence of the truck driver, the jury answered: “Excess of speed for braking equipment on truck and trailer. Lack of caution in watching traffic.” In answer to question No. 9 the jury answered that the proximate cause of the accident was “speed and lack of brakes on trailer.” There was no charge in the petition that the truck or the trailer was not supplied with brakes or that the brakes were defective; on the contrary, it was alleged that the operator of the truck “did carelessly and negligently fail to use the appliances and equipment at hand to adequately control the movement of said truck.” It was charged that the driver of the truck, then and there at the time and place, could have seen the approaching car in which plaintiff was riding, and by the exercise of due care and caution in using the appliances and equipment at hand could have stopped the truck, or turned or swerved it to one side, or decreased or lowered the speed in time to have avoided the collision. These were the issues of negligence charged in the petition and submitted to the jury by the instructions. The driver of the truck, called as a witness by plaintiff, testified that his brakes were in good condition and were operating properly, that they were hydraulic brakes and operated on six tires that were six inches in diameter. There was no charge of negligence in the failure to have brakes on the trailer. “Lack of caution in watching traffic” was not charged in the petition or submitted to the jury. The evidence of the plaintiff’s witness, the truck driver, showed that he was watching the traffic, that he saw and appreciated the conditions on the road and took action accordingly. Not only was “lack of caution in watching traffic” not an issue, but there was no evidence in the record to support the finding. In answer to special questions Nos. 1 and 9, the jury did not find the driver of the truck was guilty of excessive speed under the circumstances, but excessive speed for the braking equipment. The testimony showed the truck was traveling at 25 or 30 miles per hour. The McFarlands testified that when they passed the truck, the driver “raced” them. But at the same time these witnesses testified that they did pass the truck and that their car did not exceed 40 or 45 miles per hour. There was no charge and no evidence that the truck was moving at excessive speed for the braking equipment. In Parks v. Railway Co., 100 Kan. 219, 163 Pac. 1066, it was held: “In an action founded upon negligence where the jury find generally for the plaintiff, but in a special finding declare that the negligence of the defendant consisted of something not charged in the petition, it is the duty of the court to render judgment in defendant’s favor. (McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747.)” (Syl. ¶ 2.) In Coffman v. Shearer, 140 Kan. 176, 179, 34 P. 2d 97, it was said: “It is, of course, elementary that in an action for damages for negligence the failure of the jury to find a defendant guilty on any ground of negligence charged in the petition is conclusive in his favor and judgment must be ordered accordingly, irrespective of the general verdict. (McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Lahmeyer v. Massey, 137 Kan. 566, 573, 21 P. 2d 380.)” It is a well-settled rule in this state that in an action for damages on various allegations of negligence, where the jury makes specific findings as to what particular act or acts of negligence defendant committed, such findings exonerate the defendant of all other charges of negligence alleged in plaintiff’s petition. (Brim v. Atchison T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715; Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 692, 85 P. 2d 15.) As there was no charge in the petition that the driver of the truck was guilty of the acts of negligence found by the jury in answer to special question No. 1, or that the failure to have brakes on the trailer was a legal cause of the collision, it is clear that the case falls within the rules above stated. The only negligence the jury found the driver of the truck had committed was “excess of speed for braking equipment on the truck and trailer,” and “lack of caution in watching traffic.” The petition alleged that he failed “to use the appliances and equipment at hand” to adequately control the movement of the truck. The special finding exonerated the driver of the charge of negligence set forth in the petition. The judgment is reversed and the' cause remanded with instructions to enter judgment for defendant.

The opinion of the court was delivered by Hoch, J.: This was an action for damages against the city of Wichita, the plaintiff alleging that she was injured in a fall caused by a defective step on a stairway leading from a city bridge. The city demurred to the plaintiff’s evidence and offered no evidence. The demurrer was overruled and the jury awarded the plaintiff $2,285. The city appeals. The main question presented is whether under the facts and circumstances as shown the city was responsible for maintaining the stairway in a reasonably safe condition. The bridge in question is the Douglas avenue bridge which crosses the Arkansas river in the heart of the city. It was built by Sedg wick county in 1908 under a special act of the legislature. Inasmuch as the bridge has been under the control of the city, which operates the street lights upon it and otherwise maintains it, there is no serious contention that the bridge is not to be considered as a city bridge. About eight or ten feet north and a few feet below the city bridge was the bridge of the street railway company, and three or four hundred feet farther north was the bridge of the Arkansas Valley Interurban Company. Still farther north was a Missouri Pacific railroad bridge. At the time the plaintiff’s accident took place there was a tract of land below and to the north of the city bridge, known as Ackerman Island, which divided the river channel. A baseball grounds was located on the island; and in 1912 persons interested in the baseball club which was patronized by the public generally, built a wooden stairway from'the south end of the island tract up to the tracks of the street railway bridge and to the north level of the city bridge. The stairway rested on or against the city bridge. On the north side of the city bridge, and at the side of the regular walk for pedestrians was a heavy concrete rail. A gateway was made in this rail by removing the top part of the rail and the concrete spindles which supported it. At the bottom of the rail was'a concrete base ten or twelve inches high and eight or ten inches wide which was not removed, and persons going through the gateway had to step over it. On a level with the sidewalk a platform was built which extended four or five feet north from the gateway, and from this platform there were three or four steps going down to another platform on a level with the tracks of the street railway. From that point there was a flight of twenty or more steps leading down to a' platform which extended fifteen or twenty feet north to where it connected with a gravel path leading to the ball park. There were other approaches to the ball park on the island, but continuously from 1912 until plaintiff’s accident in 1933, except possibly for a brief period, the steps were used both by passengers alighting from the streetcars and by pedestrians coming from or going to the city bridge. On May 1, 1924, the city took fee title to the tract north of the city bridge, including the land on which the stairway was located, subject to the rights of way of the three railroads. In 1926 the city leased that part of the island on which a stadium had been erected .to Frank Isbell, and upon expiration of that lease another lease was given in 1932, for a money consideration, to the Wichita Sports As sociation. During all the years from 1912 the tract was used by the public for baseball and other athletic purposes, and during those years the stairway was in public use. On the afternoon of September 24, 1933, plaintiff and her husband were on their way to attend a ball game and in company with others passed through the opening from the sidewalk on the bridge and down the stairs. When she was eight or ten steps from the bottom of the long flight the heel of her shoe caught in a hole or rotten place in one of the steps, she fell and suffered the injury. The issue being here upon demurrer to the evidence, the nature and extent of her injuries are not involved. Appellant does not attack the judgment on the ground that the award was excessive. The city contends that it had no responsibility to maintain the stairway; that the wooden structure was erected by private parties for the convenience of their patrons and for their own profit in a private enterprise; that the stairway was not erected on city property, and was not a part of any public street or sidewalk. The outstanding fact which confronts appellant’s contention, and from which the record affords no escape, is that there existed for twenty years on the Douglas avenue bridge in the heart of the city, and over which hundreds of pedestrians passed daily, an opening or gateway in the substantial concrete rail which protected the main sidewalk; that connecting directly with this gateway, and on the level with it, was a platform and from the platform a stairway leading to the ball park; that for all those years this gateway and steps were used by the public in going to and from the ball games and other athletic events. There was direct testimony from the city engineer that city officials had personal knowledge of this opening in the rail and of the stairway and of its constant use by the public. But even in the absence of such direct testimony it would have to be said that the city had at least constructive knowledge of these facts which had been common knowledge for twenty years. For at least eight years out of the twenty the city had held the fee title to the land on which the stairway had been built, and for a number of years had maintained and beautified a small city park at the foot of the stairway and along the platform and path leading from it. Formal dedication of land for street, alley or sidewalk purposes is not necessary in order to impose public responsibility in connection with its use as a public passageway. The mere use by the public, unattended by other factors, may not make a pathway or road way a public passageway and impose responsibility for it as such upon the city. But where there are attending facts and circumstances which show participating connection or acquiescence on the part of the municipality with such public use, and especially where such a situation has existed over an extended period of time, responsibility on the part of the city attaches. (7 McQuillin Municipal Corporations, 2d ed., 82; 43 C. J. 990, 992; Hendrickson v. City of Astoria, 127 Ore. 1, 267 Pac. 1035; Cemetery Ass’n v. Meninger, 14 Kan. 312; Kirkham v. Kansas City, 89 Kan. 651, 132 Pac. 160; Jewhurst v. City of Syracuse, 108 N. Y. 303, 15 N. E. 409; Raymond v. Wichita, 70 Kan. 523, 79 Pac. 323; Aston v. Newton, 134 Mass. 507.) In the case before us there was long acquiescence by the city in the public use of the gateway and the stairway. The gateway was an open invitation to use the stairway upon which it opened. The opening in the concrete rail had no other purpose. If the city desired to accept no responsibility for use of the stairway it had the right to close the gateway and, if necessary, remove the stairway. But it could not permit the gateway to exist for many years with its continuing invitation to use by the public and then escape all responsibility to those who used it. It must be remembered that we are not here passing upon questions of fact considered by the jury, as to whether the stairway was in reasonably safe condition, or whether defects, if any, were so discernible as to call for repair, or upon any question of contributory negligence. The city stood upon its demurrer to the evidence and denies any responsibility for the condition of the stairway. We think that the demurrer was properly overruled. The city offered no objections to the instructions and asked for no special instructions, but in the motion for a new trial simply alleged erroneous rulings and instructions. In its brief the city complains of instructions 2, 8 and 9. The abstract does not show instruction No. 2, but appellant says that the jury was therein instructed that the manager or owner of any amusement park 400 feet away from a private walk was responsible for the safety of ingress and egress to the stadium. Assuming as we do that appellant accurately quotes the instruction, we find nothing in it to prejudice the rights of appellant. Appellant states in its brief that in instructions 8 and 9 the court instructed the jury that “in all cases where a well-traveled pathway or lane connects two pieces of municipal property then the city is liable for all defects upon such property.” While appellant’s statement was doubtless intended to be merely argumentative, we do not find that the statement is justified from the reading of the instructions themselves. In No. 8 the court instructed the jury in effect that the stairway in question was erected by the athletic club against the bridge which was under the control of the city, that an opening was made from the bridge onto the stairs by persons other than the city, but regardless of whoever made the opening, the bridge with its opening and the stairs were used commonly for about twenty years by people going to and coming from the park, and that after so long a usage it must be presumed in law that the owner, management, and possibly both, of the amusement park and stadium were responsible for the safe condition of the passageway. We see nothing in that instruction to prejudice the rights of the city. In instruction No. 9 the court instructed the jury in substance that the city was under a duty to exercise ordinary care to keep the stairs in question in a reasonably safe condition, but that the city was not an insurer of the safety of persons using the stairway and could not be held liable unless it failed to exercise such reasonable care; that if the jury found from a preponderance of the evidence that the plaintiff caught the heel of her shoe in a defective place on the stairway and as a result fell and sustained injuries, she still could not recover against the city unless the jury found that such alleged defect or defects were either actually known to the city through its officers or agents' or that such defect or defects had existed for a period of time sufficient in the opinion of the jury to have become known to such officers or agents whose duty it was to look after the condition of the stairs and public ways of said city if they had been acting in the exercise of ordinary care. The court stated further that such latter condition would constitute so-called "constructive knowledge” and would be as sufficient as actual knowledge in determining the right of an injured party to recover. Certainly this instruction does not say, as appellant contends, that á city would be liable for defects “in all cases where a well-traveled pathway or lane connects two pieces of municipal property.” The city also alleges that the court erred in admitting as exhibits certain photographs upon which certain words had been written. The record shows, however, that only the pictures themselves, and not the words, were offered and received in evidence, and in any event it cannot be said that the presence of the words in question constituted prejudicial error. The words written on the top of the exhibits were as follows: “Marks step from which she fell,” “Arrows showing eighth step up from which she fell,” “X shows landing where she fell from eighth step.” Appellant is not here contending that contrary to the evidence the jury found any facts upon which these words would have any bearing. The judgment is affirmed.

The opinion of the court was delivered by Allen, J.: This is an appeal from a judgment of the district court in a workmen’s compensation case. The appellant while working for the Rine Drilling Company suffered a compensable nonscheduled injury, and on January 7, 1937, was awarded fifty-two weeks temporary total disability. Upon aplication the commissioner extended the award twenty-six weeks, to January 10, 1938. In this order of modification the contract for attorney’s fees between appellant and L. E. Quinlan was approved and made a lien upon the award. It appears that during the period covered by these awards Mr. Quinlan represented the appellant, and all checks were made payable jointly to Mr. Quinlan and appellant and were sent to Mr. Quinlan by the insurance carrier. All the checks were endorsed and cashed except the final compensation check, which was sent to and received by Mr. Quinlan on January 10,1938, the date the final payment was due. On March 4, 1938, appellant filed an application with the commission for an extension of the award; a hearing was held on April 7, and on April 19, 1938, the commissioner issued an order of modification by which the appellant was given an award for an additional 337 weeks at $18 per week. From this order an appeal was taken to the district court. Before the court convened in September, 1938, Mr. Quinlan, attorney for the appellant, was appointed district judge to succeed the late Judge Beals, and Judge Kline was called to hear the case as judge pro tern. On September 14, 1938, the case was submitted to Judge Kline without argument with leave to file briefs given to both parties. On November 30, 1938, Judge Kline rendered judgment setting aside the award on the ground that the application for review had not been filed in time. On December 1, 1938, appellant employed Wm. H. Burnett to represent him in the proceedings in the place of Judge Quinlan. Upon learning that the court had rendered its decision, Mr. Burnett as counsel for appellant on December 3, 1938, filed a motion for a new trial and on the following day filed a supplemental motion to vacate the judgment and reopen the case. On January 14, 1939, judgment was entered overruling the motion for a new trial, and sustaining a motion to strike the supplemental motion to vacate. The notice of appeal recites that “claimant, does and has hereby appealed from the decision rendered ... on or about the 14th day of January, 1939.” We think it is clear that the ruling made by the judge pro tern on November 30, 1938, setting aside the award of the commissioner, was a final judgment, from which an appeal would lie under G. S. 1935, 44-556. That section provides: “That any party to the proceedings may appeal from any findings or order of the district court to the supreme court on questions of law. Such appeal shall be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within twenty days after the final order of said district court, and the district clerk shall immediately transmit a certified copy of such notice of appeal to the clerk of the supreme court and thereafter such appeal shall be prosecuted in like manner as other appeals in civil cases, and shall take precedence over other cases except cases of 'a like character.” The appeal in this case was not from the judgment of November 30, 1938, but from the ruling on the post-judgment motions made and rendered on the 14th day of January, 1939. No notice of appeal was filed with the clerk of the district court within twenty days after final order and judgment was rendered on November 30, 1938. As the command of the statute was not complied with as regards the notice of appeal, what question is before this court for determination? The workmen’s compensation act is a comprehensive enactment, complete in itself, with a simplified procedure designed to speed the settlement of claims and avoid the delay as well as the expense of litigation. The rules of the civil code are not applicable to compensation proceedings. (Palmer v. Fincke, 122 Kan. 825, 253 Pac. 583; Doss v. Cornelison & Kelly, 124 Kan. 631, 261 Pac. 584; Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595; Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980; Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471; Ketchell v. Wilson & Co., 140 Kan. 163, 32 P. 2d 865; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748; Vigola v. Labor Exchange Coal Co., 145 Kan. 889, 67 P. 2d 421.) Only issues of law are reviewable in appeals under the act. Post-judgment motions are not provided for in compensation procedure, and such motions cannot extend the time within which appeals must be perfected. As no appeal was taken from the judgment of November 30, 1938, there is nothing before this court for review. The attempted appeal from the ruling on the post-judgment motions was ineffectual for any purpose. Accordingly, the judgment must be affirmed. It is so ordered.

The opinion of the court was delivered by Allen, J.: The Gridley rural high-school district No. 2, of Coffey county, brought this action against the board of county commissioners of Woodson county to recover tuition for certain pupils residing in Woodson county who attended the Gridley rural high school. The trial resulted in a judgment for plaintiff, and defendant appeals. The petition alleged that both Coffey and Woodson counties were operating under the Barnes high-school law. In the first count plaintiff demanded judgment in the sum of $936, for tuition for students for the school year 1934-1935; in the second count a like amount for the school year of 1935-1936, and' in the third count the sum of $1,296 for the school year 1936-1937. The petition alleged that the pupils resided in a community in Woodson county remote from a high school, and in which there were not a sufficient number of pupils of high-school advancement to organize and maintain another high school; that the pupils were entitled to entrance to the high school; that due to the remoteness from the high school in Woodson county, and the convenience of plaintiff’s high school, each of the pupils presented to plaintiff’s board of education an application signed by the county superin tendent of Woodson county asking for permission to'attend plaintiff’s high school, which permission was granted; that the pupils did attend the school year stated; that the rate of tuition was fixed by the county superintendent of Woodson county at two dollars per week for each pupil. It was further alleged that at the end of each' school year plaintiff presented to defendant a claim for tuition duly recommended by the county superintendent of Coffey county as provided by G. S: 1935, 72-3014. A demurrer to the petition was overruled. The amended answer of defendant, after a general denial, stated: “Third: For further answer defendant alleges that at all the times mentioned in plaintiff’s petition, and in particular at the times when plaintiff alleges that the county superintendent of public instruction of Woodson county executed, the documents set out in the exhibits attached to plaintiff’s petition, the defendant did not have in its general fund any moneys, credits or funds available for the payment of the claims set out in plaintiff’s petition, and that by reason of the foregoing and by virtue of the laws of the state of Kansas and in particular of the provisions of R. [G.] S. 1935, 10-1101 to 10-1122, inclusive, and especially by virtue of sections 10-1113, 10-1114, 10-1115 .and 10-1119, any alleged action of the county superintendent of public instruction of Woodson county or of any other county official creating or purporting to create any liability against the defendant and in favor of the plaintiff was and is null and void and of no force or effect whatever.” Plaintiff filed a reply in the form of a general denial, and on these issues the case was tried to a jury. Defendant filed a demurrer to plaintiff’s evidence, which was overruled. Plaintiff filed a motion for a directed verdict, which was sustained. Defendant assigns as error the failure to sustain defendant’s demurrer to the petition, the demurrer to plaintiff’s evidence, and failure to give a directed verdict in favor of defendant because plaintiff failed to plead and prove compliance with the requirements of G. S!. 1935, 72-3806. From the record it was clear that plaintiff had not complied with the provisions of section 72-3806. On oral argument it was conceded by appellee that if section 72-3806 applies, the evidence is insufficient to sustain the judgment. A serious doubt having arisen as to whether section 72-3806 was applicable, the .case was set down for further argument. Supplemental briefs were filed and the case was again argued by counsel. Section 72-3806 was section 1 of chapter 239 of the Laws of 1929. The act was entitled: “An act relating to the payment of tuition of certain pupils attending high schools in counties other than of their residence.” Section 72-3807, being section 2 of chapter 239 of the Laws of 1929, was held unconstitutional by this court in School Districts v. Stafford County Comm’rs, 141 Kan. 108, 40 P. 2d 334. Section 72-3806 provides: “Any pupil or pupils desiring to attend a high school located in any county adjacent to the county of the residence of such pupil or pupils because it is nearest his residence, or more easily accessible than an accredited high school in his county, or for other valid reasons shall first make application for permission so to do. If such pupil or pupils reside in a common-school district maintaining an accredited high school, and in which there is a city of the first or second .class, said application shall be made to the board of education of such district. All other applications shall be made to the county superintendent. If such application be approved, consent to such attendance shall be endorsed in writing on said application with the reason or reasons therefor stated therein. Such application and consent shall then be presented by the pupil or pupils to the governing body of the high-school district which said pupil or pupils desire to attend, for its approval or rejection. If approved, the approval shall be endorsed upon the original application and consent, and such application, consent and approval shall be filed with the clerk of the high-school district wherein such pupil or pupils reside, or if said pupil or pupils do not reside in a high-school district, then with the county clerk: Provided, That if such approval is not given by the county superintendent, then the parent or parents of pupils desiring to attend high school in an adjoining county-may appeal from the decision of the county superintendent to the state superintendent, whose decision shall be final as to whether the reasons given are sufficient.” The plaintiff, the Gridley rural high school, contends that section 72-3806 completely changes and modifies the requirements of the pupil as set forth in section 72-3014 — the section upon which the action is based — and that section 72-3806 is unconstitutional and void. It is asserted that since section 72-3807 was found to violate the constitution, section 72-3806 has no office to perform; that the latter section, standing alone, provides no means for the payment of tuition, providing only for the procedure to be followed in making the application. We are unable to agree with these contentions. Sections 72-3013 and 72-3014 contain provisions with reference to the payment of tuition of certain pupils who choose to attend high school in a district within the county other than the district of their residence, or in an adjoining county. The section first named was enacted in 1905 and the latter in 1923. In the case of Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, 246 Pac. 681, the constitutionality of the latter section was upheld and the section held to be merely a broadening and supplementing of the prior section. Section 72-3806, G. S. 1935, being section 1 of chapter 239, Laws of 1929, is plainly intended to provide uniform procedure in the case of all pupils desiring to attend high school in a county adjacent to their residence, and the question presented is whether the procedure set up in said section 72-3806 must be complied with. Compliance may be avoided only upon the ground that section 72-3806 is invalid. Two principal grounds are urged in support of the contention that the section is invalid. The first is that the section necessarily falls because of the decision holding 72-3807 invalid, in the case of School Districts v. Stafford County Comm’rs, 141 Kan. 108, 40 P. 2d 334. The second contention is that it substantially amends prior enactments and is in violation of section 16, article 2 of the state constitution, which requires that “no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” The first contention is based upon the argument that section 1 (72-3806) and section 2 (72-3807) of chapter 239, Laws of 1929, constitute a unit, that they are inseparable and that it cannot reasonably be said that the legislature would have enacted the former section independent of the second section, which has been declared unconstitutional. We cannot agree with that contention. The title of the bill which became chapter 239, Laws of 1929, is a broad one and reads as follows: “An act relating to the payment of tuition of certain pupils attending high schools in counties other than that of their residence.” Section 2 (72-3807) was declared invalid on the ground that it attempted to make fundamental changes in the tuition provisions of the Barnes act, without complying with the provisions of section 16, article 2 of the constitution. It provided that the tuition should be paid “from the high-school fund of said county,” instead of from the “general fund” of the county as provided in the Barnes act, and it further provided that “the county commissioners” should allow and pay the tuition, while the Barnes act provides that payment should be made by the “county treasurer.” It also contained provisions relative to the amount of tuition to be paid which may in certain instances be inconsistent with the corresponding provision in the Barnes act. In other words, section 2 attempted to provide the amount of tuition to be paid, the fund from which it should be paid and by whom it should be paid. Such provisions were plainly contradictory or amendatory of the provisions of the Barnes law and hence the act did not comply with the constitutional requirement heretofore stated. An examination of section 1 of the 1929 act reveals that it deals entirely with procedural matters. It was plainly intended to establish a state-wide procedure' to be followed by those desiring to secure approval to attend high schools in an adjoining county, and it makes no distinction as to whether or not either the county of residence or the adjoining county is operating under the Barnes act. Section 1 depends in no way for interpretation of meaning or intent upon the provisions of section 2, which was held invalid. The two sections are plainly separable. Section 1 comes clearly within the broad title of the act. Certainly its provisions which provide procedure for pupils who desire to attend in another county and have their tuition paid by the home county are within the title, “An act relating to the payment of tuition of certain pupils,” etc. The contention that it must fall with section 2 cannot be sustained. The second contention is that section 1 (72-3806) must be invalidated on the same ground on which the invalidity of section 2 was based,- namely, violation of the constitutional provision, supra. The question is whether 72-3806 is merely supplementary to the prior enactments of 72-3013 and 72-3014, or whether its terms would so modify or amend those sections as to render them no longer operative in their entirety. Indulgence of the presumption of validity places the burden of proof upon those who advance the latter interpretation. It was plainly the intention of the legislature in section 72-3806 to establish a uniform procedure — as heretofore stated — and the desirability of doing so is apparent. The section provides in substance that where such individual pupil desires to attend high school in the adjoining county because it is nearest his residence or more easily accessible than an accredited school in his own county, or for other valid reasons, he shall first make application to the board of education in his own district, if that district is one in which there is a city of the first or second class, and in all other cases to the county superintendent; that if approved the application shall be forwarded with the consent endorsed thereon to the governing body of the high-school district which he desires to attend, and if approved by such governing body the original application with the consent and the approval endorsed thereon shall be filed with the clerk of the high-school district where he resides, or if he does not reside in the high-school district then with the county clerk. It was the plain intention of the section not only to provide the method or procedure, but to make sure that the approved application would be filed and made available for the information of the authorities in the county of residence. The importance of filing in the home county is evident. The authorities of the home county, which is to be charged with payment of the tuition, are entitled to know in advance what burden is thus to be imposed, in order that provision may be made to meet it. Incidentally, it is contended that the provision heretofore referred to which requires consent of the school board of the home district in cases where the pupil resides in a common-school district maintaining an accredited .high school and in which there is a city of the first or second class, is inoperative because no such situation exists, since there are no cases of first- or second-class cities “within common-school districts.” If that be true, it simply makes that provision of the section surplusage and in no way invalidates the section. The question still remains as to whether the provisions of 72-3806, as heretofore outlined, amend the provisions of 72-3013 or 72-3014. Stating it in another way, do the provisions of section 72-3806 nullify or render inoperative sections .72-3013 or 72-3014? Sections 72-3013 and 72-3014 are part of the Barnes law. The Barnes law, which becomes operative in a county upon adoption, at an election held for that purpose, provides financial assistance to high schools of the county out of a fund created by a general levy upon all the property of the county. Section 72-3013 provides that tuition shall be free to all pupils residing in the county upon presentation of entrance certificate signed by the county superintendent certifying to their qualifications for admission, and provides that where communities in the county are remote or not convenient of access to a high school in the county and there are not a sufficient number of pupils properly qualified to organize and maintain another high school, the county commissioners shall, upon “recommendation of the county superintendent,” pay the tuition of pupils from such community in the high school most convenient to the community of their residence, either within the county or within the adjacent county. Is there anything about those provisions which is necessarily made inoperative by the provisions of 72-3806? We think not. It will be noted that section 72-3013 says nothing about the filing of an application by any individual pupil in order to impose a liability upon the county for payment of tuition. After the enactment of 72-3806, as before its enactment, if there is a community in a Barnes-law county which is remote or not convenient of access to a high school already in operation and does not have enough pupils to justify a high school of its own, and the county superintendent so “recommends,” the county must pay the tuition of such community’s pupils in a convenient high school within the county or the adjacent county. In case the county superintendent has not so recommended and any qualified pupil desires to attend in an adjoining county, he may make formal application and follow the procedure set out in 72-3806. That section gives him a clear method in which to proceed, and if the application is approved the home county is given due notice of the burden they must meet in paying his tuition. The county authorities do have such a notice in all those cases where the county superintendent has “recommended” that tuition be paid under the provisions of 72-3013 or 72-3014. What has been said about section 72-3013 in its relation to section 72-3806 applies with equal force to section 72-3014. Section 72-3014 is not nullified or made useless by the provisions of section 72-3806. But it is contended that if section 72-3806 be held valid, its provisions would be futile, because there would then be no lawful way in which the county could pay the tuition. The argument is that the earlier statutes, which deal with payment by the county make such payment contingent upon recommendation or approval by the county superintendent, and if the county superintendent does not approve and if upon appeal the state superintendent reverses him, there would still be no approval by the county superintendent and therefore no compliance with the statute. We regard such contention as hypertechnical. Approval by the state superintendent, in case of appeal, would be tantamount to direction to the county superintendent to approve the application. The view we have expressed is strengthened when we examine the legislative history of chapter 239. As stated, that chapter was enacted at the 1929 session of the legislature. An examination of the journals of the Senate and House of that session reveals that a number of bills proposing amendments to sections 72-3013 and 72-3014 urer.” It also contained provisions relative to the amount of tuition were introduced and considered by the legislature. Senate bill No. Ill was a proposed amendment of section 72-3013; House bill No. 487 was a proposed amendment to section 72-3014; and House bills Nos. 472 and 525 proposed amendments to both of these sections. None of these bills was passed. From a study of the journals it is clear the legislature gave careful consideration to procedural requirements covered by the former sections 72-3013 and 72-3014, and that it was the legislative intent to supplement those sections by a state-wide procedure to embrace cross-county-line tuition cases. As the evidence on the part of the plaintiff failed to show a compliance with the requirements of section 72-3806, the judgment must be reversed and the cause remanded with instructions to enter judgment for defendant. It is so ordered.

The opinion of the court was delivered by Thiele, J.: This was an action to recover on a policy of life insurance. Plaintiff’s demurrer to defendant’s amended answer was sustained. Defendant elected to stand on its amended answer, and judgment was rendered against it. The defendant appeals, assigning as errors the ruling on the demurrer and the rendering of the judgment. Briefly stated, the petition alleged that the defendant issued its ■policy of life insurance No. 2252 to Maude Ellen Newman on her life, and agreed upon proof of her death to pay the sum of $2,000 to her husband, Ernest L. Newman, the plaintiff herein, with the right reserved to the insured to change the beneficiary, the policy covering a period beginning August 30, 1928; that the insured performed all conditions to be performed by her; that the insured died December 2, 1934, at which time the policy was in force, and that defendant refused to pay the amount of the policy. A copy of the policy was attached to and made part of the petition. Defendant’s amended answer admitted issuance of the policy, but denied it was in force and effect at date of the death on Decem ber 2, 1934, for the reason that a note was given by plaintiff in the sum of $19.56 for the payment of the last premium due oh the policy on May 30, 1932; that default was made on the note and no part thereof was paid either by the plaintiff or the insured and no payment of premium was made after the note was given; that under the terms of the policy the sum due on the note was deducted from the cash value of the policy and the policy was placed upon extended insurance as provided by the terms of the policy and the policy expired on May 18, 1934; that notice of the expiration date of. the policy was given both the plaintiff and the insured by registered mail. The note referred to was set out in full in the answer. It is a simple form of promissory note dated May 30, 1932, for $19.56, due ninety days after date, payable to order of defendant and is signed by Ernest L. Newman. Under his signature, but not part of the body of the note, is the following: “This note is secured by the reserve under policy No. 2252.” ■ It also bore an endorsement signed by Ernest L. Newman authorizing any bank or individual to purchase the note and stating that there were no offsets against it. Other endorsements showed it was paid August 31,1933. By stipulation two letters were made part of the amended answer. Both were written by the defendant or its officers. The first was dated August 31, 1933, was addressed to Ernest L. Newman, and opposite the address was the following: “In re: Policy No. 2252.” The subject matter of the letter was that the company’s representative had advised that Mr. Newman wished to pay his note from the values “under your policy”; that same had been applied and the note was being enclosed, and— “The additional extended insurance value which you have after paying your note will carry your policy until May 18, 1934.” The second letter was dated April 17, 1934, addressed to Maude Ellen Newman, referred to policy 2252 and advised her her policy would expire on May 18, 1934, as provided under the extended insurance clause in the policy, unless further remittance was made. There was a further stipulation that a named insurance actuary would testify that the.cash value of the policy on May 30, 1932, was $47.50 and would have been sufficient to carry the face value of the policy on extended insurance to January 30, 1935, and the parties agreed that the facts as stated by the actuary were correct. It may here be remarked that the extended insurance tables made part of the policy, and which refer to the anniversary dates of the policy, tend to show correctness of the above. The policy of insurance was dated September 1, 1928, and provided that upon receipt of proof of death of Maude Ellen Newman, the company would pay to Ernest L. Newman the sum of $2,000 if the policy was then in full force. Although the face of the policy referred to annual premiums, by subsequent provisions the premiums could be paid in semiannual, quarterly or monthly installments. A right to change the beneficiary was reserved. Provisions as to indebtedness will be referred to later. Did the amended answer state a defense? Without detailing any facts and figures necessary to be considered in relation thereto, it may be said that if the note given by Ernest L. Newman on May 30, 1932, could be charged against any sums or benefits due to Maude Ellen Newman either when the note was given, when it was due by its terms or when it was finally offset, then the amount remaining for her benefit was not sufficient to continue the policy in force until a period subsequent to her death under the provisions with respect to extended insurance. Appellant contends that the pleadings disclose that to be the case. It may here be noted that the amended answer in no manner pleads any agency of Ernest L. Newman for Maude Ellen Newman, or that his action in giving the note in question was at her request, direction or knowledge. Whether she had knowledge subsequent to the claimed payment of the note from amounts due under the policy will be later referred to. In accordance with statutory provisions, a copy of the application for the policy was made a part of the policy and is before us. It clearly discloses that Maude Ellen Newman was the applicant. The beneficiary therein named was the present plaintiff. By the terms of the policy she had the right to change the beneficiary, and under decisions of this court her husband had no vested interest in the policy or its proceeds until after her death. (Antrim v. International Life Ins. Co., 128 Kan. 65, 275 Pac. 1084; Tromp v. National Reserve Life, 143 Kan. 98, 53 P. 2d 831.) There is no allegation of the answer that warrants any conclusion that any person other than Maude Ellen Newman had any interest in or right to the benefits of her policy on May 30, 1932, when her husband gave the defendant his, not her, note for the amount of a quarterly payment. We need not discuss whether the note, in the form in which it was prepared and executed, was sufficient to pledge the benefits under the policy, assuming that Ernest L. Newman had such a right. Nor may it be said that the letters mentioned were such that Maude Ellen Newman ratified what was done, by not protesting to the defendant. Not only is there no allegation of agency, there is no allegation she knew of the existence of the note, or of the application of the proceeds of her policy to its satisfaction. The letter of August 31,1933, addressed to Ernest L. Newman, was written fifteen months after the note was given. It was addressed to him and not to her, and except as the policy number connects the subject matter with her policy, all else refers to a policy held by him and not by her. There is no allegation Maude Ellen Newman ever saw this letter or knew of it. The letter or notice to her dated April 17, 1934, makes no reference to any note, but says only the extended insurance would expire on May 18, 1934, and the policy would be void. Absent any knowledge on her part of the note, or the use of the proceeds of her policy to pay it, she could ignore the letter. She had her policy and could tell therefrom that if it meant what it said, her extended insurance did not expire for some timé after the date set. The defendant does not and could not well contend that had there been no note transaction, its letter would have been effective to change the period of extended insurance. But until notice of the note transaction was brought home to Maude Ellen Newman that would be the situation. Appellant also directs our attention to a provision in the policy that “any indebtedness to the company on account of or secured by this policy . . . will be deducted,” etc., and to another similar provision in connection with provisions for extended insurance, and to cases dealing with policy loans or their equivalents. We need not discuss this phase of the matter further than to remark that under the allegations of the amended answer the indebtedness evidenced by the note of Ernest L. Newman was not an “indebtedness on account of or secured by” the policy on his wife’s life. Although appellant did not specifically plead estoppel, it contends that Ernest L. Newman isi estopped to make claim to the proceeds of this policy. It is very doubtful that it may now raise the question of estoppel in view of its defense that the execution of the note of Ernest L. Newman and the application of credits due under the policy effected a shortening of the period of extended insurance which expired prior to the death of the insured. There is no allegation from which it may be inferred it made any claim that if the policy be held to be in effect at the death of Maude Ellen Newman, then by reason of the facts alleged Ernest L. Newman should not be allowed to recover because of his acts. However, we shall treat the contention briefly. As we understand appellant’s argument, it is that Ernest L. Newman, when he gave the note, led the company to believe he had a right either to borrow as against the policy or to pledge its reserves to the payment of his note, and that, having done so, he cannot now claim his note was not effectual; was not properly charged against the reserves and that the extended insurance had) not expired prior to the death of Maude Ellen Newman. Just where the company acted to its detriment does not clearly appear. It knew fully when the note was made that unless Ernest L. Newman was authorized to act for his wife, the benefits, proceeds or reserves of the policy could not be pledged by him. Even had he thought he had that right because he was the beneficiary, the defendant company knew better. The rights under this policy were contract rights between the company as insurer and Maude Ellen Newman as insured. They could not be altered or changed by any course of dealing to which she was not a party. When she did not pay the premium due May 30, 1932, she had a right to rely on her contract that her insurance would be automatically extended for the definite contract period. Only she or someone by her direction and under authority granted by her could alter that contract right. The amended petition does not charge that what was done by Ernest L. Newman was done under any authority from Maude Ellen Newman, or that he acted as her agent, or that she ratified what he did. So far as she was concerned, she had a right to rely on the contract evidenced by her policy, unaffected by what he did. Under the circumstances, she had an absolute right to change the beneficiary at any time previous to her death. Only on her death was the contract determined, and only then did the beneficiary, here Ernest L. Newman, because she made no other designation, have a cause of action against the company. All this the company knew at all times. Without reviewing the many authorities cited and discussed in the briefs, it may be said here that application of the doctrine of estoppel is not mechanical; but even so considered, the record discloses a situation where it would not apply. The company was possessed of knowledge of its rights and liabilities superior to that possessed by Ernest L. Newman, and so far as the allegations of the amended answer disclose, it knew when it dealt with him he had no contract rights in the premises, and that he was not acting in his wife’s behalf. Ernest L. Newman’s rights accrued after his wife’s death, and he was not estopped to claim the benefits due under the policy of insurance. The ruling and judgment of the trial court are affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action to foreclose a mortgage on real property. Two defendants, as sole heirs of the mortgagors, invoked the statute of limitations. Their demurrer was overruled. Some uncontroverted testimony and a mass of correspondence was introduced, and the trial court gave judgment for plaintiff. One of the defendant heirs acquiesced. The other has appealed. It appears that in July, 1927, one S. D. Aulls and his wife borrowed $12,800 from the plaintiff company, executing their promissory note therefor, payable on August 1,1932, with 5 percent interest. As security they executed a mortgage on a section of Chautauqua county land. Aulls died in 1931 and his wife in 1932, both intestate. Their two daughters, Marion A. Neal and Carolyn Day, defendants herein, are their only heirs. Default was made on the indebtedness at its maturity, and this action to foreclose the mortgage was begun on May 12, 1938, some 5 years, 9 months, 11 days thereafter. To toll the statute of limitations plaintiff alleged— “That said mortgage indebtedness became due by its terms on August 1, 1932; that the heirs at law of'said S. D. Aulls, deceased, were unable at said time to pay said mortgage indebtedness .and thereafter, orally and in writing, as hereinafter set out,, requested plaintiff to extend the time for the payment of said mortgage and accruing interest thereon, and they orally and in writing agreed to pay the same, as hereinafter set out.” The petition also alleged that Carolyn Day stated orally to plaintiff’s agents that she was not well and not in a condition to transact business, and she requested that all negotiations be had with her sister, Marion A. Neal, whom she had authorized to act for her, and— "... That in compliance with said oral request plaintiff had all further negotiations, both oral and written, with the said Marion A. Neal; that in the interviews had by plaintiff’s said authorized representatives with the said Marion A. Neal she, on behalf of herself and her said sister, orally requested extension of time for the payment of said mortgage debt and the interest thereon and for herself and her said sister agreed to pay said mortgage debt and orally requested plaintiff not to foreclose said mortgage; and she stated that the expense of foreclosure was unnecessary and that she and her sister would prefer to make' a. deed covering said lands to plaintiff with a contract to repurchase said premises in eighteen months.” Plaintiff also alleged that “said oral agreements” were confirmed by letters written by Marion A. Neal, and excerpts thereof were attached to plaintiff’s petition. Plaintiff further alleged— “That under and pursuant to said oral and written agreements and promises to pay plaintiff said mortgage debt, plaintiff did extend the time of payment of said indebtedness but said defendant owners have been unable' to pay said indebtedness or refinance the same and they have wholly failed to convey said mortgaged premises to plaintiff.” [Italics! ours.] Judgment in rem for the amount of the Aulls indebtedness was prayed for, and that the mortgage be foreclosed, the property sold and the proceeds disbursed according to law. Defendants filed a verified answer. It contained a general denial, but admitted their parents’ execution of plaintiff’s note and mortgage, that their parents had both died intestate, and that they were their only heirs. Answering further, defendants denied generally and specifically the matters pleaded by plaintiff to toll the statute of limitations. They also interposed the five-year provision of that statute to bar plaintiff’s action. Plaintiff’s verified reply was a general denial. ” Plaintiff called as witnesses three of its representatives. One of these, Aldrich, testified that in Bucklin in December, 1936, he par ticipated in a conversation between Mrs. Marion A. Neal and Mrs. Carolyn Day and one Humphrey who, like himself, was an agent of plaintiff; that Mrs. Neal proposed to put up a deed signed by herself and her sister conveying the property to plaintiff “in escrow,” and that— . . it stay there in escrow for eighteen months, and during that eighteen months we have the privilege of paying the principal of the loan, $12,800, and your company, canceling the mortgage and then we get the deed back? If, during that eighteen months we do not pay the principal of the loan a deed goes to the Franklin Life Insurance Company.’ I told Mi’s. Neal and Mrs. Day that that proposition wouldn’t be acceptable to the company, but I offered an alternative proposition. . . . Mrs. Neal and Mrs. Day objected to that- proposition. . . . They suggested that they give us a deed and take back a repurchase option. Mrs. Neal was the spokesman and Mrs. Day was there at the conversation, a part of it. She was in the circle. When they suggested that we give them a repurchase — the privilege of repurchasing for $12,800, I wasn’t authorized to make that kind of discount, and I stated that I would take it up as soon as I got back to the office and let them hear through Mr. Humphrey whether the company would accept that proposition or not.” Humphrey, another agent of plaintiff, told of a conversation he had with Mrs. Marion A. Neal in Bucklin in March, 1934. He testified: “A. Mrs. Neal said that they expected to pay this mortgage and if the company would — they would pay it if the company would be patient with them, and at that time they had made application with the Federal Land Bank for a new loan to take up the loan. “Q. And that was all that was said at that time? A. That was all. “[Counsel for defendants]: I object to this as far as Carolyn Day is concerned. “The Court: It will not be considered so far as Mrs. Day is concerned. . . . “Q. Did you have another conversation with Mrs. Neal other than the one time? A. Yes, I went back there the second time, in May, 1936. “Q. State as near as you can what you said to Mrs. Neal at that time and what she said to you relative to this loan. “[Counsel for defendants]: We object to it as far as Mrs. Day is concerned. “The Court: It will be sustained as to Mrs. Day. . . . “Q. Did you have any further conversation with Mrs. Neal? A. We just talked in a general way about business conditions. She said she didn’t want the company to foreclose on this mortgage and I told her we didn’t want to, and would rather work it out the other way if we could. . . . “Q. State just what was said by you and Mrs. Neal relative to a foreclosure or their executing a deed to the property. A. Well, it was along the line I have testified to; that she didn’t want a foreclosure, they intended .to pay it, rather than have a foreclosure they would make a deed.” Lloyd, another agent of plaintiff, testified: . . My duty is to try to determine what is the best plan to deal with delinquent loans and to try to have the delinquency brought up. I made a trip out to the Aulls farm to go over the property and also to confer with the owners. That was in 1936. Mr. Aldrich was with me.” Lloyd testified that he met the defendants at a bank in Bucklin in 1936, that various sundry proposals and counter proposals for dealing with the loan and mortgage were suggested, all of which came to naught. He testified: “. . . But the proposition was finally boiled down — the proposition that was made to put a deed up in escrow was not satisfactory, and the proposition was boiled down to taking eighteen months for redemption and paying the face value of the loan, $12,800. “Q. Who did most of the talking? A. Mrs. Neal was spokesman for them. “Q. Did Mrs. Day hear all that was said? A. I think she did. . . . “Q. Did Mrs. Day say anything during these conversations? A. She only answered Mr. Aldrich’s question as to her name and the fact that she was a widow. That’s all I can recall distinctly. . . . “Questions by the Court: “Q. Who was this proposition boiled down by? A. The proposition made to them was to pay the loan. The best we could obtain after— “Q. What did they say to that? A. They said it wouldn’t be considered. It was impossible. . . . “Q. What did Mrs. Neal say . . . that caused you to try to do more? A. They seemed to find it difficult or impossible. We were not arriving anywhere on that basis. We tried to get an assignment of the rental money for the oil lease if the oil lease was effected, and I think I failed in that, too. I failed in getting that. . . . “Q. What did Mrs. Neal say she would do, if anything? A. She finally said she would put the deed up in escrow and if they were not able to redeem it at the end of that period they would give a deed to it. That was the conversation. . . . “Q. What did you say in response to that? A. I said to her that we would recommend that the company accept that. . . .” In the mass of letters which passed between Mrs. Marion A. Neal were a number of statements which the trial court deemed of sufficient evidential significance to incorporate in its extended findings and conclusions. We can only give space to a few, but they are typical: “May 12, 1933. We will pay the tax when due if the loan can be extended. “Nov. 20, 1936. Will take care of the delinquent taxes if some deal can be made for the next eighteen months. . . . “July 27, 1933. We will place our application for a loan with the government and advise you just what can be done in regard to refinancing this loan. “January 23, 1934. All that we can do in connection with this loan and interest is to transfer the loan to a federal loan, . . . but since . . . “October 8, 1935. Since writing you we have been in correspondence with the secretary of the Chautauqua County Loan Association in regard to our new application and-he advises us to obtain a statement from the Franklin Life Insurance Company that they would accept the proceeds of the highest approval that we can get. . . . “In answer to a letter from the' plaintiff in which it stated that Mr. Humphrey was now recommending foreclosure of the loan, Mrs. Neal, among other things, wrote this: “ ‘In regard to the above-mentioned loan we have been unable to obtain a federal loan to take care of our loan that is delinquent. Rather than have you foreclose on this land we would be willing to put up a deed and contract on this land redeemable in eighteen months and at the end of that time unless we are able to redeem the land the deed would be turned over to you at the expiration of eighteen months. We would like to own this land but unless you are willing to make a good reduction on the mortgage we are unable to obtain a loan to refinance the present mortgage'.’ . . . “January 21, 1937. We have had an inquiry about leasing this land and if we are able to lease the land for oil we would want to be able to make this lease under the [proposed] repurchase agreement. “March 10, 1937, writing relative to the oil and gas lease: ‘The parties that are making this lease may ask that you sign the lease due to the mortgage being delinquent. You will advise us if our leasing according to the enclosed lease meets with your approval.’ “March 18, 1937. On account of the mortgage being past due they thought it better to have the Franklin people sign the lease.” Defendants’ demurrer to plaintiff’s evidence was overruled. The trial court specifically found that the letters of Mrs. Neal as quoted above and otherwise, were sufficient to toll the statute of limitations so far as she herself was concerned, but were insufficient to deprive Mrs. Day of the protection of the statute. The court, however, did hold that Mrs. Day was bound by what was said and done at the defendants’ meeting with plaintiff’s representatives in the bank at Bucklin. Its informal findings, in part, read: “However, a meeting was arranged for, in some way, to be held in the bank at Bucklin between representatives of the plaintiff and these defendants, and both Mrs. Day and Mrs. Neal were present at that interview. . . . “It is quite apparent that during this meeting it was several times suggested that the defendants would prefer to give a deed to the' property rather than have the mortgage foreclosed, and in the judgment of the court this evidence shows such a recognition of this mortgage on the part of Mrs. Day as to remove her from the protection of the bar of the statute of limitations, and the court is of the opinion that the plaintiff is entitled to a judgment foreclosing its mortgage.” In addition to these specific findings, the court made a general finding which recited that “on the issue of the foreclosure of the mortgage sued on herein the court finds generally in favor of plaintiff and against the defendants.” Judgment was entered accordingly and Carolyn Day appeals, contending that the evidence was insufficient to toll the statute of limitations. On this point we have no concern with the sufficiency of the evidence to deprive Mrs. Marion A. Neal of the protection of the statute. But as to Mrs. Day the trial court found that the correspondence between Mrs. Neal and the plaintiff was insufficient to bind Mrs. Day. Touching the conference between plaintiff’s representatives and the two defendants in the Bucldin bank, it 'is too clear for cavil that that conference failed of its purpose. The conferees reached no agreement. At its conclusion Mrs. Neal, on behalf of herself and sister, finally said “she would put up a deed in escrow and if they were not able to redeem it at the end of that period they would givé a deed to it.” “Q. What did you [witness Lloyd] say in response to that? A. I said to her that we would recommend that the company accept that.” The company did not accept that final proposition. No deed was executed and placed in escrow. Nothing was said, nothing was done by Mrs. Carolyn Day nor in her behalf at that conference in the Bucldin bank which deprived her of the benefit' of the statute of limitations. (Miles v. Hamilton, 106 Kan. 804, 189 Pac. 926, syl. ¶ 3; Updegrove v. Cooper, 147 Kan. 752, 78 P. 2d 843.) To sustain the judgment, counsel for appellee argues that defendants paid taxes and kept up the insurance on the property after the maturity of the mortgage indebtedness, thereby recognizing the mortgage which in its specific terms had bound the original mortgagors to that effect. But on this point counsel for appellee is arguing for something outside the record. There was no evidence of such payments. Moreover, the fact of defendants’ payment of taxes or insurance premiums, if they did pay them, was quite as consistent with the theory that they were protecting their own interest in the property as that they were recognizing the continued validity of plaintiff’s mortgage. (Snyder v. Miller, 71 Kan. 410, 80 Pac. 970; see, also, Spesard v. Spesard, 75 Kan. 87, 88 Pac. 576, syl. ¶ 5.) Furthermore, plaintiff’s petition contained no allegation that defendants did pay taxes or insurance premiums. What plaintiff did plead to toll the statute was certain “oral and written agreements to pay plaintiff said mortgage debt” and that pursuant thereto “plaintiff did extend the time of payment of said indebtedness.” That allegation, which was the vital matter to be proved to toll the statute, was not supported by any evidence. An agreement, whether oral or written, requires the assent of both parties. Not only was there a total dearth of evidence to prove an agreement but the evidence adduced by plaintiff’s witnesses to prove such alleged agreement did prove the complete failure of plaintiff’s representatives and defendants to reach any agreement. Counsel for appellee stress the general finding of the court “on the issue of the foreclosure of the mortgage.” As we have seen, however, that general finding was not sustained by evidence and cannot stand as against Carolyn Day. The judgment of the district court is reversed and the cause remanded with instructions to enter judgment in favor of Carolyn Day, appellant herein.

The opinion of the court was delivered by Smith, J.: This is a workmen’s compensation case. Judgment was for claimant. Defendant appeals. The first question to be settled is the jurisdiction of the commission to set aside an'award. Therefore, the facts bearing on that matter, which are not disputed, will be stated first. The claimant was injured on July 31, 1937, when a rock rolled down a slope where he was working and hit him on the leg. This injury developed a swollen condition toward evening. The next morning he was placed under the care of the company doctor. On August 5 he was put in bed in the hospital, where he remained until September 18,1937. On September 18 he was returned to his home, where he remained in bed for two weeks. On one occasion one of the doctors at the hospital told him he would see the straw boss at the mine and see if he could not get him some light work. The doctor stated that the exercise would be good for him. The boss at the mine told him, however, that they had no light work. During this time the company doctor diagnosed the trouble of claimant as “inflammation of the lymphatics” of the left leg. On October 30, 1937, a joint petition and stipulation was filed with the commission. This petition recited that both parties were operating under the workmen’s compensation act; that respondent was a self insurer, and that claimant met with a personal injury arising out of and in the course of employment with respondent. The petition then stated the diagnosis of the company doctor and gave his opinion that the disability of the workman would last for about three months, during which time he would be able to do light work. The stipulation then stated that the weekly rate of compensation to which claimant was entitled was $13.68; that all medical and hospital bills which had been incurred would be paid by respondent, and that the claimant had been paid eleven weeks compensation at the rate of $13.68 per week, or $150.48. The parties agreed that the balance of compensation to claimant should be paid in a lump sum of $150. The reason for the lump-sum payment was given in an affidavit by claimant wherein he stated that such a payment would be more beneficial to him than the payment of a weekly compensation because by the investment of the $150 he could secure light work. The stipulation then contained the following paragraph: “The parties hereby waive notice and formal hearing herein and agree that the commissioner of workmen’s compensation may make and enter an award herein, based upon the facts as set forth, said award to be binding and of the same effect as if the facts had been testified to and adduced at a formal hearing (and that said settlement will be accepted in full settlement of all claims arising out of or connected with said injury) that the costs herein may be taxed and assessed to the respondent.” This stipulation was signed by claimant and his attorney and by respondent, and was submitted to the commissioner of workmen’s compensation on November 2, 1937. That officer made an award in which he recited the above facts, and in which it was provided as follows: “6. That the parties agree the balance of compensation to claimant shall be paid in a lump sum of $150 in full settlement. “7. The commissioner further finds the parties waive notice and formal hearing and agree that an award may be entered herein based upon the facts as set forth, said award to be binding and of the same effect as if the facts had been testified to and adduced at a formal hearing, and that said settlement will be accepted in full settlement of all claims arising out of or connected with said injury, and that the costs herein miay be taxed and assessed to the respondent. “The commissioner is of the opinion by reason of the foregoing stipulated facts that the claimant herein is entitled to compensation in the amount of one hundred fifty dollars ($150) in addition to the compensation heretofore paid, and that the respondent is liable to claimant for same. That in addition to such compensation the respondent, on behalf of claimant, shall pay all medical and hospital expenses incurred. “Wherefore, award of compensation is hereby made in favor of the claimant, Virgil A. Farr, and against the respondent, Mid-Continent Lead & Zinc Company, a self insurer, in the amount of one hundred fifty dollars ($150), in addition to the compensation heretofore paid, and the agreement between the parties that the compensation awarded herein be paid in one lump sum is hereby approved. “Further award is made that the respondent pay the medical and hospital expense incurred herein.” On November 8, 1937, the receipt of claimant showing payment of the award of November 2, 1937, in full was filed with the commissioner. In this receipt the claimant acknowledged receipt of $300.48, which was the amount of the $150 provided for in the award, together with the amount paid prior to that time. On June 6, 1938, counsel for claimant filed a letter with the commission, in which claimant asked that the settlement just referred to be set aside on the ground of fraud and mutual mistake. Respondent appeared and asked that this application be dismissed on the ground that the commission had no jurisdiction. On the filing of this motion claimant filed a more detailed application to set the settlement aside. This application set out some details with which we are not concerned just now, and alleged that the company doctor had told claimant that his injuries were only temporary, but that he was mistaken as to that; that both parties had relied on this statement of the doctor and had entered into the stipulation, when in truth and in fact claimant’s condition was a permanent injury to his left leg, which injury would continue for the balance of his life. The application further recited the treatment claimant had received at the hospital; that he had followed the directions of the doctor who was employed by respondent; that the doctor had stated to claimant that he was practically cured, and that it would be only a matter of three months until he could go back to his work; that the company doctor made the above statements while acting for and on behalf of the respondent, and was authorized to represent them in examining claimant and discovering and disclosing to claimant his physical condition; that being induced by these statements claimant signed a paper of some kind presented by respondent; that at the time of his signing this stipulation claimant’s injuries were not temporary and it was not true that he had suffered no permanent injury, all of which was well known to respondent or with the exercise of reasonable care should have been known to it. The application further stated that the company doctor told both claimant and respondent that the injuries of claimant were only temporary and both claimant and respondent relied on this statement, when in truth and in fact his injuries were not temporary, but permanent. The application further stated that the settlement in the sum of $150 was grossly inadequate, for the reason that it only embraced compensation due him for three months, whereas as a direct result of the injury claimant was entitled to compensation for permanent disability, and the consideration for the agreement was insufficient and unconscionable, and based upon a false representation by the doctor and mutual mistake of fact by claimant and respondent. The prayer of the application was that the settlement and final receipt be set aside; that the commission set a date for the hearing and upon this hearing determine the extent of the disability of claimant and make an award of compensation in accord therewith. Respondent filed a motion to dismiss this application on the ground that the commission had no jurisdiction of it. This motion was overruled and the application was heard on its merits. The commissioner in his history of the case made a statement as follows: “As to the question of setting aside the final release and award on joint petition and stipulation, the commissioner is of the opinion that the joint petition and stipulation filed on November 1, 1937, was nothing more nor less than a final release. No hearing was had as contemplated by the compensation act for the purpose of taking testimony, and the award issued was nothing more nor less than a written approval of an agreed settlement. Under such circumstances the claimant has a year within which to begin proceedings to set aside a final release, and claimant did institute proceedings to set aside the agreed settlement or final release and award within one year. The commissioner is therefore of the opinion and finds that the agreed settlement as set forth by the joint petition and stipulation, the award and the final receipt and report should be and the same are hereby set aside and held for naught.” The commission made findings that the weekly compensation rate to which claimant was entitled was $13.68; that the joint petition and stipulation and award and final receipt should be set aside, and the claimant was found to be entitled to compensation for a period not to exceed 415 weeks at the rate of $13.68 per week. The compensation then due and owing claimant was found to be for seventy weeks, or $957, which should be paid in one lump sum, and the balance paid at the rate of $13.68 per week. An award was made accordingly. From this award the respondent appealed to the district court. That court considered the case on the transcript of evidence that was before the commissioner, and made findings as to the facts about as they have been detailed here, and further made the following finding: “The court further finds that in making such settlement the claimant believed, acted and relied upon the statements made to him by respondent’s doctor, M. A. Connell, and respondent’s claim adjuster, Wesley Bullock, as to his condition, the nature and extent of his injury, and, assuming that said doctor and said claim adjuster were acting in good faith in negotiating and making such settlement, the court finds that the claimant and the respondent, acting through its doctor and claim adjuster, as its agents, were mutually mistaken as to the condition of claimant and the character and extent of his injury as same existed at the time of making such settlement; and the court further finds that the amount paid claimant by respondent in such settlement, was grossly inadequate, and that the settlement, joint petition and stipulation, and the award of November 2, 1937, and final receipt should be set aside and held for naught and further compensation should be granted. “The court finds that the award of the workmen’s compensation commissioner made on November 2, 1937, amounted to nothing more or less than the written approval by the commission of an agreed settlement entered into by and between the parties and that section 28 of the compensation act (G. S. 1935, 44-528) is not a bar to claimant’s cause of action, and that, under section 27 of the compensation act (G. S. 1935, 44-527) claimant is entitled to relief on the ground of mutual mistake of fact.” Judgment was entered in accordance with the above findings. Respondent has appealed to this court. The first argument of respondent is that the commission’s award of November 2, 1937, based upon an agreed statement of facts embodied in the joint petition and stipulation was a judgment of the commission and is controlled by G. S. 1935, 44-528, and that after the final payment of the award provided for therein the commission lost jurisdiction of the cause. G. S. 1935, 44-528, provides as follows: “At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, and in connection with such review the commission may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commission, and the commission shall hear all competent evidence offered, and if it shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbitrator, making the award acted without authority, or was guilty of serious misconduct, or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; and if the commission shall find that the workman has returned to work for the same employer in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, or shall find that the workman has absented himself and continued to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the commission shall cancel the award and end the compensation: Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 (44-510) of this act.” Attention is called to the first provision of the above section, which provides that the action contemplated by the commission may be taken “at any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties.” Respondent points out that the application to set aside the award in this case was made after the final payment. Claimant points out G. S. 1935, 44-527. That section is as follows: “At the time of making any final payment of compensation, the employer shall be entitled to a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a copy thereof shall be filed by the employer in the office of the commission within sixty (60) days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, the same shall be void as against the workman. The commission shall accept, receipt for, and file every agreement, finding, award, agreement modifying an award, final receipt for compensation or release of liability or copy thereof, and record and index same, and every such agreement, finding, award, agreement modifying an award, final receipt or release, shall be considered as approved by the commission and shall stand as approved unless said commission shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of its disapproval, giving its reasons therefor, sending a copy of the same to each of the parties by registered mail: Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.” The commissioner of workmen’s compensation and the trial court both took the position that the so-called award of November 2 was nothing more than a final release under the terms of the above section, and that proceedings could be begun within a year after the giving of the final release to set it aside pursuant to the rule laid down in Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268, where this court held that releases could be set aside on any ground upon which a contract could be canceled, in this case for fraud or mutual mistake of fact. We thus are confronted with the question of which of the two foregoing sections is applicable to this case. If the action of the commission in this case be held to be an award, as spoken of in G. S. 1935, 44-528, then the proceedings to set it aside were brought too late and should have been dismissed. The joint petition and stipulation, which was executed by both parties, stated that the commissioner might “make and enter an award based upon the facts set forth.” Both the claimant and respondent were represented by counsel. Their stipulation was submitted to the commission which acted on it. The instrument by which the commission evinced its action was called an award. This instrument was in terms an award as plain as language could make it. This court has considered the question of modification of awards many times. In Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056, the original award had all been paid but the last payment. A check was given for that payment, but was not cashed. Subsequently proceedings were commenced to modify the award on the ground that it was grossly inadequate. The trial court did modify it and on appeal this court affirmed the lower court. This court noted in the opinion, however, that the result would have been different had the check for the final payment been cashed. This court considered R. S. 44-528 in the opinion. In DeMillsap v. Century Zinc Co., 123 Kan. 570, 256 Pac. 136, the authority of the court to modify an award was said to depend on whether the application was made before or after the final pay ment had been made. To the same general effect is the holding of this court in Murphy v. Cook Construction Co., 130 Kan. 200, 285 Pac. 604. (See, also, Doss v. Cornelison & Kelly, 124 Kan. 631, 261 Pac. 584.) These authorities have been cited many times, the most recent one being Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 73 P. 2d 1120. The legislature at the session of 1927 amended the workmen’s compensation act in many particulars. Among these amendments was the addition of the words “but not after” to what is now G. S. 1935, 44-528, so that the language of the section now reads “At any time before but not after final payment had been made.” The addition of this language to this section is a clear indication of the intention of the legislature to emphasize the provision that the modifications of an award that had been agreed upon by the parties could not be had after the final payment pursuant to it had been made. Another persuasive circumstance is that this application to modify the award was filed a long time after the final payment of the award would have been made, had it been made for weekly payments rather than in a lump sum, as it was in this case. Hence, had this award been made for weekly payments the claimant would have been barred by the final payment having been made before the time when this action was filed. Another circumstance worthy of note is that the last provision of G. S. 1935, 44-527, is as follows: “No proceeding shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.” This provision makes no reference to an award. Evidently the legislature did not consider that any proceedings could be instituted to set aside such an award. There can be no doubt in this case but what the payment made here was final payment of an award. Hence, the application of the claimant to modify this award was filed too late, since it was filed after this final payment was made. The judgment of the trial court is reversed, with directions to render judgment for the respondent.

The opinion of the court was delivered by Hoch, J.: This was an action for damages for injuries sustained by an eight-year-old boy when he was hit by a truck. Plaintiff prevailed and the defendants appeal. The accident took place on the afternoon of January 23, 1937, on Second street between St. Francis and Emporia avenues, in Wichita. A snow had fallen a day or two before and had been scraped into the center of the street, making a ridge several feet wide at the base and one or two feet high. The street was icy, slippery or slushy. Second street is forty feet wide, and cars were parked parallel to the curb on the south side and diagonally on the north side. The day was clear. Defendants’ truck, belonging to the Consolidated Gas Utilities Corporation, was being driven by Tucker, an employee of the company. The truck was going west on Second street and had stopped at a traffic light at the intersection of Second and St. Francis and was the first car to proceed westward at the “go” signal. There was nothing to obscure the vision of the driver as he proceeded westward other than such cars as were parked along the street. When he had reached a point forty or fifty feet west of the north- and-south alley which crosses Second between St. Francis and Emporia avenues, Waskey Walls, who was then eight years old, was hurrying across the street northward and was struck by the truck. What part of the truck hit him is not entirely clear from the record. The boy testified that he was hit by the front bumper. The principal injury alleged was a severe fracture of the femur bone of the right leg, together with shock to his entire system. Tucker, the truck driver, had applied his brakes in order to avoid hitting the boy and swung his truck to the left and into the snow ridge. When the truck came to a stop it was heading somewhat to the southwest. The boy was lying a few feet to the west or northwest of the right rear end of the truck. The acts of carelessness and negligence alleged in the petition were in substance: driving the truck at a greater rate of speed than twenty-five miles per hour, to wit, at the rate of approximately thirty miles per hour, in violation of the city ordinances; driving at a greater rate of speed than was reasonable, safe and proper, having due regard for the use and condition of the street and the occupancy thereof, and at a rate of speed such as to endanger the life, limb and property of others on the street in violation of the city ordinance; failing to keep a proper lookout for persons crossing the street; failing to have the truck equipped with chains; failing to observe the plaintiff as he was crossing the street; and failing to bring the truck to a stop before striking the plaintiff. The answer denied all carelessness and negligence on the part of the defendants and alleged negligence on the part of the plaintiff. An action involving the same accident was first tried in 1937 and verdict rendered for the plaintiff for $1,500. On appeal the verdict was set aside and a new trial granted on the principal grounds that the answers of the jury to some of the special questions submitted were inconsistent with each other and with the general verdict. (148 Kan. 896, 84 P. 2d 881.) The instant action was tried in April, 1939. At the close of plaintiff’s testimony the defendants demurred to the evidence. The demurrer being overruled, defendants introduced their evidence. The jury returned a verdict for the plaintiff for $2,500, and answered certain questions submitted. Defendants moved to set aside certain of the jury’s answers, for judgment notwithstanding the general verdict, and for a new trial, all of which motions were overruled. Sixteen special questions were submitted and answered. Again, as in the former review, the appeal is concerned principally with the special questions and answers. The specifications of error also include the overruling of the demurrer, the giving of certain instructions, and the overruling of the motions heretofore referred to. The plaintiff is entitled to have the evidence construed in the way most favorable to him and to have the verdict upheld if possible.' With that principle in mind, we have carefully examined the evidence in its relation to the answers to the special questions, and particularly the evidence on the part of witnesses for the plaintiff. “Q. 2. Did plaintiff immediately prior to the accident understand and appreciate that he was likely to be injured in crossing the street unless he was careful in avoiding moving vehicles? A. Yes, but he failed to realize the danger.” It is hard to understand just how the plaintiff could “appreciate that he was likely to be injured in crossing the street unless-he was careful in avoiding moving vehicles” and at the same time “failed to realize the- danger.” However, the jury may have had some distinction in its mind, and we shall not stress the apparent inconsistency in the answer. “Q. 3. Did plaintiff take the ordinary precautions for his own safety that a reasonable, normal child of his age, understanding and intelligence would have taken under the circumstances? A. Yes.” Appellants say there was no testimony whatever to support this answer. The only evidence we have been able to find is the testimony of witness Mason, who said: “When I first saw him [Waskey Walls] he was seemingly waiting for the truck going east to get by. I don’t know where he was standing when I first saw him. The United Sash & Door truck was going east. The boy went in front of it, barely escaping being hit. He paused momentarily on the snow ridge in the center of the street, then darted across the street. He was looking at the truck coming toward him.” Perhaps Mason’s statement that the boy was “seemingly waiting foil the truck going east to get by,” and that “He was looking at the truck coming toward him” was some evidence of precaution. “Q. 4. Do you find that plaintiff (a) Ran into Second street? A. No. (6) Entered Second street from behind parked car. A. No.” We do not know on what testimony the jury said the boy did not run into the street. Three witnesses for the plaintiff testified they saw the accident. They were Whitely, Medcalf and Mason. In addition to testimony of Tucker, the truck driver, the defendants submitted a transcript' of the testimony of witness Neas who was a witness for the plaintiff at the first trial, but who was outside the state at the time of the second trial. Whitely was sitting in his car, which was facing east and was parked on Second at the southwest corner of Second and Emporia. He testified: “I could see the accident reasonably well. As nearly as I can remember, I saw the boy come hurriedly to the pile of snow; climb up onto the pile of snow and down on the other side into the path of an approaching truck. The lad was traveling in a northeasterly direction. I did not see him as he first entered the street, because there were other cars parked along the street so that he did not come into my path of vision until he had come toward the center of the street. There was another truck going east at the time. It was owned by the United Sash and Door Company. I couldn’t say as to whether the boy stepped .in front of the truck going east, on behind it, but I know that he had a narrow escape. I don’t know at what point the little fellow entered the street. I don’t know whether he came down a driveway of the D. A. Winters filling station or from some other place. All I know is that he was on his way hurriedly across the street. There were cars parked on the south side of Second street, I don’t recall how many, or exactly where they were, but I know there were some cars parked there. “Wheiv I first saw the boy, he was just approaching the pile of snow in the center of the street. He seemed to lose his balance as he came up onto the ridge. It was just a little too much for him to negotiate in regular whlking so he attempted to climb over it and he did climb over and hurried across the street directly into the path of this (defendant’s) truck.” On cross-examination Whitely said: “There was a truck proceeding down the south side of Second street going east. Suddenly, I saw a boy as I looked to the east. He was on the north side of the truck going east, approaching the snow ridge' in the middle of the street. The little fellow was running.” Witness Medcalf, for the .plaintiff, was sitting in the car with Whitely. He testified: “I just happened to look down there just as the boy was at the bank of ice, just ready to cross. He paused momentarily and crossed over the ridge. Mr. Tucker’s truck was approaching right there at the same time. I saw the' truck hit the boy as it. turned. I don’t know where the boy came from. I did not see him as he entered Second street. There was a truck going east at the time, I don’t know whether the boy passed in front of the eastbound truck or back of it.” On cross-examination he said: “The boy was right at the snow ridge ready to go over the ice when I first saw him. He was moving rapidly, getting ready to spring over the ridge. . . . I did not see the boy at the time he left the south curb. When I saw him he' was just about ready to jump over the snow ridge heading right into the path of the westbound truck. The truck was already pretty close to him.” Mason, an employee at a filling station at the southeast corner of Second and Emporia, and a witness for the plaintiff, testified that he had just come out of a door at the station and was going across the street. He testified: “When I first saw him, he was seemingly waiting for the truck going east to get by. I don’t know where he was standing when I first saw him. The United Sash and Door truck was going east. The boy went in front of it, barely escaping being hit. He paused momentarily on the snow ridge in the center of the street, then darted across the street.” Witness Neas, who was the driver of the eastbound truck which barely missed hitting the boy, testified: “I saw Waskey Walls as he came north across the street. He ran in front of my truck and went on across the street in front of the westbound truck. I did not see the boy until he was out in the street.” It thus appears that all witnesses testified that the boy was either “hurrying” or “running” or “moving rapidly” or “darting across the street.” The only way that testimony could possibly be harmonized with the jury’s answer would be to say that at the one instant the boy entered Second street he was not running. There was no testimony at all on that point. “Q. 5. Where and at what point on Second street did plaintiff enter Second street? A. Prom east di-ive of D. A. Winters.” Perhaps it cannot be said that there was no evidence whatever to support this answer, but it was certainly extremely meager. Whitely, who was sitting in his car looking eastward, testified, “I did not see him as he first entered the street, because there were other cars parked along the street so that he did not come into my path of vision until he hadi come toward the center of the street. ... I don’t know at what point the little fellow entered the street. I don’t know whether he came down a driveway of the D. A. Winters filling station or from some other place.” Witness Medcalf said he did not know where the boy came from. Witness Neas said: “I did not see the boy until he was out in the street. The reason for that being that the boy came out between a couple of cars parked along the south side of Second street.” Witness Mason, who had seen the boy before he started into the street, testified: “I don’t remember whether the boy was in the driveway north of the building or on the sidewalk. He entered the street either here or in here (pointing). He might have come out of a driveway, but I am at a loss to say he did or not. Perhaps he probably did.” Undoubtedly there were cars parked on the south side of the street, although the evidence does not disclose how, many. Mason’s statement that the boy was probably standing in the driveway, though he didn’t know or remember where he was standing, is the only testimony we can find which could possibly support the answer that the boy did not come out from behind parked cars, or that he entered the street from Winters’ east driveway. “Q. 8. Approximately where was the plaintiff when Tucker first saw him? A. Passing in front of eastbound truck. “Q. 9. What precaution, if any, did Tucker take to avoid striking the plaintiff after he first saw him? A. None. “Q. 10. What precaution, if any, did Tucker take to avoid striking the plaintiff the moment before striking him? A. Applied his brakes and turned south into snowbank in middle of street. “Q. 11. Approximately where was Tucker when he first saw the plaintiff? A. East side of alley.” It will be noted that by answers 8 and 11 the jury said that the boy was “passing in front of the eastbound truck” and Tucker was “east side of the alley” when he first saw the boy. We find no testimony whatever to support the answer to question No. 11. The only person who testified as to where Tucker was when he first saw plaintiff was Tucker himself. He said: “As I got just west of the alley there was a truck coming east on the south side of the street. Just before I passed the eastbound truck, just in a flash, there was a boy in the center of the street. I don’t know where he came from, but he was directly in front of the other truck.” It is true that witnesses testified that the view down the street was unobstructed, but this does not justify a finding that Tucker actually saw the boy when he (Tucker) was east of the alley. In fact, all the other testimony discredits such an answer, even as a conclusion. It was evidently only a moment or two from the time the boy entered the street until he was struck by the truck. Whitely testified that “it all happened in a split second of time,” and yet the jury’s answer would have the defendants’ truck travel from a point east of the alley — at least sixty to seventy feet — apply the brakes, and hit the boy while in the same length of time the boy only covered the few feet from a point in the eastbound lane to a point beyond the center of the street. Questions 14 to 16: “Q. 14. Was the defendant Tucker guilty of any act or acts of negligence that proximately caused the accident? A. Yes. “Q. 15. If you answer the foregoing question in the affirmative and only in that event, state specifically the nature of such act or acts of negligence? A. Tucker was driving at a greater rate of speed than is reasonable, safe and proper having due regard for the use and condition of the street and the occupancy thereof at the time, and at such a rate of speed as to endanger the life, limb and property of any person according to instructions set forth in number 16 of court’s instructions. “Q. 16. How fast was defendant Tucker driving his truck when he first saw the plaintiff? A. Seventeen miles.” It thus appears that the only act of negligence imputed to Tucker by the jury was that he was driving at a greater rate of speed than was safe and proper having regard for the use, condition and occupancy of the street at the time, and at a rate which endangered people on the street. This answer merely states a conclusion. What evidence supports it? What was the testimony on the question of speed? The jury found the truck was traveling at seventeen miles an hour. This answer was apparently based upon Tucker’s testimony, who said he was going from “fifteen to twenty miles, maybe seventeen.” Neas testified that the truck was probably traveling between fifteen and twenty miles an hour. Whitely testified, “From the time I first saw the truck as it approached the point of impact, it was being driven at a moderate rate of speed.” Medcalf testified, “The westbound truck ivas being driven at a moderate rate of speed.” It appears, therefore, that all we have as to speed is the jury’s finding that the truck was going seventeen miles and the testimony of plaintiff’s witnesses that it was traveling at “a moderate rate of speed.” Considered by itself, the answer “seventeen miles” certainly could not be held to establish unreasonable speed, as a matter of law. And as heretofore stated, the answer to question 15, being a conclusion, can only stand, if supported by evidence. There was no testimony whatever that “seventeen miles” or “a moderate- rate of speed” was too fast under the conditions then and there existing. No testimony was offered as to what rate of speed would have been safe and proper under the circumstances. In fact, in the absence of any statement or showing to the contrary, “a moderate rate of speed” can only be interpreted as a rate that was moderate under the conditions and circumstances then and there existing. The jury did not find that the defendants failed to keep a.proper lookout or that they were guilty of any of the other acts of negligence alleged in the petition. When the jury found that the specific negligence chargeable to the defendants was that Tucker was driving at an unreasonable speed, it thereby absolved defendants from the other allegations of negligence. (Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Bass v. St. Louis-S. F. Rly. Co., 143 Kan. 740, 744, 57 P. 2d 467; Cole v. Cook, 137 Kan. 250, 20 P. 2d 483; Stock v. Scott, 132 Kan. 300, 295 Pac. 638; Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.) If the truck was ten feet from the plaintiff when the brakes were first applied and five feet or less from him when the truck turned into the ridge of snow, certainly no lack of good brakes was indicated. In answer to special questions the jury said that Waskey was an intelligent and normal child, and that he was not guilty of any act of negligence or carelessness that proximately contributed to his in jury. He should not, of course, be held to the degree of accountability of an older person, but only to that of an ordinary normal child of his age. However, in view of the conclusions reached on other questions, we do not deem it necessary to discuss the question of contributory negligence. Nor is it necessary to discuss other assignments of error. It is clear that defendants’ motion to strike should have been sustained as to answer to question No. 11, as to answer to question No. 15, together with the answers to the preliminary questions Nos. 13 and 14. Having been so sustained, the defendants would stand charged with no negligence and would have been entitled to an order sustaining the motion for judgment notwithstanding the general verdict. The verdict must be set aside with directions to enter judgment for the defendants. It is so ordered.

The opinion of the court was delivered by Harvey, J.: The Morton Salt Company, having paid income taxes for the years 1933 to 1936, inclusive, filed with the state tax commission a claim, and an amended claim, for a refund of parts of the taxes paid. These claims were heard by the tax commission and denied. The taxpayer appealed to the district court, where judgment was rendered for respondent, and it has appealed to this court. In the trial court the facts were stipulated. We state or quote so much of the stipulation as is pertinent to this appeal, as follows: The Morton Salt Company is an Illinois corporation, with its principal office in Chicago, and is duly authorized to transact business in this state. It filed income-tax returns and paid the taxes shown thereby for the years 1933, 1934, 1935 and 1936. “Prior to and at all times since January 1, 1933, it has been engaged in the business of mining, manufacturing, refining, distributing, buying and selling salt and kindred products in a large number of states. It owned and operated salt wells in Michigan and Kansas and salt wells and salt mines in Texas, and produced salt by solar process in Utah and California; and in conjunction therewith, it owned and operated in each of those states, plants for the manufacturing and refining of salt and kindred products. Through its principal office in Chicago, 111., and through its branch offices in various states and through traveling salesmen it distributed and sold its products throughout a major portion of the United States. In addition, it purchased rock salt from other corporations in Michigan, Louisiana, Kansas and New York and distributed and sold the rock salt thus purchased. All the activities described in this paragraph contributed to the total net income of the Morton Salt Company.” During the time in question the appellant made no local sales in Kansas. During that time it owned and maintained, but did not operate, certain salt wells and equipment at Little River, Kan. It received no income from that property, and the cost incurred in connection with its ownership and maintenance of that property for each of the four years is stated. In its returns for 1933 and 1934 appellant deducted the cost incurred in connection with its ownership and maintenance of its property a,t Little River from income directly allocated to Kansas. These deductions were disallowed by the tax commission, and deficiency assessments for both years were made on December 16, 1935, which deficiencies appellant paid. Because of this action the cost incurred for the maintenance of the Little River property for the years 1935 and 1936 was not deducted in appellant’s income-tax returns for those two years. “In order to expand and perfect its sales organization, the Morton Salt Company, prior to January 1, 1933, acquired all or most of the stock of the Royal Crystal Salt Company, a Utah corporation with its principal place of business in Salt Lake City, Utah, the Mulkey Salt Company, a Michigan corporation with its principal place of business in Detroit, Mich., and the Ruggles & Rademaker Salt Company, a Michigan corporation with its principal place of business in Manistee, Mich. The officers and directors of the Morton Salt Company and of each of the subsidiaries are not identical, each corporation being operated as a separate entity, with its own officers, its own employees and its own books and records. During the years in question, none of the subsidiaries owned any property, made any sales, employed any persons, maintained any officers or transacted any business of any kind whatsoever in Kansas. The salt sold by each subsidiary was purchased from the Morton Salt Company at cost, but none of the sales thus made by the Morton Salt Company to those subsidiaries was made in Kansas. The activities of each of the subsidiaries were confined entirely to selling, none of said subsidiaries owning any salt wells or plants, and none producing any salt. The arrangement described in this paragraph has been followed for a period of several years prior to the passage of any income-tax law in Kansas, and has in no way been varied since the passage of such law.” The total property owned by each of its subsidiaries was stated separately for the years 1934, 1935 and 1936. “The selling expenses of the Morton Salt Company and of the subsidiaries for the years 1934, 1935 and 1936 were as follows: 19 SJ, 19SS 19S6 Morton Salt Company................... $3,668,865.42 Ruggles and Rademaker Salt Company.... 200,075.34 Mulkey Salt Company................... 338,033.71 Royal Crystal Salt Company............. 133,647.59 $3,724,339.92 192,195.42 348,309.79 126,208.10 $3,572,996.32 176,113.56 318,110.04 128,144.94 “From time to time the subsidiaries have declared and paid dividends on their stock held by the Morton Salt Company, and all such dividends paid during the years 1934, 1935 and 1936 have been reported by the Morton Salt Company in its income-tax returns to Kansas for those years, but such dividends have been directly allocated without the state of Kansas.” The net income of the subsidiaries for those years was set out. . “In its income-tax returns for the years 1934, 1935 and 1936 the Morton Salt Company did not include in its apportionable net income the net income of the three subsidiaries. ... On June 26, 1937, a deficiency assessment was made with respect to the years 1934, 1935 and 1936, and the deficiency was paid under protest on July 15, 1937. “In making the deficiency assessment of June 26, 1937, the Kansas state tax commission added to the apportionable net income reported by the Morton Salt Company in its returns for those three years, the net income of the subsidiaries. . . . The Kansas tax commission included the property owned by the subsidiaries in the property ratio employed by the Morton Salt Company in its return for the years 1934, 1935 and 1936 for the' purpose of allocating apportionable net income to Kansas, but the commission did no't include the selling expenses of either the Morton Salt Company or any of the subsidiaries in the expense ratio employed by the Mortor Salt Company in its returns for those three years for the purpose of allocating apportionable net income to Kansas; nor did the commission employ any selling expense ratio in determining said deficiency assessment for any of those three years, separate and apart from the property, expense and sales ratios employed by the Morton Salt Company for the purpose of allocating apportionable net income to Kansas for the three years in question. “All the facts and figures set forth in the income-tax returns filed by the Morton Salt Company for the years 1933 to 1936, inclusive, are true and correct statements of fact, except insofar as it is contended by the Kansas tax commission that the returns do not reflect the net income received from business done in Kansas in the particulars set forth in the deficiency statements of December 16, 1935, and June 26, 1937. “The Morton Salt Company filed a claim for refund under date of October 2, 1937. A hearing on said claim was had before the Kansas tax commission on November 4, 1937. Under date of November 27, 1937, the Morton Salt Company filed an amended claim for refund. On August 8, 1938, the Kansas tax commission denied said claim for refund and said amended claim for refund. “If the theories of the Kansas tax commission in making the deficiency assessments of December 16, 1935, for the years 1933 and 1934 and the deficiency assessment of June 26, 1937, for the years 1934, 1935 and 1936 are correct as a matter of law, then it is agreed that the computations set forth in each of said deficiency statements are correct as a matter of mathematics. If the contentions of the Morton Salt Company, as set forth in its claim for refund and in its amended claim for refund, are correct as a matter of law, then it is agreed that the computations set forth in said claim for refund and said amended claim for refund with respect to the amount due the Morton Salt Company are correct as a matter of mathematics.” Broadly speaking, the claim and amended claim for refund was based upon the contention that the tax commission erroneously included the net income of the three subsidiaries in the apportionable net income of the taxpayer for the years 1934, 1935 and 1936, and, second, erroneously disallowed the cost of maintaining the Little River property as a deduction from income of the taxpayer directly allocated to Kansas. This last claim was divided into two parts, because that item was handled differently for the years 1933 and 1934 than it was for the years 1935 and 1936, but basically involved the same question. Our statutes (G. S. 1935, 79-32036, 79-3209, first sentence, 79-3218 and 79-32196) provide a definite method of computing income rates and of allocating the net income between Kansas and other states of a corporation such as the stipulated facts disclose appellant to be. It is conceded the tax commission made appropriate regulations in harmony with these statutes and that they were in force during the years in question. Appellant quotes G. S. 1935, 79-32196, which reads as follows: “In case of two or more businesses, whether or not incorporated and whether or not organized in Kansas, owned or controlled directly or indirectly by the same interests the tax commission may distribute or allocate the gross income and deductions between or among such businesses or may require returns on a consolidated basis if deemed necessary in order to prevent evasion of taxes and to clearly reflect the income.” (Italics inserted.) Appellant stresses the italicized words in the statute just quoted and argues that before the tax commission can take into consideration a business organized and conducted in another state,, even though it be owned or controlled by a taxpayer of this state, it must find that the foreign state unit had been acquired or created by the Kansas taxpayer for the purpose of evading its Kansas income tax. It is pointed out that by the stipulated facts these three foreign corporations had been acquired by appellant before our income-tax statute was enacted, and since that time the business of appellant and its relation to the three subsidiaries has been identically the same as it was prior to that time. Hence it is argued it cannot be said that these subsidiaries were acquired and controlled by appellant for the purpose of evading income taxes in Kansas. This point lacks merit. Under the statute the tax commission is to consider the income of the business units owned or controlled by a Kansas taxpayer, whether or not incorporated and whether or not organized in Kansas, if it deems such consideration necessary in order to prevent evasion of taxes. The statute does not require a finding that the business units were acquired or controlled for the purpose of evading taxes. Irrespective of the reason or the time they were acquired, the fact the taxpayer handles a part of its business through them is to be considered if it is deemed by the tax commission necessary in order to prevent evasion of taxes. Appellant contends the action of the state tax commission in adding to appellant’s apportionable net income the net income of its three subsidiaries violated the income-tax statutes of this state and also violated the due-process clause of the fourteenth amendment of the federal constitution. In the argument it is pointed out that the three subsidiaries are foreign corporations; that none of them made any sales, owned any property, maintained any office, or employed any persons in Kansas during the tax years in question. It is argued that it is apparent on the face of this statement that the income of those corporations should not be taken into consideration in determining appellant’s income taxable in this state. This argument overlooks the facts that the subsidiary corporations are wholly owned by appellant; that their entire business is selling products produced by appellant, and sold by appellant to them at cost of manufacture; that they were acquired by appellant for the purpose of facilitating the sale of its products; that the earnings of the corporations are paid to appellant. Appellant sells some of its products to wholesalers, jobbers and others. For the years in question its sales in that way exceeded the combined sales made by the subsidiaries; hence, selling to the subsidiaries at cost, having them conduct an exclusive selling business and receiving the net profits from those selling activities, was only a part of the plan of appellant in selling its products. Appellant in its brief says: “Appellant and the commission agree that the major portion of appellant’s net income is realized from a unitary salt business, and that the only method of allocating that operating net income between Kansas and the other states is by the employment of an arbitrary allocation formula.” In support of its contention that, considering the net income of its three subsidiaries in determining appellant’s net income and determining the portion which should be allocated to this state, the action of the tax commission was not in harmony with our statute, appellant cites People, ex rel. Studebaker Corp., v. Gilchrist, 244 N. Y. 114, 155 N. E. 68; Curtis Companies, Inc., v. Tax Commission, 214 Wis. 85, 251 N. W. 497; Com’r of Corpus, &c., v. J. G. McCrory Co., 280 Mass. 273, 182 N. E. 481, and Palmolive Co. v. Conway, 43 F. 2d 226, 56 F. 2d 83; cert. denied, 287 U. S. 601. In the New York case a New York corporation was wholly owned by a foreign corporation. The contract between the parent corporation and its New York subsidiary was so written that the subsidiary could make no profit. In computing the income tax for the New York corporation the tax commission took into consideration the earnings of the nonresident parent corporation. The court held that could not be done under the statute applicable when the assessment was made. (Tax Laws, as amended by Laws 1922, ch. 507.) This statute was amended in 1925 (Laws 1925, ch. 322) so as to read, in part: “Any corporation liable to report under this article and owned or controlled, either directly or indirectly, by another corporation may be required to make a report consolidated with the owning company. . . .” People, ex rel. Federal Motor Truck Co., v. Lynch, 264 N. Y. 679, 101 N. E. 623 (1934), arose under this amendment. There a New York subsidiary was owned by a Michigan corporation. The state tax commission considered the combined net income in making its assessment. The taxpayer appealed. The ruling was affirmed. The court of appeals held: “Franchise taxes properly assessed upon subsidiary of foreign corporation on basis of combined net income and combined segregated assets of parent corporation and its subsidiaries.” In the Wisconsin and Massachusetts cases the business t-ransactions between the parent corporation and its subsidiary were conducted on a basis which made a separate, fair profit to each. Because of this the court held under the particular statute applicable that for the purpose of computing income' tax the corporations of the state should be treated separately and not both of them treated as unitary business. We have no such situation here. Appellant makes no profit from the manufactured product sold to its subsidiaries; it sells to them at cost. The result is that it siphons out of this state its own profits for its manufacturing business in this state into its foreign state subsidiaries and collects that profit through the dividends declared to it by such subsidiaries. The two opinions in the Palmolive Company case disclose the formation of numerous corporate entities designed for the purpose of enabling the original corporation to evade income taxes in Wisconsin. So far as these corporations had anything to do with the manufacture, distribution and sale of products the court treated all of them as a unitary business, disregarding corporate forms. Even agreements between the manufacturing company and the selling companies on the cost of manufacture, plus three-percent profit for certain years and plus a six-percent profit for certain other years, was disregarded as inadequate. Among the many corporations formed was one that dealt solely with advertising, and because of the nature of its business it was not included within the group of corporations treated as a unitary business. There is nothing in any of these cases that would require or justify a holding that the tax commission erred in treating appellant and its three foreign state subsidiaries as conducting a unitary business. Neither can the method of computing this tax be said to be in violation of the due-process clause of the fourteenth amendment to the federal constitution. (Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 65 L. Ed. 165, 41 S. Ct. 45; Bass, Etc., Ltd., v. Tax Comm., 266 U. S. 271, 69 L. Ed. 282, 45 S. Ct. 82; Hans Rees’ Sons v. N. Carolina, 283 U. S. 123, 75 L. Ed. 879 [and annotation], 51 S. Ct. 385.) In this connection appellant makes the further contention that the method of allocation used by the tax commission was improper. We find in the record no real basis for this contention. The tax commission followed our statute. (G. S. 1935, 79-3218.) There is nothing inherently wrong with this method of computing the allocation. (See cases from U. S. Sup. Ct. above cited.) There was no showing by evidence in this case that the method used produced an inequitable result. The trial court found that the tax commission “did not act unreasonably and arbitrarily in its application of the statutory formula in determining the net income of appellant allocable to Kansas for income-tax purposes.” We find no reason to disturb this finding. In making its income-tax returns for the years 1933 and 1934 appellant asked that the costs incident to the maintenance of its Little River, Kan., idle plant should be allocated directly to Kansas income. The tax commission declined to take that view, held that the costs of maintenance of that plant should be treated as a part of the unitary cost of appellant in the conduct of its business, and made a deficiency assessment. This was paid by appellant. In making its income-tax returns for the years 1935 and 1936 it reported the costs of the maintenance of its Little River, Kan., property as a part of the unitary cost of the conduct of its business and paid the tax shown to be due by such return. However, when appellant made its claim for refund, October 2, 1937, and its amended claim for refund, November 27, 1937, these included a claim that for each of the four years the costs of the maintenance of the Little River plant should be allocated directly to its Kansas business, and the amount sought to be recovered and the method by which it was computed were set out in the claim and the amended claim for refund. Since the tax commission has raised no question about it, we pass by the question of the delay of appellant in testing the ruling of the tax commission and go directly to the question of whether its ruling was correct. Under the stipulated facts appellant is engaged in the unitary business of manufacturing, distributing and selling salt and its allied products in most of the states of the Union. It has salt-producing plants of varied types in many states. Naturally, which of these is operated, or which one or more of them may be closed down for a time, is a question which would be determined by appellant in its unitary operation. Two of these plants for the production of salt are located in Kansas and are an ■integral part of appellant’s salt business. The income or expense incurred in connection with such plants constitutes but a part of the income and expenses of appellant’s unitary business. G. S. 1935, 79-3218, does not provide specifically for the allocation of this particular type of cost as a nonunitary item. To allocate directly either the income or the expense of such plant, simply because one of them is for a time idle, under a different formula than the remaining income and expenses of the unitary business of appellant would not be consistent with the recognized principle of apportionment. (See Underwood Typewriter Co. v. Chamberlain, supra; Bass, Etc., Ltd., v. Tax Comm., supra; Kent-Coffey Mfg. Co. v. Maxwell, 291 U. S. 642, 78 L. Ed. 1040, 54 S. Ct. 437, affirming 204 N. C. 365, 168 S. E. 397; International Elevator Co. v. Thoresen, 58 N. D. 776, 228 N. W. 192, and Turco Paint & Varnish Co. v. Kalodner et al., 320 Pa. 421, 184 Atl. 37.) With respect to this the trial court found: “That the order of the Kansas state tax commission appealed from does not operate unreasonably and arbitrarily in apportioning appellant’s expense of maintenance of the Little River property as a unitary item allocable to appellant’s unitary income wherever produced.” In view of our statute above cited and the stipulated facts, we are unable to find any reason to disturb the finding of the trial court in this respect. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Wedell, J.: This action, in two counts, was instituted against the administrator of the estate of John Sheridan, deceased. In the first count damages were sought in the sum of $31,500, for the breach of a purported written contract between the plaintiff and John Sheridan, deceased. In the second count the same money judgment was sought on a quantum meruit basis for housekeeping and nursing services alleged to have been rendered between December 1, 1927, and the death of Sheridan on February 19,1937. Touching the first count, it is sufficient to note that plaintiff testified she signed John Sheridan’s name to the contract at his request and in his presence. A special finding of the jury, which is the only special finding in the case, discloses the jury disbelieved that testimony and plaintiff concedes that finding eliminates the first count. On the second count the jury allowed plaintiff $1,300, plus interest from the date of Sheridan’s death. Plaintiff owed Sheridan a note in the sum of $600 with interest at the rate of seven percent per annum, dated November 19, 1936, upon which there was due at the time of trial $684. Upon stipulation the court instructed the jury to deduct that amount from its verdict, if any, rendered in favor of plaintiff. The jury deducted the amount of the note and returned a verdict for a balance on the second count in the sum of $752. Plaintiff contends the court erred first, in overruling her motion for judgment'in an increased amount notwithstanding the verdict, the amount not being specified in the motion, and second, in overruling her motion for a new trial. The first motion was as follows: “Comes now the claimant, Helen E. Manhardt, and moves the court for judgment notwithstanding the verdict in an increased amount to be fixed and determined by the court, for the reason that it affirmatively appears from the undisputed and uncontradicted evidence in the case that the verdict returned by the jury is wholly inadequate to compensate her for the services rendered to the deceased and for the further reason that it affirmatively appears from the record that the jury disregarded the evidence and returned a verdict in the arbitrary sum and amount.” (Italics inserted.) In support of that motion it is argued the correct minimum amount to which plaintiff was entitled is ascertainable by this court from the undisputed evidence. On oral argument before this court it was conceded the trial court probably was not required to and could not properly have rendered a judgment upon that motion, but that this court has authority under the provisions of G. S. 1935, 60-3317, to render such judgment as plaintiff is entitled to upon the record. The substance of the motion for a new trial, as argued here, is that the district court should not have approved the verdict for the reason that it is not supported by, but is contrary to, the undisputed evidence. The trial court in a memorandum opinion analyzed the issues and the evidence. In view of the fact that a trial court is required to approve or disapprove a verdict, the memorandum opinion is especially helpful. It reads: “As the result of a jury trial, the jury brought in a verdict for claimant for $752, which was, as the jury explained in their verdict, $1,300 plus interest to date less a note for $600. ' “This claim was presented in two causes of action, the first based on a written contract in which the deceased agreed to deed to claimant certain real estate in exchange for her taking care of him the balance of his life. The real estate was valued at approximately $31,500 and claimant brought her action for that amount of money. “The second cause of action was based on quantum meruit for her services from December, 1927, to the day of deceased’s death, February 19, 1937, and in which she asked judgment for the same amount, $31,500. “The defense was a denial of the contract and payment in full for all services rendered. “Special findings were submitted to the jury at the request of the claimant, only one of which is material: ‘Do you find from the evidence that Helen E. Manhardt signed John Sheridan’s name to the written contract of December 1, 1937, Exhibit No. 435, in his presence?’ The jury answered, ‘No.’ That answer effectively disposed of any claim based on a written contract. If there was a verbal contract it must be found to exist by reason of the facts and circumstances rather than by direct testimony, as the testimony from the witnesses alone would hardly sustain such a finding. “Claimant worked for John Sheridan, the deceased, off and on from December 1, 1927, until the day of his death, February 19', 1937. During that time she performed all the duties required of her, part of the time those of a trained nurse, when he was sick or drunk and part of the time those of an ordinary housekeeper. She was not with him all of the time during those nine years, and may have been on vacations, and unemployed as much as four or five months, according to her testimony, but judging from circumstances and other evidence, the time was much longer than that, possibly as much as ten or twelve months. Claimant was not very definite as to the number of weeks or months she actually worked and without something to refresh her recollection which she did not seem to have, she could not be. “There were 451 exhibits introduced in the case. Among these were the following which the jury sent for after they had retired to deliberate and had them with them in the jury room: The bank statement of John Sheridan with the Kansas State Bank of Newton, from October 20, 1936, until it was closed out March 9, 1937 (Exhibit 433); the bank statement of Helen E. Manhardt with the same bank from December 3, 1931, the day she opened her account until it was closed out on March 24, 1937 (Exhibit 448); 409 paid checks drawn by John Sheridan during his lifetime on this bank account, totaling $21,609.91 (variously numbered exhibits); an analysis (Exhibit 428) of the expenditures made by John Sheridan as shown by these paid checks. “The Sheridan bank statement shows that approximately 840 checks were drawn during this time, which makes it apparent that there were as many paid checks that had not been found by the administrator as he had found. The statement also discloses that there were $38,428.80 in debit items, which leaves the balance represented by these paid checks that are missing at $17,821.99. The analysis of the paid checks that were introduced in evidence (Exhibit 428) discloses that thirty-five checks were found payable to Helen E. Manhardt, in the total sum of $6,630.98, but there were two small items included here, amounting to $25.98, that show on their face they were for purposes other than payment of wages, and should be deducted from any amount represented by checks drawn to Helen E. Manhardt, but this leaves $6,605 paid Miss Man hardt between December 31, 1931, and January 27, 1937, the date of the last check, and all of these checks were cashed by Miss Manhardt. “Claimant admits receiving these checks, but insists the amounts represented by them were for household expenses and not properly chargeable to her as payment for services. “Now let us look at the bank statement of Helen E. Manhardt. This statement shows conclusively that every dollar deposited came from John Sheridan, because every deposit, except one dated December 15, 1936, was made either on the date she received the check from Sheridan or within one or at the most two days thereafter. Apparently she had no other income, yet she did lend money, notably to a Sylvia Glover, she clothed herself, bought an automobile and operated it and certainly spent some money for other things during this period of time. If she had another bank account, nothing was said about it at the trial. Furthermore, the majority of the checks drawn on this bank account were in even dollars, usually a multiple of $5. She produced neither paid checks nor receipted bills showing where this money or any of it had gone for household or living expenses, and made no explanation of her failure to do so. Most of the people from whom groceries and other necessities would be purchased are still around town and could have been subpoenaed as witnesses, but none appeared. That payment stands without explanation other than her word that it was for living and household expenses, and Sheridan’s checks show he paid the rent. These omissions, coupled with some of the balance of her testimony, especially her truly remarkable explanation of the execution of the written contract upon which she based her first cause of action, cast considerable doubt on her veracity. All things considered, the jury is amply sustained by the evidence when it finds that she has been paid $6,605 on account between December 1, 1931, and January 27, 1937. “As stated before, the administrator was able to find but 409 paid checks on the Sheridan bank account, yet 840 debit items appear on that statement. The total of the 409 checks was $21,606.91, so that the total represented by the 431 checks that are missing must have amounted to $17,821.99 disregarding a few items that are bank charges, federal taxes, etc. The total debits shown on the bank statement were $38,428.90. While there is no direct evidence to indicate that plaintiff received any of the checks that are missing, there is every indication of two things from this statement. The deceased was spending money, during the time that he was supposed to have been sick, bed-ridden and requiring the constant care of a nurse, and from the number of small items, it would look as though it were for living expenses. From a number of larger items, $100, $200, $300 and $500, he might have been giving some of this money to claimant. Many of these large items can be accounted for, many cannot, but none were. “The checks that were found payable to plaintiff began December 31, 1931, and are at the rate of approximately $1,200 per year, and there is a strong inference at least that if the checks were available from December 1, 1927, to December 1, 1931, they would show similar payments during that time. Miss Manhardt had all checks that were produced in evidence in her possession, and all deposits that appeared on her bank account were represented by paid Sheridan checks. Whether she might have had other checks no one can say. “Add to these circumstances the testimony of three witnesses, the administrator, J. J. Ediger, Tom Sheridan and Probate Judge Walter Adams that Miss Manhardt stated to them that she had been paid in full up to January 1, preceding the date [death] of John Sheridan, February 19, 1937. Add the further fact that she borrowed $600 from John Sheridan shortly before his death and gave him her note bearing interest for that amount. Had Sheridan been indebted to her at that time, it is quite certain she would not have given him a note, the $600 would have been for wages and not a loan. “With all this evidence, there might be some doubt as to whether claimant had been working under a contract for a stated salary of somewhere around $100 per month and had been paid in full for all her services. “Evidence had been admitted as to what services she had performed for the deceased, and they were many and varied. But, he was not sick all of the ten years, nor was he drunk all of the time, so that there were times, indefinite in extent, when the services of a trained or practical nurse were not necessary. Persons who qualified themselves on the witness stand as knowing what the services of a trained or a practical nurse were worth and were permitted to give their opinions as to such value, such opinions ranging from $30 to $50 per week. How many weeks she worked as a nurse and how many weeks she worked as a housekeeper cannot be determined from the record. One witness, who rented the apartment .occupied by Sheridan and the claimant to them, a housekeeper herself, after detailing the condition of Sheridan at. that time, and the nature of the work claimant was then performing for him, gave as her opinion the services were not worth over $5 a week during the time the two lived in her apartment. “A jury, in determining the question of value of services rendered, is not bound to accept as conclusive opinions given by witnesses respecting such value. While the opinions of expert witnesses who are familiar with the character of the employment and the compensation usually paid for services of like kind and nature are entitled to great weight, such opinions are only to be considered in connection with other testimony in the case, in the light of which and its own general knowledge, the jury itself determines the value. “In this case we have several uncertainties: The number of months or weeks services were furnished; the time required as a practical or trained nurse and the time in which the duties were no more than those of a housekeeper; and how much had been paid on account. In view of these uncertainties no jury could be expected to arrive at any very exact amount. This verdict is undoubtedly the result of a comparison of views and compromise, but when finally arrived at seemed to be the independent judgment of each juror and agreed to by the other eleven jurors at the time the jury was polled, and it is the opinion of the court that the verdict is amply sustained by the evidence and the motion for judgment notwithstanding the verdict will be overruled at the next motion day in Harvey county, January 5, 1938. “Neither can the court see any reason for granting a new trial in the case and the motion for new trial will likewise be overruled at the same time.” Plaintiff contends the verdict was inadequate and clearly the result of prejudice and passion. We shall treat those subjects in re verse order. In the first place, the trial court did not concur in the contention the verdict was the result of prejudice and passion. It approved the verdict. One circumstance is sufficient to dispose of the contention of prejudice and passion. Sheridan died on February 19, 1937. There was ample evidence from which the jury might properly have concluded plaintiff had been fully paid for all services rendered to January 1, 1937. The verdict, however, discloses the jury allowed plaintiff somewhat more than the maximum value fixed for her services for the period from January 1, 1937, to Sheridan’s death on February 19, 1937. The jury must have concluded it desired to allow her some additional compensation for the period prior to January 1, 1937. That conduct of the jury alone sufficiently refutes the contention of passion and prejudice. Was the verdict inadequate? It was within the province of the jury to determine what constituted reasonable compensation for the services actually rendered and to determine what amount it would believe, in view of all the circumstances, had actually been paid to her. The trial court instructed the jury upon those subjects. It was instructed the burden of proof was upon the plaintiff to establish to its satisfaction by a preponderance of the evidence that plaintiff had performed the services at the instance and request of the deceased, the value of such services, and that she had not been paid therefor. It was the province of the jury to determine from the indefiniteness and uncertainty of the record the period of time plaintiff had actually worked and just what the character of those services was, whether as housekeeper or as nurse, the value thereof, and whether she had been fully paid, and if not, how much she had been paid. The jury may have believed she had received far more from Sheridan than the limited number of checks she produced indicated. That was its privilege. Epecially in view of her testimony concerning the signing of the so-called contract upon which her first count was based, which testimony the jury entirely disbelieved, it is altogether probable the jury may have disbelieved most of her testimony as to nonpayment as well as her testimony concerning the character of her work and the actual time during which she performed services. The jury must have concluded the amount of the verdict, together with the various amounts it had a right to believe she had received, constituted adequate compensation for the services rendered. In view of the record it is impossible to say the jury was obliged to return a verdict for any definite particular amount as a balance remaining due and unpaid. Nor did plaintiff in her motion for judgment notwithstanding the verdict specify any definite amount which, according to her contention, the record disclosed she must be paid. Obviously the trial court did not err in overruling the motion. Since the trial court did not err in its ruling on that motion, there is nothing on that ruling before this court to review. Plaintiff, however, insists this court has frequently held that under the provisions of G. S. 1935, 60-3317, it has authority to disregard technical errors and irregularities and to render such final judgment as justice requires. (Mitchell v. Derby Oil Co., 117 Kan. 520, 232 Pac. 224; Bolinger v. Giles, 125 Kan. 53, 262 Pac. 1022; Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437; Cox v. Trousdale, 138 Kan. 633, 27 P. 2d 298.) That is true, but the decisions are not in point. The instant case is not one in which the record clearly and necessarily discloses that if plaintiff is entitled to any verdict she is entitled to a verdict in a definite amount. Nor is it a case in which technical errors or irregularities resulted in an erroneous verdict. Upon the record justice does not require this court to render a judgment nor is this court permitted to direct the district court to render a judgment contrary to the verdict. Moreover, any effort by this court to ascertain the exact amount due plaintiff, if anything, would entail an independent accounting, which function' this court does not assume. (City of Oswego v. Condon, 124 Kan. 823, 825, 262 Pac. 542; Farmers State Bank v. Commercial State Bank, 136 Kan. 447, 455, 16 P. 2d 543; Smith v. Derby Oil Co., 147 Kan. 300, 303, 76 Pac. 846; Webster v. Toland, 148 Kan. 36, 40, 79 P. 2d 884.) Furthermore, in order to reach the result plaintiff would have us reach, such an accounting would require this court to accept as true testimony which the jury did not believe, and to set aside a verdict which the trial court properly approved. That this court is not permitted to do. It is next urged, if this court cannot direct the district court to render a judgment in a definite amount, the district court should be directed to grant a retrial upon the single issue of the amount of compensation to which plaintiff is entitled. Since this court has no right or authority to disturb the existing verdict or judgment it cannot direct a retrial of the action upon any issue. The defendant has cross-appealed from the order overruling his demurrer to plaintiff’s evidence. The first count having been eliminated, we need consider the demurrer only as to the second count. Defendant’s contention is that plaintiff failed to prove she had not been paid by the deceased. There was evidence she had not been paid and the court properly submitted the question of payment to 'the jury. The judgment must be affirmed. It is so ordered.

The opinion of the court was delivered by Luckert, J.: This is a Medicaid eligibility case in which the Kansas Department of Social and Rehabilitation Services (SRS) denied the application for benefits filed by Joan Seiker Wilson for her aunt, Regina Brewer (petitioner/appellee). SRS found that Brewer had nonexempt available resources in excess of regulatory limits because she held stocks worth approximately $33,000 in joint tenancy with two nieces, Joan Seiker Wilson and Regina Helle-buyck (defendants/appellees). Brewer inherited the stocks upon her husband’s death in 1991. He had received the stock as a benefit of his employment with Southwestern Bell Telephone Company. In 1994, Brewer added her two nieces, whom she had raised, as joint tenants with rights of survivorship of the stock. In 2001, Brewer sought Merrill Lynch’s assistance in tracking shares she received from stock splits and as a result of various spin-offs and mergers of telecommuni cations companies following the break-up of AT&T. Brewer and her nieces opened an account with Merrill Lynch as joint tenants with rights of survivorship. At the time of the Medicaid application, the stock could not be sold or otherwise disposed of without the consent of each joint tenant. Both of Brewer’s nieces refused to consent to a sale of the stock. After SRS denied Brewer’s application for Medicaid benefits, Brewer requested a fair hearing pursuant to K.S.A. 2003 Supp. 75-3306 and argued that the nature of the parties’ ownership of the stock precluded Brewer from selling it or converting it to cash; therefore, the stock was unavailable to Brewer as a resource. The hearing officer entered an initial order upholding the denial of benefits and ruling that the stock was an available resource. The hearing officer found that Wilson, who holds Brewer’s power of attorney, had not taken reasonable steps to make the stock available, including legal action to force the sale. Brewer timely petitioned for review by the State Appeals Committee, which affirmed the hearing officer’s decision. Brewer then petitioned for judicial review of the agency’s action. The district court reversed SRS’s decision, ruling that Brewer was not obligated to file a lawsuit seeking partition because the cost of such a lawsuit would likely exceed any benefit Brewer would receive as a result and because such a lawsuit was unlikely to succeed. The district court chose not to address Brewer’s additional argument that federal law precludes SRS from considering the stock as an available resource. SRS timely appealed, and the appeal was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c). . Amicus Curiae ManorCare of Kansas, Inc., the nursing home where Brewer currently resides, has filed an amicus curiae brief. That brief contains several appendices which include information about the cost of care, the amount of Brewer’s outstanding balance with ManorCare, and a subsequent application for Medicaid filed by Brewer in November 2003. Because these appendices do not com ply with the requirement of Supreme Court Rule 6.02(f) (2003 Kan. Ct. R. Annot. 35) that an appendix consist of “limited extracts from the record on appeal,” the court will disregard them. See Thompson v. KFB Ins. Co., 252 Kan. 1010, 1015-16, 850 P.2d 773 (1993). On legal issues, the amicus brief generally parallels the arguments Brewer makes in her brief. Standard of Review Because this case involves judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., this court’s standard of review is statutorily defined by K.S.A. 77-621. See Fischer v. Kansas Dept. of SRS, 271 Kan. 167, 175, 21 P.3d 509 (2001). As applicable to this case, the court may grant relief if the agency has erroneously interpreted or applied the law; if the agency action is based on a determination of fact that is not supported by substantial evidence when viewed in light of the record as a whole; or if the agency’s action is unreasonable, arbitrary, or capricious. K.S.A. 77-621(c). This court makes the same review of an agency’s action as does the district court. Miller v. Kansas Dept. of SRS, 275 Kan. 349, 353, 64 P.3d 395 (2003). A rebuttable presumption of validity attaches to an administrative agency’s actions, and the party'challenging the agency’s action bears the burden of proving arbitraiy and capricious conduct. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 965, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002). The appellate court “must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the factfinder. We are to disregard any conflicting evidence or other inferences. [Citation omitted.]” Con-nelly, 271 Kan. at 965. Did SRS Correctly Determine that Petitioner was Ineligible for Medicaid Because of Excess ResourcesP The declared purpose of the Medicaid program under Title XIX of the Social Security Act is to furnish “medical assistance on behalf of . . . disabled individuals, whose income and resources are insufficient to meet the cost of necessary medical services . . . 42 U.S.C. § 1396 (2000). The program is a cooperative administered by the federal government and participating states. Kansas, as well as any state which chooses to participate in the program, must comply with federal statutory requirements. Ussery v. Kansas Dept. of SRS, 258 Kan. 187, Syl. ¶ 1, 899 P.2d 461 (1995). See Harris v. McRae, 448 U.S. 297, 301, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980). 42 U.S.C.A. 1396a(a)(17)(B) (Supp. 2004) provides that a state plan for medical assistance must “include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient.” The statute further limits consideration to such income and resources as would not be disregarded in determining an applicant’s eligibility for other programs, including Supplemental Security Income or SSI. The Kansas Legislature made the plan available to those who have “insufficient income or resources to provide a reasonable subsistence compatible with decency and health” and delegated the specifics of defining eligibility criteria to the Secretary of SRS. K.S.A. 39-709(a)(l). Pursuant to this authority, the Secretary has promulgated regulations specifying eligibility criteria. Among the eligibility requirements is a limitation upon the value of resources which an applicant may own; if the applicant has nonexempt available resources in excess of $2,000, he or she is not eligible for public medical assistance. K.A.R. 30-6-107. Federal regulations define the term “resources,” in pertinent part, as “cash or other liquid assets or any real or personal property that an individual . . . owns and could convert to cash to be used for his support and maintenance. If the individual has the right, authority or power to liquidate the property, or his share of the property, it is considered a resource.” 20 C.F.R. § 416.1201. This definition reflects two critical components: (1) ownership and (2) the power to liquidate. This case focuses upon the second aspect of the definition. Transfer of Assets Under K.A.R. 30-6-56, a “transfer of assets” for less than adequate consideration which occurs within a 3-year “look-back” period will incur Medicaid eligibility penalties if the inclusion of the assets’ value causes the applicant’s resources to exceed the $2,000 limit. In this case, Brewer transferred the stock into joint tenancy ownership with her nieces 7 years before her application for Medicaid, well outside the 3-year time limit. Brewer argues that as a result the stock should not be considered as an available resource. ManorCare’s amicus brief makes a similar argument. To support her argument, Brewer cites § 3258.8 of the Department of Health and Human Services’ (DHHS) Centers for Medicare and Medicaid Services’ (CMS) State Medicaid Manual. The manual “makes available to all State Medicaid agencies . . . informational and procedural material needed by the States to administer the Medicaid program.” CMS State Medicaid Manual, Part 2, Foreword (A). Directives in the manual are “official interpretations of the law and regulations, and, as such, are binding on Medicaid State agencies.” Part 2, Foreword (B.l). Section 3258.8 provides: “[I]f placing another person’s name on the account or asset actually limits the individual’s right to sell or otherwise dispose of the asset (e.g., the addition of another person’s name requires that the person agree to the sale or disposal of the asset where no such agreement was necessary before), such placement constitutes a transfer of assets.” Brewer argues that if she “transferred” the stock in 1994, it must have been unavailable to her in 2001 when she applied for Medicaid. This argument ignores the fact that K.A.R. 30-6-56 defines “transfer of assets” as “any act . . . which 'partially or totally passes the use, control, or ownership of assets of an applicant or recipient to another person.” (Emphasis added.) Under this definition, an applicant may transfer an asset even though it only partially passes out of her control. Thus, there is no reason to automatically deem a transferred asset unavailable. The concepts of transfer and availability of assets are not mutually exclusive. If there remains (1) an ownership interest and (2) the authority or power to liquidate the property or the applicant's share of the property, the applicant’s share of the property is a resource of the applicant regardless of when the partial transfer occurred. This conclusion is also supported by provisions in the Kansas Economic and Employment Support Manual (KEESM): “A transfer of assets is an act, contract, or lease which partially or totally passes the use, control and/or ownership of assets to another person or corporation. Thus, for example, adding additional owners to a deed or title or going from sole ownership to joint tenancy shall be regarded as a transfer. Such partial transfers of real property (such as a home or land) could affect eligibility as the value of the property available to the individual has been decreased through ownership. The value of jointly owned real property is prorated and thus the more owners added to the property, the' less the value considered for eligibility purposes for any one of them. This would not be true for partial transfers of personal property since the full value of jointly owned personal property is still considered available to each owner.” KEESM 5720. No showing or argument has been made that the provisions in KEESM are rules or regulations under K.S.A. 77-415 et seq. KEESM does, however, provide SRS’s interpretation of the applicable statutes and regulations. In interpreting administrative regulations, appellate courts generally defer to an agency’s interpretations of its own regulations. The agency’s interpretation will not be disturbed unless it is clearly erroneous or inconsistent with the regulation. Schmidt v. Kansas Bd. of Technical Professions, 271 Kan. 206, 214, 21 P.3d 542 (2001). In this situation, the interpretation is consistent with the regulation. The partial transfer, even though occurring outside the 3-year look-back period, does not mean that the stock or a portion thereof cannot be considered a “resource” since Brewer maintains an ownership interest. Presumption of Equal Ownership Next, Brewer argues that even if she retained an interest in the stock, her interest was limited to one-third of its value, or approximately $11,000. ManorCare agrees. SRS contends that Brewer’s interest in the stock is its full value of approximately $33,000. The hearing officer, and later the State Appeals Committee, found that SRS was correct in attributing the full value of the stock to Brewer because her nieces had not contributed to the equity.. The administrative decisions were based upon KEESM 5200, which provides: “In situations of joint ownership of resources . . . the full equity value of jointly owned personal property shall (unless otherwise established) be considered in the determination of eligibility.” KEESM 5200, section 6. Since the stock had been owned solely by Brewer before she added her nieces as owners, the hearing officer found that Brewer s equity value equaled the full value of the stock holdings, and the Appeals Committee agreed. However, the district court found that, because joint tenants are presumed to hold property in equal ownership, the value of the stock attributable to Brewer was approximately $11,000. As stated in Walnut Valley State Bank v. Stovall, 223 Kan. 459, Syl. ¶ 2,574 P.2d 1382 (1978), “[tjhere is a rebuttable presumption of equal ownership between tenants of joint tenancy property.” Although the hearing officer did not discuss the presumption of equal ownership, SRS argues the presumption of equal ownership is rebutted by any contrary evidence, including evidence that the joint tenants made unequal contributions. In support of this argument, SRS cites Walnut Valley. In that case, a judgment creditor of a wife attempted to garnish a joint tenancy bank account established by the wife with her spouse. The court held that the creditor could garnish the account, and such garnishment would sever the joint tenancy, leaving husband and wife as tenants in common. 223 Kan. at 464. The Walnut Valley court also concluded that the burden of rebutting the presumption falls on the person attacking the presumption of equal ownership. 223 Kan. at 463. Thus, the wife’s creditor could garnish only one-half of the account unless it could prove that the wife had a greater interest. Or, if the wife could prove that she had less than a one-half interest, the creditor would be limited to that amount. 223 Kan. at 463. “ Tn the absence of proof establishing their contributions toward the deposits the presumption prevails that plaintiffs were equal contributors thereto and, therefore, equal owners.’ ” 223 Kan. at 462-63 (quoting Murphy v. Michigan Trust Co., 221 Mich. 243, 190 N.W. 698 [1922]). Thus, Walnut Valley does support SRS’s argument that the presumption of equal ownership can be rebutted with evidence regarding the owner’s relative contribution to the asset and donative intent. In this case, there is evidence which rebuts the presumption. Brewer was originally the sole owner of the stock and later placed her nieces’ names on the account. Hence, Brewer’s equity contribution is clear. However, the analysis should not focus solely upon equity contribution. As Walnut Valley further explained, tire presumption of equal ownership “is created on the theory of donative intent.” 223 Kan. at 462. The court cited a New Jersey case, Norcross v. 1016 Fifth Avenue Co., Inc., 123 N.J. Eq. 94, 196 A. 446 (1938), for its explanation of the theory of donative intent. Norcross explained that the opening of a joint tenancy account, with all parties agreeing that the monies deposited are to belong to the parties as joint tenants, constitutes prima facie evidence of donative intent. Under such circumstances, the parties have made a valid gift. 123 N.J. Eq. at 98. In this case the evidence regarding Brewer’s donative intent was conflicting. As suggested by SRS, there was evidence that Brewer placed her nieces’ names on the stock account to avoid probate, intended for the funds to be utilized exclusively for her own support during her lifetime, and did not intend for her nieces to access the funds until her death. Also, SRS argues that since the nieces could not sell the stock without Brewer’s consent, it can be inferred that Brewer did not intend a complete gift by adding their names to the stock. On the other hand, there was some evidence that Brewer had placed her nieces’ names on the stock as compensation for the support the nieces had provided over the years. Additionally, Brewer’s inability to sell the stock without the consent of her nieces can also be argued to support an inference that she gave away her rights of sole ownership. With this factual background, we must return to the applicable standard of review which is to determine whether the agency erroneously interpreted or applied the law or whether the agency’s action is based on a determination of fact that is not supported by substantial evidence when viewed in light of the record as a whole. K.S.A. 77-621(c). The district court, in reviewing the agency’s action, did not state the applicable standard of review and apparently substituted its own judgment by finding that the presumption of equal ownership had not been rebutted. The weighing of the evidence against the presumption of equal ownership and a determination of Brewer’s donative intent are issues of fact, and the district court could not simply substitute its judgment for that of the agency. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999). The agency concluded that the full value of the stock was attributable to Brewer because her nieces had not contributed to the equity. Thus, SRS rebutted the presumption of equal ownership by presenting evidence of unequal equity contribution. Further, SRS introduced evidence regarding Brewer’s intent when she added her nieces as joint tenants, presenting testimony that Brewer placed the stock in joint tenancy in order to avoid probate and did not intend for her nieces to use the property until Brewer’s death. Thus, the agency’s conclusion was supported by substantial evidence when viewed in light of the record as a whole. Partition Brewer argues that the stock should not be considered an available resource because of impediments to her ability to liquidate the property. The hearing officer and State Appeals Committee recognized that there was a legal impediment preventing disposal of the stock in that Brewers’ nieces refused to consent to a sale. However, Wilson, as Brewer’s agent pursuant to a power of attorney, has a fiduciary duty to manage her aunt’s affairs, including the pursuit of a legal action to force the sale of the stock. Because Brewer, through Wilson, had not taken reasonable steps to overcome the legal impediment, the stock was considered an available resource. The district court, however, was persuaded that a partition action was unlikely to succeed and that the cost of such an action would likely exceed Brewer s share of the stock, $11,000. Thus, the district court reversed the decision of the State Appeals Committee. K.A.R. 30-6-106(c)(l) provides that an asset otherwise available to an applicant will not be considered an available resource if a legal impediment exists which prevents an applicant from disposing of the asset. However, the applicant must take reasonable steps to overcome the legal impediment unless the cost of pursuing legal action would exceed the value of the resource or such an action would be unlikely to succeed. KEESM 5200, section 3 provides: “a. A resource shall be considered unavailable when there is a legal impediment that precludes the disposal of the resource. Examples of legal impediments would include property which is inaccessible pending the disposition of divorce proceedings, jointly owned property which cannot he disposed of due to the refusal of the other owners to agree to a sale, or inability to obtain clear title. The client shall pursue reasonable steps to overcome the legal impediment unless it is determined that the cost of pursuing legal action would be more than the applicant or recipient would gain or the likelihood of succeeding in the legal action would be unfavorable to the applicant or recipient.” (Emphasis added.) SRS does not dispute that there was a legal impediment to liquidation. However, at each hearing level it was determined that Wilson, as Brewer’s agent through a power of attorney, could file a partition action. K.S.A. 60-1003(a) allows an action for the partition of real or personal property. See Mulsow v. Gerber Energy Corp., 237 Kan. 58, 60, 697 P.2d 1269 (1985) (K.S.A. 60-1003 sets out the procedure to be followed in a partition action but does not create a substantive right to partition). Generally, the right to partition is recognized whenever property is jointly held. Miller v. Miller, 222 Kan. 317, 320, 564 P.2d 524 (1977). However, Brewer argues that she has no right to force a partition sale of the stock because she voluntarily agreed to hold the stock in such a manner that no joint tenant could transfer the stock without the consent of the other joint tenants. In support, she cites Hotchkin v. Hotchkin, 105 N.J. Super. 475, 253 A.2d 184 (1969), for the premise that ownership of stock in a manner that prevents its sale without unanimous consent of the joint tenants prevents one joint tenant from seeking partition of the stock. In Hotchkin, ex-wife brought a partition suit against ex-husband regarding various jointly held securities. During divorce proceedings, the parties had previously entered into a written separation agreement containing a provision stating that all jointly owned stocks and securities could be sold or traded only upon mutual consent of the parties. The court ruled that, under this provision, the parties had impliedly agreed not to partition the securities; thus, it denied the ex-wife’s claim for partition. 105 N.J. Super, at 482. Kansas also recognizes that a cotenant is not entitled to partition where he or she has entered into an agreement not to partition. Gore v. Beren, 254 Kan. 418, 423, 867 P.2d 330 (1994). An agreement not to partition may be implied or expressed. “An agreement not to partition is implied where the purpose of the transaction would be defeated by partition. For instance, an agreement giving cotenants rights of first refusal implies an agreement not to bring a partition action in lieu of a sale to the cotenants.” 254 Kan. 418, Syl. ¶ 3. In Gore, the parties had entered into a real estate contract giving each cotenant a right of first refusal before another cotenant could sell his or her interest. The court found this provision did not expressly waive the right to partition but did impliedly waive the right to partition until there was compliance with the provision giving the right of first refusal. 254 Kan. at 425, 428. The court explained: “Because implied waiver of the right to partition is based on interpretation of a contract or agreement between cotenants, whether an agreement constitutes an implied waiver of the right to partition and the extent of that implied waiver or the condition for restoring the right to partition should be determined on a case-by-case basis. See, e.g., 59A Am. Jur. 2d, Partition § 61; 68 C.J.S., Partition § 44, p. 67. Thus, not every instance where cotenants agree to a preemptive right or right of first refusal provision is automatically deemed to imply waiver of the right to partition. Because the right to partition enjoys a favored status in the law and is ‘based on the equitable doctrine that it is better to have the control of property in one person than in several who may entertain divergent views with respect to its proper control and management,’ [Miller v. Miller, 222 Kan. 317, Syl. ¶ 4, 564 P.2d 524 (1977)], any agreement which purports to waive the right to partition should be strictly construed.” 254 Kan. at 426. In this case, a representative of Merrill Lynch testified that the stock in question cannot be sold or otherwise disposed of without the consent of each joint tenant. Although the record on appeal does not include a copy of an executed agreement containing such a provision, the fact that such a restriction exists is not in dispute. However, what is not clear is whether the restriction was a matter of contract between the tenants or was unilaterally imposed by Merrill Lynch. If it was simply a Merrill Lynch policy that all three joint tenants consent to a sale or transfer of the stock, rather than an. agreement between the joint tenants themselves, this would detract from Brewer s argument that her agreement not to sell the stock without the consent of her nieces could be raised as a defense in a partition action. The cases Brewer cited in her brief all involved some agreement, whether in a divorce settlement agreement or a real estate contract, not to partition. The fact that the stock could not be sold in this case without the consent of all three joint tenants appears less due to any agreement they made and more due to the internal policies of Merrill Lynch. However, at the very least, Brewer has demonstrated that her nieces would have a possible defense to any partition action. Whether the manner in which the stock is held would amount to an implied waiver of the right to partition would need to be determined and would likely be hotly contested. Thus, a partition action would not necessarily be the simple procedure suggested by SRS. With this in mind, Brewer contends that the agency ignored the exceptions for cost and low probability of success in finding that she was ineligible for Medicaid because she had not taken legal action to force a sale of the stock. As a result, Brewer argues the agency erroneously interpreted or applied K.A.R. 30-6-106(c)(l) in denying her application for benefits. SRS counters that Brewer did not establish her donative intent or present evidence or even argument at the hearing on which the determination of cost of litigation could be based. Generally, the applicant has the burden of proof to establish eligibility for Medicaid. Fischer v. Kansas Dept. of SRS, 271 Kan. 167, 176-77, 21 P.3d 509 (2001). K.A.R. 30-6-39 states that applicants shall “[s]upply, insofar as the applicant or recipient is able, information essential to the establishment of eligibility.” Furthermore, the administrative hearing officer s “[fjindings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding.” K.S.A. 77-526(d). Despite this, nothing was presented at the administrative hearing regarding why a partition was not filed, anticipated difficulties with litigation, or potential costs of the action. Under the KJRA, the court conducting judicial review of the agency action is limited in its review of facts by K.S.A. 77-618, which provides that “[j]udicial review of disputed issues of fact shall be confined to the agency record for judicial review.” Some exceptions are provided for, but none apply in this case. See K.S.A. 77-619. In this case, the district court made findings regarding the attorney fees, based upon its own knowledge and expertise, and evaluated the costs and anticipated fees of such an action. In essence, the district court acted as an expert on attorney fees, which it is allowed to do when acting as a factfinder. However, it is error to do so when conducting a judicial review of agency action. In reviewing the facts which were presented to the agency, the district court is to determine if there was substantial evidence to support the agency’s findings. Conflicting evidence or other findings are to be disregarded. See Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964-65, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002). In this case, the district court reweighed the evidence and determined that the costs should be taken from one-third of the stock value, rather than the entire value which the agency had determined was available to Brewer. Brewer failed to meet her burden to establish that the cost of the partition action would exhaust her equitable interest in the stock value. Federal Law Both Brewer and ManorCare argue that the provisions of K.A.R. 30-6-106(c)(l) are contrary to controlling federal authority which prohibits states from considering resources that are not available to applicants under standards set by the Secretary of Health and Human Services or that would not be considered in connection with an application for social security income. Brewer also cites the Social Security Administration’s Program Operations Manual System (POMS) in support of her argument. Under POMS SI 01120.010, “[w]hen there is a legal bar to sale of property (e.g., if a co-owner legally blocks sale of jointly-owned property), we do not require an individual to undertake litigation in order to accomplish sale or access.” POMS also gives two examples of situations where property would not be considered a resource. In one example, an applicant and his brother own stock as joint tenants subject to a binding agreement that one will not sell without consent of the other. Under these circumstances, unless the brother agrees to sell, the applicant’s share is not considered a resource. In another example, an applicant and her estranged spouse own a cottage which the applicant could not sell unless she took legal action to dissolve her marriage. Because the rules do not require litigation to obtain access to resources, the property is not considered a resource. First, we note that POMS guidelines are not regulations: “While Program Operations Manual System (POMS) guidelines do not have the force and effect of law, they do have some value, effect, and persuasive force “POMS is essentially a set of detailed guidelines relating to interpretations and procedures to be followed by the staff of the SSA. It is at least a clear indication of the agency’s intended application of the governing law and its views on what that law means.” 70A Am. Jur. 2d, Social Security and Medicare § 17. The “standards” referred to by 42 U.S.C.A. 1396a(a)(17)(B) are only the regulations adopted by the Secretary and not the rules set out in POMS. Kansas regulations cannot conflict with the federal regulations. However, SSA policy interpretations do not have the force and effect of a statute or regulation by the federal agency. See Anderson v. Iowa Depart. of Human Serv., 368 N.W.2d 104, 108 (Iowa 1985). In this case, K.A.R. 30-6-106(c)(l) is a reasonable standard for determining Medicaid eligibility and does not conflict with a federal statute or regulation. Reversed.

The opinion of the court was delivered by Nuss, J.: Petitioners, who are inmates at Lansing Correctional Facility (LCF), challenge the constitutionality of two of respondents’ regulations. The first, K.A.R. 44-12-601(q)(l), requires that all inmate purchases of books, newspapers, and periodicals be made through their inmate account. The second, Internal Management Policy and Procedure (IMPP) 11-101, among other things, limits the amount of inmates’ monthly spending. The joint effect is to restrict the amount of subscriptions to newspapers and magazines the inmates receive — through monetarily limiting their direct purchases and through completely banning their receipt of gift subscriptions purchased by those outside LCF. The district court upheld the regulations, finding they were reasonably related to inmate rehabilitation, a valid penological interest of the Kansas Department of Corrections (DOC). In a split decision, the Court of Appeals held that the regulations were unconstitutional. Rice v. State, 31 Kan. App. 2d 964, 76 P.3d 1048 (2003). This court granted the State’s petition for review to consider the sole issue of whether these regulations violate petitioners’ rights under the First Amendment to the United States Constitution and similar rights under Section 11 of the Kansas Constitution Bill of Rights. We hold that the regulations are reasonably related to valid penological interests of DOC and are therefore constitutional. Accordingly, we reverse the Court of Appeals and affirm the district court. FACTS: Petitioners filed a petition in district court pursuant to K.S.A. 60-901 et seq., seeking to enjoin DOC from denying them gift subscriptions to newspapers and magazines. To justify their actions, the respondents DOC, Warden David McKune, and LCF’s risk manager William Cummings relied upon K.A.R. 44-12-601 and IMPP 11-101. K.A.R. 44-12-601 concerns the subject of inmate mail. Subsection (q)(l) provides in relevant part: “Any inmate may receive books, newspapers, and periodicals, except for those inmates assigned to the reception and diagnostic unit for evaluation purposes. All books, newspapers, or periodicals shall be purchased through special purchase orders. Only books, newspapers, or periodicals received directly from a publisher or a vendor shall be accepted.” (Emphasis added.) For an inmate to receive a newspaper or magazine, a copy of DOC’s publication form must be completed and a special purchase order (SPO) must be sent to the LCF business office. Funds are then withdrawn from the inmate’s LCF account — the only banking account an inmate is allowed to use. The mailroom notes this fact on its database, and then delivers the publication which has been directly mailed by the publisher to LCF in the inmate’s name. An inmate who is not on the authorized fist of those who have purchased periodicals, but who nevertheless receives a publication, is notified and given 7 days to complete the proper paperwork or else the publication is discarded. All items purchased for an inmate’s use must be purchased through his LCF inmate account. As a result, the requirement of purchasing through SPO’s essentially prevents an inmate from re ceiving gift subscriptions or publications directly purchased by those outside LCF and then mailed by the publisher to LCF. Moreover, K.A.R. 44-12-601(b) provides that inmates must comply with all mail procedures established by order of the warden and that “circumventing or attempting to circumvent mail procedures or restrictions by any means” is prohibited. DOC also issues interpretations of and guidance regarding Kansas statutes and regulations in what is known as an Internal Management Policy and Procedure Manual. IMPP 11-101 addresses DOC’s “Offender Privileges and Incentives” and was developed pursuant to DOC’s stated policy to “implement a comprehensive system of earnable offender privileges, which will provide an effective means of managing the offender population and reinforcing constructive behavioral changes in offenders.” As described by the Court of Appeals, 31 Kan. App. 2d at 966: “IMPP 11-101 sets forth a comprehensive system of ‘Earnable Privileges’ and ‘Incentive Levels’ under which inmates can progress to increasing benefits by avoiding disciplinary actions and criminal behavior and by participating in programs or work assignments. ‘Earnable Privileges’ include ‘[u]se of outside funds.’ “Section VI of IMPP 11-101 speaks to ‘Limitation[s] on Use of Incoming and Outgoing Funds’: ‘A. For inmates assigned to Intake Level, outgoing funds shall be limited to fees for legal services, and for inmates on Level I, no outgoing funds may be used to purchase books- . . . or . . . newspaper or magazine subscriptions. ‘B. Except as provided below, there shall be a $30.00 limit on outgoing funds. 1. Inmates may exceed the $30.00 limit, if necessary, for the purchase [of] a primary religious text if the cost of the text is greater than that amount. 2. The $30.00 limit shall not apply to payments to the following: a. The court for verified restitution and/or court costs; b. Verified fees payable to an attorney for legal services; c. Verified child support payments; d. Specialized fees, expenses as.authorized by the warden or designee; and, (1) As possible, approval for such payments shall be payable to the vendor or service provider only. e. Purchases of approved handicraft materials/supplies. ‘C. Upon recommendation of the unit team and approval of the warden or des-ignee, offenders assigned to private industry (minimum wage) or those who receive government benefits may be authorized, on an individual basis, to send out funds in excess of $30.00 per pay period limit. ‘D. Inmates on Incentive Level II or Incentive Level III are authorized to maintain one (1) newspaper subscription, and may exceed the $30.00 limit for outgoing funds in order to do so. 1. The expense for the newspaper subscription shall be included in the $30.00 limit. 2. Such an exception shall be allowed no more than one (1) time per every three (3)-month period/ ” As noted, the effect of IMPP 11-101(VI), coupled with K.A.R. 44-12-601, is to restrict the amount of subscriptions to newspapers and magazines the inmates receive — through monetarily limiting their direct purchases and through completely banning their receipt of gift subscriptions purchased by those outside LCF. Inmates are also allowed to receive outside funds, such as a money order, certified check, or a cashier’s check, but cannot receive a personal check or cash. There are no restrictions on who the sender of such funds may be or how much money a person may send to an inmate, but as IMPP 11-101(VI) and similar regulations demonstrate, LCF places explicit restrictions on what the inmate may use the funds for and in what amounts. The mailroom sends the funds to the business office, which deposits the funds in the inmate’s account. Margie Phelps, who formerly served as the Deputy Warden of Support Services at LCF, oversaw the mail process for the facility. She issued three DOC interdepartmental memoranda to all inmates regarding the receipt of periodicals. The first memo, dated February 7, 2001, stated in part: “Effective March 19, 2001 ‘Periodicals ‘In order to receive a magazine or newspaper, 1. You must purchase the periodical through the Business Office. The mailroom will keep a list from SPO’s of all inmates who have made purchases through the Business Office. When you send your SPO to the business office be certain the name of the periodical is on the SPO. Otherwise, you will not be on the list of inmates who have purchased periodicals, and your magazine or newspaper will not be processed. Also, you must complete the attached form and include it with your SPO when purchasing a periodical. 2. The magazine or newspaper must have a label with your name on it. ‘All periodicals received after March 19 that do not comply with these requirements will be sent to the visiting rooms (if appropriate) or destroyed.’ ” Phelps testified that she heard from over a hundred inmates in response to her memo and discussed with them the reasoning behind the policy, the past inconsistent enforcement of the policy, and the inmates’ rights under the First Amendment. Phelps’ second memo is dated February 20, 2001, and is quoted in the district court’s memorandum decision, though it is not part of the record on appeal. It was prepared in response to the inmates’ requests and states: “IMPP 11-101, regarding incentive level system, states: ‘Inmates on Incentive Level II or Incentive Level III are authorized to maintain one (1) newspaper subscription, and may exceed the $30.00 limit for outgoing funds in order to do so. T. The expense for the newspaper subscriptions shall be included in the $30.00 limit. ‘2. Such an exception shall be allowed no more than one (1) time per eveiy three (3) month period.’ “Policy requires that all periodicals be purchased through the business office by an SPO. It does not allow for persons outside the facility to purchase and send in subscriptions to periodicals. If you are on Incentive Level II or III you may exceed the $30 limit once every three months for newspapers only. Beyond this, your periodical purchases must be within the $30 per month limit. “This means if you are currently receiving subscriptions that you did not pay for through tire business office, you need to divert them, because after the effective date stated in the memo those will not be sent in. It also means in the future only those periodicals purchased by SPO, clearly identified as periodicals through the periodical cover sheet and on the SPO, will be processed through the mail-room. “If you have already purchased a periodical through the business office by SPO, you should already be in the system approved for this item. It is important that you make it clear in your paperwork what periodicals you are ordering. We are going through the records at this time and making a list of those inmates who have periodical purchases on file. All inmates and periodicals on that list will be sent through after the effective date. “This policy is not new, and has been in place for some time. My recent memo simply clarified what part the mailroom has in enforcing the policy. Also, since it appeared some inmates were not following the policy, we gave reasonable notice of the fact that this needs to be corrected. “If you are receiving a free religious periodical, so long as it is not coming in by bulk mail, we will continue to process that periodical. Any item that is free and comes in by bulk mail will not be sent in, because departmental policy disallows processing bulk mail items.” Approximately 3 weeks after Phelps’ first memo, and 10 days after her second, she distributed her third memo, dated March 2, 2001, which stated in part: “On 2/7/01 you received a memo indicating that it would be necessary to comply with IMPP 11,101 [sic] concerning all periodicals and newspapers. “Since this memo was issued, we have had dialogue with inmates and unit team staff. From this dialogue it became clear that there is confusion on both sides about how this policy is to be applied. “Accordingly, to accommodate this uncertainty, the facility is going to permit each inmate on privilege/incentive levels II and III a one-time only grandfathering opportunity for one year. This means if you are currently receiving periodicals that you did not purchase through the business office, you may select one, and continue to receive it for no more than 12 months from today’s date. . . . “Please be assured we have reviewed this matter carefully. We appreciate the concerns some of you have raised about the First and Fourteenth Amendment rights you have to reading materials. However, it is important to realize that the department and facility have an overriding interest in the implementation of an effective privileges and incentives program, and these limits on periodicals are crucial to that program. There is no absolute prohibition on periodicals, so we believe this is a proper balancing of everyone’s legal interests and objectives. “Concerning free publications, please be advised if the publication is received other than by bulk mail, and you have advised us in advance you are receiving this publication, with verification that it is free, you will continue to receive the periodical. Bulk mail items are not approved, and will not be sent to you by the mailroom. “Finally, please be advised that we periodically seek input from the inmates about what periodicals they would like us to purchase for the library. This is another option available, and if you have an appropriate periodical you would like to have available in the library, send me a form 9 for review.” In addition to overseeing the mail facility, Phelps also oversaw the operation of inmate libraries. She testified that she received a significant number of requests for publications in response to her March 2 memo and therefore added suggested periodicals to the library. After talking with the librarian and looking over the library lists, Phelps concluded there were library options available that were unused. Based on the information she was receiving, including feedback from inmates and her own observations, Phelps concluded that the library was meeting the needs of the inmates choosing to use it. An estimated 900 inmates reside in maximum security at LCF. They may access the prison library during two daily periods, one in the morning and one in the afternoon. Six inmates from each of the nine cellhouses are allowed to go during each period, and inmates must choose between using the libraiy and participating in other recreational activities. Inmates must sign up for the library period on a sheet in an open area of the cellhouse. They are not allowed to check out magazines from the libraiy, but are allowed to check out hardback books and some paperback books. As the Court of Appeals found, in response to inmate complaints, libraiy visitation times were adjusted and inmates were encouraged to request specific publications be added to the library's holdings. The deputy warden stated that a review of actual library use revealed inmate sign-up sheets often were not full. An inmate is permitted to have up to 10 magazines and newspapers of his own in his cell at one time. 31 Kan. App. 2d at 968-69. Phelps also testified that based upon her historical analysis of IMPP 11-101, she considered it an incentive and privilege regulation. She stated that the relationship between the SPO process and IMPP 11-101 was to provide some incentives for good behavior. According to her, DOC’s mission is to try to change behavior, to get inmates to make better decisions, be more accountable, and to think through their decisions. Unfortunately, the gift subscriptions were a very easy way to circumvent the incentives and eliminated the receipt of magazines and newspapers as a privilege to be earned. According to Phelps, one of the things inmates could achieve through the incentive program was using a certain amount of money in a certain way. The $30 limit advances prison security goals, i.e., by reducing a practice called strong-arming. She testified that IMPP 11-101 predominantly concerns the behavior of the offender, but she believes that controlling behavior is always a security issue for the prison. David McKune, LCF’s warden, participated in the development of IMPP 11-101 and testified that the purpose of the regulation was to develop a system that would lead to better inmate behavior and better inmate accountability and responsibility. LCF’s desire was to accomplish this through a system of rewards and incentives rather than a system of negative sanctions. He testified that improved inmate behavior would result in a safer environment for the staff and the other inmates. William Cummings, LCF’s risk manager and the DOC Secretary’s designee for review of inmate grievances, testified that one penological objective of the ban on gift subscriptions is to require inmates to meet their financial obligations, such as court fees, restitution for damages, and child support obligations. Cummings further testified about a second penological objective contained in the regulation: security. He stated that the overriding rationale of IMPP 11-101, however, concerns yet another penological objective: to encourage appropriate inmate behavior and good decision-making processes. Cummings gave one example purporting to touch all three objectives. An inmate engaged in dealing and trading with another inmate, which is prohibited under the inmate rule book. The first inmate had a. negative balance in his inmate account of nearly $2,500 for fines, fees, restitution, and postage loans. He therefore arranged for his family and friends to send the second inmate $80 in money orders and gift subscriptions to the Kansas City Star and FHM magazine through that inmate’s account, with the apparent agreement that the second inmate would then forward “his” property to him. The second inmate failed to do so, even after demands by the first. The first inmate then made threats toward the second inmate who had failed to carry out his part of the bargain. Cummings testified that if the first inmate’s friends and family had sent the $80 directly to the first inmate’s account, the prison would have used the money to help pay off the negative balance. The first inmate’s written grievance to the prison administrators stated in relevant part as follows: “ ‘[S]ince you two cocksuckers love to fuck with me, here’s an open invitation. On or about 9/6/01, inmate in B1 received a $10 money order from Oklahoma on my behalf and on 9/7/01 he received $70 from a visitor in South Carolina on my behalf. He also received a Kansas City Star newspaper on my behalf. “. . . As you can see therefrom, the money on his prison account is actually mine. . . . Please seize the $80 on his account before he spends any of it. . . I’d rather you cocksuckers seize my family money and confiscate my newspaper and charge me for rule violations than for this sissy to spend a penny of my family’s money meant for me or him reading my newspapers and gloating over how he got over on someone again. I am simply another of his many this snake has gotten. “You should move one of us without any delay. He has a pacemaker and I will do my utmost to cause him great distress and panic attacks. I hope for him to have a heart attack and die, but then if you both refuse to move one of us out of B1 and he does keel over, your deliberate indifference make you equally hable. “Spare yourselves from interviewing me. Go ahead and take my money and newspaper. I’ll deal with him in my own special manner. Excuse me. In my own talented ways. You can return the $80 to my 80-year-old mother or stick it up your asses 50/S0, and of course if he spends a penny of this money and you allow it, I’ll sue you for not doing your God damn duties.” According to Cummings, since inmates are not allowed to possess currency, they use cigarettes, canteen items, and magazines in a barter system. Debts can be incurred from illegal activities such as gambling, prostitution, extortion, and drugs. He testified that one of the first things LCF authorities tell inmates is to not get into debt. It multiplies, the lender sells the debt to another inmate, and that inmate then attempts to collect. He testified that dealing and trading is probably one of the things that gets inmates into trouble the most. Roger Bonner, chief investigator at LCF, supervises the Intelligence and Investigations unit, sometimes called the “I and I.” He testified that money tracking is a daily part of the investigations process and that dealing and trading constitutes roughly 50 percent of all disciplinary reports at LCF. The “transparency” of inmate transactions, particularly those involving magazines and newspapers, that results from the joint implementation of IMPP 11-101 and K.A.R. 44-12-601 gives investigators an opportunity to verify a complaint. He testified that magazines are third behind cigarettes and electronics in disciplinary reports regarding dealing and trading, constituting 25 to 30% of the cases. Most of the problems in magazine dealing and trading reports concern periodicals of an “adult” nature. The parties stipulated to the district court that petitioners’ family members and friends paid for magazine or newspaper subscrip tions in the petitioners’ names. These gift subscriptions were sent directly to LCF for delivery by the publisher and addressed to the petitioners. Petitioners did not pay any portion of these gift subscriptions from their inmate accounts and did not present SPO’s to LCF’s business office in connection with these gift subscriptions. They did not receive delivery of these gift subscriptions at LCF. The Court of Appeals summarized the respondents’ facts and position as follows at 31 Kan. App. 2d at 969: “Given the library alternative, the ability of Level II and III inmates to spend up to $30 per month to purchase periodicals, the possibility of spending more than that amount for a newspaper every 3 months, and the grandfathering of one gift publication for up to 12 months, the respondents argued that petitioners asserted a ‘quite narrow’ interest: ‘the “right” to receive magazines and newspapers of the inmate’s choice, without permitting fiscal transparency.’ ” Before this court, respondents further add the ability of an inmate to petition the warden for permission to exceed the $30 limit per month. See IMP ll-101(VI)(B)(2)(d). On the other hand, testimony from a number of the petitioners revealed the following facts: Petitioner Kent Vanderveen has a job during the day and participates in arts and crafts in the evening. He has ordered craft items costing $150 during several months. He currently receives USA Today newspaper and the magazines Men’s Journal and Smart Money. However, he has never requested permission of the warden to exceed the $30 limit to order books, magazines, or periodicals of any kind. Vanderveen has seen inmates sign the library list for themselves and a friend, and has seen names scratched off the list and another inmate’s name added. Vanderveen estimated that the library lists are filled 90% of the time. The library has magazines and newspapers, but not a wide variety. He testified that the library seems to carry fewer periodicals than it did a year ago. He also testified that pages are often missing from the library’s magazines and newspapers. Petitioner Jerry Rice currently receives Closeout News, the Kansas City Star newspaper, and the magazines County Music Magazine and Popular Mechanics. He testified that he is allowed to go to the library during the day shift. In the cellhouse where Rice lives, inmates rotate days based on whether they are in even-or odd-numbered cells. He has observed that the list is always full and he often cannot get on the library list. Petitioner Calvin Mercer also testified regarding publications he had received before and after the regulations were enforced. ANALYSIS: Standard of Review Throughout the proceedings on the petitioners’ petition filed under K.S.A. 60-901 et. seq., the petition has been treated as one for habeas corpus under K.S.A. 2003 Supp. 60-1501. Petitioners are inmates alleging violations of constitutional rights, a claim that would be proper under 60-1501. See Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997). Because pro se pleadings are to be liberally construed, we too will consider the petition as if it were one for habeas corpus. See State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 (1980). The standard of review for a K.S.A. 2003 Supp. 60-1501 petition is whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Collier v. Nelson, 25 Kan. App. 2d 582, 584, 966 P.2d 1117, rev. denied 266 Kan. 1107 (1998). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. 25 Kan. App. 2d at 584-85. Conclusions of law are subject to de novo review. 25 Kan. App. 2d at 585. As we review the petitioners’ allegations, we are also guided by the following considerations. “ ‘[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 226, 285[, 92 L Ed. 1356, 68 S. Ct. 1049] (1948). The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987). However, convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). “In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). Additionally, the Constitution protects the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). Both the sender and the inmate have fundamental interests in the inmate’s access to the information in published material selected for delivery to him. Woods v. Daggett, 541 F.2d 237, 240 (10th Cir. 1976); see Crofton v. Roe, 170 F.3d 957, 959 (9th Cir. 1999). Here, the communication at issue is between the inmate and the publisher. Five years ago in Pool v. McKune, 267 Kan. 797, 804-05, 987 P.2d 1073 (1999), this court set forth in detail its considerations relevant to the issues in the instant case: “The standard of review is clearly delineated by the Court in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). The Court formulated a standard of review for prisoners’ constitutional claims that was responsive both to the 'policy of judicial restraint,’ 482 U.S. at 85 regarding prisoner complaints and to the protection of constitutional rights. The Court adopted a rational basis test: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’ 482 U.S. at 89. “In determining the reasonableness of a prison regulation, several factors are relevant: (1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional rights; (3) the impact of accommodation of the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regulation or practice. [Turner, 482 U.S. at 89-90.]’ Hayes, 70 F.3d at 1146-47. “The heart of the Turner reasonableness test demands that there be a rational connection between prison action and the legitimate governmental interest put forward to justify it. Thus, the action cannot be sustained where the logical con nection between it and the asserted goal is so remote as to render the policy arbitrary or irrational. 482 U.S. at 89-90. . . . “It is important to point out the reason given by the Court for the adoption of the rational basis test instead of a strict scrutiny test which is generally applied in cases involving a claimed deprivation of a constitutional right. According wide-ranging deference to prison administrators in the adoption and execution of policies relating to prison administration, the Court said: ‘In our view, such a standard is necessary if “prison administrators. . ., and not the courts, [are] to make the difficult judgments concerning institutional operations.” Jones. v. North Carolina Prisoners’ Union, 433 U.S. [119, 128, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977)]. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby “unnecessarily perpetuating] the involvement of the federal courts in affairs of prison administration.” Procunier v. Martinez, 416 U.S. at 407. 482 U.S. at 89. “Thus, our evaluation of the constitutional claims in this appeal must accord great deference to prison administrators in their adoption and execution of policies and practices intended to advance ‘valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security.’ O’Lone v. Estate of Shabazz, 482 U.S. at 348. An inmate’s exercise of constitutional rights must exhibit due regard for the concerns of prison administrators. Hayes v. Marriott, 70 F.3d at 1146.” (Emphasis added.) As Judge Wahl’s dissent pointed out in the instant case before the Court of Appeals, also citing Turner v. Safley, 482 U.S. 78, 84-85, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987): “ ‘ “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” [Citation omitted.] . . . “[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.” [Citation omitted.] Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.’ 482 U.S. at 84-85.” 31 Kan. App. 2d at 974. In light of the foregoing, we will give “great deference to the prison administrators in their adoption and execution of policies and practices intended to advance Valid penological objectives’ ” in this case. Pool v. McKune, 267 Kan. at 805. Against this backdrop, we examine the four Turner factors in light of the respondents’ position in the instant case as stated in their petition for review: “[1] Removing the correctional facility’s involvement in the processing of periodical purchases through the facility inmate banking system by permitting third parties to directly purchase subscriptions from the publisher, creates a barrier between the third party and correctional officials investigating the source and reason for the purchase. [2] Additionally, permitting inmates to have the benefit of items sent to them as a gift when [a] those inmates have lawfully imposed financial obligations in the form of fines, fees, court costs, loans from the state, and restitution; or [b] lack the privilege level to permit their purchasing the periodical [themselves], directly undercuts the motivation on the part of inmates to not incur those obligations, or achieve a higher privilege level. “. . . Processing all purchases through the facility inmate account enables correctional officials to apply the Department’s system of privileges and incentives, aids in the collection of lawfully imposed financial obligations, provides a tracking mechanism for funds coming into the facility or disbursed from the facility, and tracks items that have been purchased.” Discussion Rationally related to a legitimate and content neutral governmental interest The first factor is the rational basis test, i.e., whether the regulation is rationally related to a legitimate governmental interest. Additionally, the governmental objective must be content neutral. Turner, 482 U.S. at 89-90. As noted, respondents presented evidence to the trial court attempting to show that the prison regulations served the government’s interests in security and the rehabilitation of inmates. Both are valid penological interests. See McKune v. Lile, 536 U.S. 24, 36, 153 L. Ed. 2d 47, 122 S. Ct. 2017 (2002); O’Lone v. Estate of Shabazz, 482 U.S. at 348. The district court found that K.A.R. 44-12-601(q) and IMPP 11-101 were aimed at security and the rehabilitation of inmates, and that the State showed the regulations were rationally related to rehabilitation: “The defendants presented evidence that IMPP 11-101’s restriction on free [gift] publications was designed in order to have some incentives for people in prisons to behave. The mission of the institution was to try and change behavior. The regulation was designed to try and get people to make better decisions and be more accountable. The defendants presented evidence that the problem with the gift subscriptions was that it was an easy way to circumvent and take the incentives and privileges portion of IMPP 11-101 out of play. The goal of IMPP 11-101 was for inmates to behave and participate in programs and as a result they would be able to use a certain portion of their money in a discretionary way.” By contrast, the Court of Appeals held there was no rational relationship between the ban on gift periodicals and the goals of prison security and inmate rehabilitation. “It is not rational to eliminate all access to all gift periodicals for all inmates, be they model prisoners or habitual disciplinary rule violators.” 31 Kan. App. 2d at 973. We disagree with the Court of Appeals. We have examined the record on appeal, and conclude that substantial competent evidence supports the district court’s finding that the regulations are rationally related to the rehabilitation of prisoners. See Pool v. McKune, 267 Kan. at 797 (evidence of record also demonstrates that there is a rational connection between plethysmograph testing and the legitimate penological goal of rehabilitation); Collier v. Nelson, 25 Kan. App. 2d 582; cf. Thornburgh v. Abbott, 490 U.S. 401, 414 n.12, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (district court stated its standard of review required the Bureau of Prisons to articulate a relationship between its regulations and practices and legitimate penological objectives; Court held that standard was sufficiently close to the Turner standard to permit reliance on the district court’s findings). DOC personnel testified that IMPP 11-101 was designed to, among other things, create incentives for inmates to behave, and that gift subscriptions are an easy way to circumvent the outgoing funds restrictions contained there. Additionally, the use of outside funds is but one of several “eamable privileges” contained in IMPP 11-101. Others include audio-visual equipment, handicrafts, par ticipation in organizations and formalized activities, canteen expenditures, property, incentive pay, and visitation. IMPP 11-101(1). Eamable privileges are grouped into four incentive levels for inmates: Intake Level, Level I, Level II, and Level III. While inmates may use up to $30 per month in outside funds, Intake Level inmates are limited to using their outside funds for legal services fees. IMPP 11-101(VI)(A) and (B). Moreover, inmates at Level I may not use those funds to purchase books or subscriptions to newspapers or magazines. IMPP 11-101(VI)(A). Inmates at Levels II and III are not subject to those limitations on use of funds. Additionally, they may maintain one newspaper subscription and may exceed the $30 limit for outgoing funds in order to do so. IMPP 11-101(VI)(D). To complete Level I — and receive additional eamable privileges such as greater flexibility in use of his outside funds ■— an inmate must remain free of certain disciplinary convictions, have no pending disciplinary reports, and demonstrate a willingness to participate in recommended programs and work assignments for 120 consecutive days. IMPP 11-101(III)(B)(2). The same requirements hold for completion of Level II and advancement to Level III. IMPP 11-101(III)(D). In turn, inmates are automatically reduced to Incentive Level I — with its corresponding limitation on use of outside funds and loss of other eamable privileges — for being terminated from a work assignment for cause; for refusing to participate in work assignments or recommended programs; upon conviction of a felony; and for disciplinary convictions for such things as theft, intoxication, drug use, sodomy, arson, assault, battery, sexual activity, relationships with staff, dangerous contraband, disobeying orders, and rioting. IMPP 11-101(IV)(B). Inmates are reduced only one incentive level for two or more disciplinary reports during a single 180-day period which result in a conviction for a class I or class II offense, or any disciplinary conviction not listed in IMPP 11-101(IV)(B) which nevertheless results in a loss of custody or disciplinary segregation. IMPP 11-101(IV)(A). The district court found that the State’s second penological objective of reducing strong-arming, i.e., security, was weak: “The defendants also maintained that if inmates were allowed to receive gift publications, inmates could strike deals within the prison and demand that friends or family members send books in lieu of cash payments. If the friends of family of an inmate did not comply, the inmate’s family or friends could suffer retaliation. This is a practice commonly known as ‘strong-arming.’ The defendants offered one example of what they believe to be an example of the above problem but even with this the court finds that this argument is weak. The institution allows an inmate to receive a money order or cashiers check to be sent from family or friends. The issue of‘strong-arming’ by inmates is just as viable with money being sent in (which is permitted) as it is with free [gift] subscriptions, but the defendants do not restrict the incoming money. The argument that the allowance of free [gift] subscriptions causes a security risk standing alone would not be sufficient to withstand die scrutiny of the Turner test.” (Emphasis added.) We agree with the district court that strong-arming is not a well-supported argument and that standing alone it is insufficient to withstand Turner. Nevertheless, it does add weight to the overall constitutionality of the challenged regulations. Moreover, while the judge did not specify the example he alluded to, we find that Cummings’ Kansas City Star example quoted earlier in the opinion is illustrative of several of the problems the LCF officials testified that the regulations attempt to address. First, this dealing and trading allowed both inmates to circumvent the incentives and privileges system. Second, had the bargain been kept, the transaction would have been completely hidden from the LCF officials who monitored the account of the first inmate, which also would have prevented them from setting off those funds to satisfy his $2,500 debt for fines and postage loans. See, e.g., K.A.R. 44-12-601(o)(3) (“All postage for legal and official mail shall be paid by the inmate .... The cost of postage for legal or official mail paid by the facility on behalf of an indigent inmate shall be deducted from the inmate’s funds, if available.”). Finally, this dealing and trading did indeed create security problems: one inmate openly threatened the other with “my own talented ways” because of the busted deal. While this example admittedly also demonstrates that most of the same problems occur with money gifts — which are not pro hibited — LCF nevertheless has legitimate needs, e.g., security, to track the magazines and newspapers just like it tries to track the money. It accomplishes this by its chosen method of requiring that the inmate himself purchase the periodicals from his own account with an SPO. More important, when the gifted money is deposited in the first inmate’s account — per the purpose of the system to provide transaction “transparency” — LCF at least has the ability to set it off against inmate obligations and thus encourage the inmate to instead voluntarily meet his obligations. This encouragement is a form of rehabilitation but is not possible with an inmate who reaps the benefits of gift subscriptions because the money never appears in his account. Moreover, not even blanket bans are constitutionally prohibited. In Turner, the Court upheld on security grounds a regulation which “as practiced [meant] that inmates may not write non-family inmates” throughout the Missouri prison system. 482 U.S. at 82. Similarly, 3 years earlier in Block v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984), the Court upheld a blanket prohibition on contact visits in detention facilities as reasonably related to the security at those facilities, a legitimate governmental objective. In the process, it rejected the Federal District Court and Ninth Circuit Court of Appeals’ holding that totally disallowing contact visits was excessive in relation to the security and other interests at stake. 468 U.S. at 587. “[W]e have emphasized that we are unwilling to substitute our judgment on these difficult and sensitive matters of institutional administration and security for that of ‘the persons who are actually charged with and trained in the running,’ [441 U.S. at 562], of such facilities. In sum, we conclude that petitioners’ blanket prohibition is an entirely reasonable, nonpunitive response to the legitimate security concerns identified, consistent with the Fourteenth Amendment.” 468 U.S. at 588. In the First Amendment context, Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977), is of guidance. There, the Court addressed prison regulations which prohibited inmates from soliciting other inmates to join the North Carolina Prisoners’ Labor Union (Union), barred all meetings of the Union, and refused to deliver packets of Union publications that had been mailed in bulk to several inmates for redistribution among other prisoners. The Union claimed that its rights, and the rights of its members, to engage in protected free speech, association, and assembly activities were being infringed by the no-solicitation and no-meeting rules. 433 U.S. at 122. Jones was summarized by the Turner court as follows at 482 U.S. at 86: “Noting that the lower court in Jones had ‘got[ten] off on the wrong foot ... by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement,’ [433 U.S. at 123], the Court determined that the First and Fourteenth Amendment rights of prisoners were ‘barely implicated’ by the prohibition on bulk mailings, [433 U.S. at 130], and that the regulation was “reasonable” under the circumstances. The prisoners’ constitutional challenge to the union meeting and solicitation restrictions was also rejected, because ‘[t]he ban on inmate solicitation and group meetings . . . was rationally related to the reasonable, indeed to the central, objectives of prison administration. [433 U.S.] at 129.’ ” Similarly, in Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974), the Court addressed a prison regulation which prohibited face-to-face interviews between press representatives and individual inmates whom they specifically named and requested to interview. The Court rejected a First Amendment challenge by the inmates (rights of free speech) and by the reporters (freedom of the press). Regarding the inmates’ challenge, the Court held: “Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates. “Accordingly, in light of the alternative channels of communication that are open to prison inmates, we cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional.” 417 U.S. at 827-28. In addition to arguing that the Court of Appeals was correct, petitioners in the instant case rely on Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999). There, the district court had granted an injunction barring the enforcement of a Washington prison regulation that prohibited the receipt by a prisoner of any book, magazine, or other publication unless the prison ordered the publication from the publisher and paid for it out of the prisoner’s own prison account. The warden had claimed that the policy furthered the interests of preventing contraband from entering the prison, insuring the efficiency of the prison mailroom, limiting fire hazards, complying with space requirements, and preventing “strong-arming.” The Ninth Circuit Court of Appeals found that the State of Washington had failed to show how its goals were furthered by a prohibition on gift subscriptions. The court ruled: “Here, although the state has had ample opportunity to develop a record, it has offered no justification for a blanket ban on the receipt of all gift publications, nor has it described any particular risk created by prisoners receiving such publications. In sum, the state has shown no rational relationship between the policy and the legitimate penological objectives that it has asserted. Under the First Amendment, this is what the state must do to justify the restriction.” 170 F.3d at 960-61. Crofkon is distinguishable for two reasons. First, there the State faded to establish a sufficient record that the regulation was rationally related to any penological interest. Second, the penological interest at issue in Crofton was security; the court did not reject a blanket ban on gift subscriptions in an incentive program context. Here, DOC also defended its regulations based on the State’s interest in inmate rehabilitation — which the district court found was factually demonstrated. In turn, respondents claim that Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003) — decided 6 months after the district court’s decision but not addressed by the Court of Appeals — is more persuasive. There, as in the instant case, the defendants claimed that K.A.R. 44-12-601(q)(l) and IMPP 11-101 promoted KDOC’s security objective of controlling, managing, and tracking property in the prison, its objective of promoting order through positive inmate behavior, and its objective of ensuring the collection of inmates’ other financial obligations. Senior District Judge Van Bebber granted defendants’ summary judgment motion and rejected plaintiffs,’ concluding that K.A.R. 44-12-601(q)(l) and IMPP 11-101 are reasonably related to legitimate penological interests and therefore valid. “They promote the internal security of the prisons, help to deter inmates from committing future crimes or rules violations, and aid in inmate rehabilitation.” 260 F. Supp. 2d at 1083. As in the instant case, the Zimmerman court distinguished Crof-ton because the Crofton defendants had failed to develop a sufficient record to show they had actually experienced any of the problems they described. On the other hand, Zimmerman’s “[defendants . . . developed a sufficient record to show that their regulation and policies are rationally related to legitimate governmental interests. Crofton is distinguishable and the court will not rely on it.” 260 F. Supp. 2d at 1084. As stated above, we agree that the regulations are rationally related to the prison’s legitimate interests in the rehabilitation of inmates and security. The connection is not so remote as to render the policy arbitrary or irrational. See Turner, 482 U.S. at 89-90. Under Turner, the regulations must also be content neutral. It is important “to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.” 482 U.S. at 90. As explained in Thornburgh v. Abbott, 490 U.S. 401, 415, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), “the Court’s reference to neutrality in Turner was intended to go no further than its requirement in Martinez that ‘the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression.’ 416 U.S. at 413.” The district court, while affirming the neutrality of IMPP 11-101, noted that “the regulation is being enforced with uneven application.” The court found that although exceptions were made to allow inmates to receive free religious subscriptions and to grandfather one gift subscription, these exceptions were consistent with the respondent’s concept of rehabilitation. Similarly, Senior Judge Van Bebber found K.A.R. 44-12-601(q)(l) and IMPP 11-101 to be content neutral. Zimmerman, 260 F. Supp. 2d at 1083. Phelps’ memo dated February 20 appears to make an exception for free religious periodicals. Her March 2 memo clarifies that all free publications, whether religious or not, sent other than by bulk mail will be allowed, as long as the mailroom is notified in advance and the inmate verifies that it is free. Free publications would differ from gift publications in that a free publication would be available to any inmate who requested it. Because all gift subscriptions are treated equally, the regulation is content neutral. It is also important to note that LCF is not totally suppressing any expression, but rather restricting the amount of subscriptions to newspapers and magazines the inmates receive. Within those parameters, the inmates appear to be able to choose freely. We hold that the regulations are rationally related to the legitimate penological purposes of rehabilitation and, to a lesser extent, security. The majority opinion of the Court of Appeals was incorrect in holding otherwise. Alternative means of exercising the right remain The “second factor relevant in determining the reasonableness of a prison restriction, as Pell shows, is whether there are alternative means of exercising the right that remain open to the inmates.” Turner, 482 U.S. at 90. “Where ‘other avenues’ remain available for the exercise of the asserted right, see Jones v. North Carolina Prisoners’ Union, [433 U.S. at 131], courts should be particularly conscious of the ‘measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.’ ” 482 U.S. at 90 (quoting Pell, 417 U.S. at 827). Since the Court of Appeals reversed the district court on the first Turner factor — “Compliance with the first factor is indispensable as a matter of law to a holding that the ban is reasonably related to legitimate penological interests” — it held that it need not address the remaining three. See 31 Kan. App. 2d at 974. Respondents suggested several ways that petitioners can have access to the information in these periodicals. First, they claimed the inmates could purchase the subscriptions by having the “gifter” send money for the subscription to the inmate’s account so that the inmate can purchase the subscription himself through an SPO. Second, the inmates have available publications in the library. Third, if they reach their limit of $30 per month, they may ask the warden in accordance with IMP ll-101(VI)(B)(2)(d) to waive that limit. The respondents also argue that they are not totally suppressing anything, but rather restricting the amount of subscriptions to newspapers and magazines the inmates receive. Within those parameters, the inmates generally may choose freely. Petitioners argue that these alternatives fail because some subscriptions cost more than $30 per month and because some inmates may not have the funds to purchase the subscriptions. They also claim that access to the library publications is not a means of exercising their rights; they contend that inmates have difficulty signing up for library time and that the library lacks the full range of publications they desire. Petitioners further argue that LCF’s stated concerns could be met without a blanket prohibition on gift subscriptions. Specifically, they suggest that the prison could simply limit the number of publications an inmate could receive based on his incentive level. “For example, if an inmate were at the lowest level, perhaps they would be able to receive only one or two gift subscriptions . . . whereas inmates on the upper levels would be able to receive increased gift subscriptions.” The district court found that the prison’s first alternative of having inmates purchasing subscriptions was limited because some inmates may not have funds available and because of the $30 monthly limit on spending. The district court found, however, that the inmates’ needs were being met through the publications in the library. Additionally, the court found that inmates could petition the warden for an exemption to the $30 spending limit. Accordingly, it found that the respondents have provided alternative methods for the inmates to receive publications, and they were consistent with the legitimate penological interest of rehabilitation that is the focus of IMPP 11-101. As stated by the district court, there are alternative means for inmates to exercise their First Amendment rights. Inmates at Levels II and III can purchase the magazines and newspapers themselves, up to $30 per month. To make purchases that exceed those limits, inmates may petition the warden for an exemption. Furthermore, all inmates can access magazines and magazines from the library. Six inmates from each of the nine cellhouses are allowed to sign up for one of two library periods each day, for a total of 108 inmates per day. Although the library does not carry every magazine and newspaper that is published, inmates are encouraged to request that the library carry particular publications, and, according to Phelps, apparently those requested have been added. An in-house review of the actual use of the libraries revealed that often the sign-up sheets for libraiy use were not full. Substantial competent evidence supports the district court’s finding that access to the prison libraiy was a legitimate alternative method consistent with the goals of rehabilitation and security. As the Supreme Court said in Thornburgh v. Abbott, 490 U.S. at 417: “As has already been made clear in Turner and O’Lone, ‘the right’ in question must be viewed sensibly and expansively. The Court in Turner did not require that prisoners be afforded other means of communicating with inmates at other institutions, [citation omitted], nor did it in O’Lone require that there be alternative means of attending the Juinu’ah religious ceremony [citation omitted]. Rather, it held in Turner that it was sufficient if other means of expression (not necessarily other means of communicating with inmates in other prisons) remained available, and in O’Lone if prisoners were permitted to participate in other Muslim religious ceremonies. As the regulations at issue in the present case permit a broad range of publications to be sent, received, and read, this factor is clearly satisfied.” The impact of the accommodation of the right The third factor under Turner requires this court to consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. “In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison’s limited resources for preserving institutional order.” 482 U.S. at 90. If the accommodation of the right would have a significant “ripple effect” on the prison staff or other inmates, this court should be “particularly deferential to the informed discretion of corrections officials.” (Emphasis added.) 482 U.S. at 90. Petitioners contend that the only effect of allowing gift subscriptions is that prison officials will have to deliver the magazines that are received as gifts. Respondents argue that this accommodation would negate the incentive for good behavior, as well as the incentive to avoid the imposition of court fees, child support arrearages, and disciplinary fines. The district court found: “There is no question that from the institution’s viewpoint the limitation/restriction on the receipt of free [gift] subscriptions aids and assists the institution and its employees concerning security issues. The so-called ‘strong-arming’ issue is reduced. The concern over contraband is reduced. The institution is able to follow the flow of items coming into the institution more carefully. The institution is able to follow the items purchased by the inmate more carefully and to determine whether the inmate is involved in ‘trading’ of those items.” Substantial competent evidence exists to support these findings. Among other things, if all inmates, regardless of incentive level, were allowed to receive gift subscriptions, it would undermine the incentive and rewards system which serves to rehabilitate the inmates. It would also greatly increase the flow of paper into LCF and the concomitant demands on prison staff to screen and deliver them. If we required the prison to allow gift subscriptions only for Level II and III inmates, it is less clear that the accommodation of the right would have a significant ripple effect, but this does not make the regulation unreasonable. Turner speaks of this factor only in terms of giving more deference to the informed discretion of corrections officials if the ripple effect of the accommodation is significant. It does not necessarily follow that if the effect is not significant, the regulation is unreasonable. Alternatives to the regulation that have minimum cost to penological interest The final factor under Turner was stated by that Court as follows: “Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. [Citation omitted,] By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns. This is not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. [Citation omitted.] But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at a de minimus cost to valid pe-nological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” (Emphasis added.) 482 U.S. at 90-91. Petitioners have suggested that the alternative to the regulation would be to incorporate gift subscriptions into the existing regulations. Respondents contend that no ready alternatives exist to the requirement that subscription purchases be processed through the inmate banking system. The district court did not specifically address this fourth factor in its memorandum decision, though it did borrow language from Turner to find that IMPP 11-101 “is not an exaggerated response to the concept of rehabilitation for the inmates.” While the Court of Appeals stated that because the first Turner factor had not been met, it would not address the other three, it nevertheless suggested an alternative to the regulations. Specifically, an alternate SPO “could require the ordering friend or family member of the inmate to state the cost of the periodical, the source and manner of payment, and any other data needed for the prison business office and mailroom to perform their monitoring functions.” 31 Kan. App. 2d at 973. Judge Wahl, in his dissent at the Court of Appeals, addressed this fourth Turner factor as follows: “Prison officials do not have to eliminate every conceivable alternative method of accommodating the petitioners’ constitutional complaint, but if an inmate can suggest an alternative that accommodates the prisoners’ right at minimal cost to valid penological interests, the officials should consider it. Petitioners contend an easy alternative is to incorporate gift subscriptions into the existing prison mail policy. They suggest having the inmates fill out a special purchase order (SPO) for the gift subscriptions, or doing away with the SPO system and simply monitoring incoming publications or allowing inmates access to gift subscriptions as a component of the privilege and incentive policy. “The first two suggestions clearly impede the goals of rehabilitation and security because they circumvent the prison’s incentive based program. The last suggestion to incorporate gift subscriptions into the incentive — based system would appear to be a viable option for consideration. “However, an evaluation of the constitutional claims under Turner must accord great deference to prison administrators in their formulation and execution of policies and practices relating to prison administration. Such deference is necessary if prison administrators and not the courts are to make the difficult judgments concerning institutional operations. See Pool, 267 Kan. at 805.” 31 Kan. App. 2d at 977-78. We agree with Judge Wahl’s dissent. We also find substantial competent evidence to support the district court’s finding that IMPP 11-101 “is not an exaggerated response to the concept of rehabilitation for the inmates.” We additionally reject the Court of Appeals’ suggestion of an “alternate SPO” because it places the burden of additional verification on the prison. Under the present system, inmate purchases can be readily tracked and verified through their LCF bank accounts by item description,- number of items, and monetary amount. However, the same cannot be said of alternate SPO’s completed and submitted (perhaps untruthfully) by inmates’ family and friends over which the prison has no control. This potentially results in necessary verification by the prison for all such gift subscriptions for 900 inmates. It is not the prison’s obligation to contact magazine' and newspaper publishers or other entities to attempt to verify the accuracy of the information supplied on any “alternate SPO.” We may not necessarily agree that the DOC regulations are the best possible methods to rehabilitate inmates and to secure LCF. The test we use to determine the validity of the regulations, however, is whether they are rationally related to legitimate government interests. In this case, we find that they are. The opinion of the Court of Appeals is reversed; the opinion of the district court is affirmed. Beier, J., not participating. Brazil, S.J., assigned. Davis, J., concurring.

The opinion of the court was delivered by Hoch, J.: This was an action to cancel a deed on the ground that it was executed under duress. Plaintiff prevailed, and defendants appeal. The principal question presented is whether under the facts disclosed by the evidence it must be said as a matter of law that duress was not shown. On September 4, 1926, Benjamin Ogle married Mary A. Barnes, who was the mother of twelve grown children. They lived together for some time, and on September 17,1930, while Ogle was out of the state, she obtained a divorce from him in Gray county, Kansas. In January, 1931, and before the effective date of the divorce — six months after the decree was entered — Ogle returned, and they began living together as husband and wife without a remarriage, and this continued until her death on August 14, 1933. Mrs. Ogle’s father, F. M. Gilmore, was then living and was a man about ninety years of age. A few days before Mrs. Ogle’s death, and while she was critically ill, she told her father that she wanted her husband to have her property and had so provided in a will. He suggested that she execute a deed to the farm on which they were living, to, her husband, together with a bill of sale of the personal property. This was. done, the deed conveying to Ogle a- life interest in the farm. On August 22, 1933, eight days after Mrs. Ogle’s death, Ogle executed a deed conveying his interest in the farm to the living sons and daughters of his deceased wife, who are the defendants in .this: action. On October 30, 1934, Ogle- filed a petition asking cancellation of the deed on the ground that it was executed under duress. An amended petition was filed on February 3, 1936, and a second amended petition on March 20, 1937. The case was heard in June, 1938. Defendants demurred to plaintiff’s evidence and the demurrer was overruled. Following the defendant’s testimony the court took the case under advisement, and on November 14, 1938, judgment was rendered for plaintiff, and the deed executed by Ogle ordered canceled. Motion for new trial was made and overruled. Appellants contend that plaintiff’s evidence falls short of establishing duress as a matter of law, and that plaintiff’s failure to offer to place the defendants in status quo makes his evidence demurrable. Ogle testified that a few days after his wife died he had a conversation with Amos Barnes, one of the sons of his deceased wife, and that Barnes told him he “had better go and see grandfather.” He said that a day or so afterwards he went to see Grandfather Gilmore at his home in Coats. This was three or four days after his wife’s death, and no one was present but himself and Gilmore. He testified further: “Mr. Gilmore asked me if it was true that I lived with Mrs. Barnes and I told him I had and he became very angry. He told me it urns a penitentiary offense to live that way, so he said the best thing I could do was deed the property in question back to his grandchildren and leave the country. “He said his grandchildren had been in a few days before. He said Harve had affidavits and papers from Cimarron, Kansas, to show the divorce decree. His talk put the fear in me. I was afraid of prosecution so I went to see the oldest daughter, Mrs. Freeman, and told her I would settle it up. “I gave them a deed for my life estate and let them have their property. I got nothing out of it. “I saw an attorney about the situation about the middle of June, 1934. During that time I was in fear of prosecution. I never had a lawsuit before. “The deed was drawn in the Peoples Bank, at Pratt. I did not have anything to• do with the dictating of it. All I done was sign the deed. Amos Barnes, Harve Barnes and Howard Freeman were present. After making this reconveyance back to the defendants in this case I went to work on a farm for Harve Bryant. Later on I went out to Cimarron, Kansas. I came back to Pratt and stayed until 1935 and I have been at Garden City since 1,935. I told the court that I made the deed so I could leave the country. I stayed out at Cimarron two or three months after I made the deed. “I would not have made the deed in question if F. M. Gilmore had not told me that living with my urife was a penitentiary offense." Gilmore testified, in part, as follows: “Q. State whether or not Ben Ogle married a daughter of yours. A. He was supposed to have, but I could not swear to it. . . . “Q. I will ask you whether or not you advised Mary Ogle as to business matters during her lifetime? A. In that one instance I did, in regard to that property up there. “Q. What do you have reference to? A. Well, about giving Ben Ogle her property — making him a deed to the place and giving him the personal property. “Q. When did you talk with Mary Ogle, your daughter, in regard to her farm, the northwest quarter of section twenty, township twenty-eight, range fourteen, in Pratt county, Kansas? ... A. Well, as I told you awhile ago, it was shortly before her death, just a little while before her death. “Q. What did she say about her property, if anything. A. Said that she wanted to give it to Ogle; that he had been good to her and that he ought to have it and that she had made a will giving it to him. “Q. During that conversation shortly before her death, what, if anything, was said about a will? A. Yes; she said she had made a will. “Q. Well, what did you say about the will? Was anything further said about it? A. I told her the will could be torn up easier than a deed. That she had better make him a deed to the place and a bill of sale to the personal property. “Q. Do you know what kind of a deed or conveyance was talked about at that time? A. A lifetime deed was what I advised her to make; deed'it to him during his lifetime, then the property go back to her heirs, her heirs, not his. That is what I told her. “Q. What was the condition of her mind at that time, if you know? A. I think it was all right; she was just as rational as she ever was. “Q. I will ask you whether or not, Mr. Gilmore, you had a conversation with Amos Barnes and Harvey Barnes shortly after the death of your daughter, Mary Ogle? ... A. Yes, right out there on the porch. “Q. Who was present? A. I don’t think there was anyone. “Q. Well, your grandchildren were present, weren’t they, Harvey and Amos? A. Yes, they was the ones 'doing the talking. “Q. What was said, if anything, by Harvey or Amos, and what did you say, if anything? A. I couldn’t tell you a word I said, Barnes. They talked about the divorce and so forth. “Q. Who did? A. Amos and Harvey; they talked about the divorce papers. They had gone out and investigated and found that they was divorced. “Q. Who did they mean were divorced? A. Mary and Ogle. “Q. State whether or not anything was said about having certificates and affidavits from out there showing they were divorced? A. Yes. “Q. Who said that? A. Harvey and Amos. “Q. State whether anything was said relative to Amos and Harvey maldng an investigation of the facts out there at Cimarron? A. Yes; they said they had. “Q. Did they purport to have some certificates or affidavits? A. Harvey had some papers; he said he got them from the probate judge. “Q/. Where was that; what probate judge? A. The probate judge at Cimarron. “Q. State whether or not Amos and Harvey seemed to be quite worked up or agitated about the matter? A. Oh, I don’t know as I could — oh, I don’t know as I could say they were. They seemed kind of natural. “Q. You may state whether or not, Mr. Gilmore, these boys, these grandsons of yours informed you in this conversation that it was a penitentiary offense for the Ogles to live together that way? A. No, they didn’t say that. ‘‘Q. State whether or not Ben Ogle came and talked with you the next morning or shortly after you had talked with your two grandsons? A. Yes, he came here and we had quite a talk. “Q. Where did that talk take place? A. Out there on the porch. “Q. What did you say, if anything, to Ben Ogle? A. Well, we was a talking about that business out there at Cimarron. I told him it was a penitentiary offense for them to live as they had been. “Q. What do you have reference to? A. -Well, about their divorce, the trial in probate court out there. She had got a divorce out there from him. “Q. That was your daughter? A. Yes. “Q. And what was it you told him? A. I told him it was a criminal offense and we could put him in the pen for it. “Q. State whether or not you told Ben Ogle that Harvey and Amos had been to see you and had shown you affidavits and certificates showing that Ben and Mary Ogle had been divorced and hadmot been married again? A. They told me that, but did not show me any papers. “Q. You told Ben Ogle they had been there, didn’t you? A. Yes, I think so. “Q. Did you further tell him that the boys were going to cause some trouble about that deal? A. No. I don’t think I did. I don’t think I told him that. I don’t remember. “Q. Well, how did you talk to Ben that day f A. Oh, I talked pretty rough, I guess. “Q. At that time did you have good eyesight? A. Yes, my eyes were all right then.' “Q. What effect did your talk with Ben Ogle seem to have, if you could tell? A. Well, he seemed to get excited. “Q. Now to go back to the day before, when you had a talk with Amos and Harvey about the domestic relations of your daughter Mary, and Ben Ogle, state whether or not at that time Amos asked you if Ben owed you any money? A. If what? “Q. If Ben owed you any money? A. I don’t know whether Amos'asked me that or not, but there was talk about that, along that line. Amos said he would pay it. “Q. What did you say? A. I expect I told Amos that Ben owed me about twenty-one dollars, and Amos said he would pay it. “Q. Well, why did' Amos offer to pay that; do you know? A. Well I think I told him that I was going up there and get the lumber off that section twenty, and he said he would pay it; I’m not sure. “Q. Had you had some business dealings with Ben Ogle before your daughter’s death? A. Yes. “Q. What, if any? A. Well, I sold him quite a lot of lumber and had him hired to help tear down a building up there. I guess that was all. I gave him the foundation that was under the building for filling up the basement. “Q. Do you know what Mr. Ogle did with this lumber? A. He built some chicken houses with it; didn’t use part of it. “Q. Now, when you were talking with Amos and Harvey before you talked to Ben Ogle, you say that Amos said he would pay you this $21 balance that you had coming from Ben Ogle? A. Amos said he would pay the $21 back, but I don’t know whether it was before or after I had had the talk with Ben. “Q. How did this talk come up, — No. How did this conversation come up about the improvements on the farm, about lumber? A. I don’t know. I suppose we were talking about the lumber and I told him I was going to go and get it if it was not paid for, and he said he would pay for it, but he never did. . . . “Q. They went over this matter of your daughter Mary and Ben Ogle living together after their divorce pretty carefully, didn’t they? A. Yes, they talked about it. Harve did most of the talking, I don’t think Amos said but very little. “Q. Did they at that time inform you that Mary had deeded this farm in question over to Ben? A. No, I don’t think so. We all knew that. There wouldn’t have been any use to tell me that. I already knew it. “Q. You knew that because you had advised it? A. I advised her to do that if she wanted the property to go that way; it was hers, and she should do what she wanted to with it. “Q. Did these grandsons say anything to you about seeing Ben Ogle about the matter? A. I don’t think they did, I don’t know.” Cross-examination: “Q. You do not remember very much about this circumstance they have asked you about, do you, Mr. Gilmore? A. I had not been studying anything about it, but I heard it mentioned and can remember it. “Q. Who mentioned it first to you? A. Well, when we were talking about it here, just now. “Q. There was nothing you said to Ben to make him frightened or afraid of you, was there? Nothing to cause him to be alarmed? A. Well, there was nothing to make him afraid of me, but probably something to make him afraid of getting punished. . . .” Redirect examination: “Q. Ben Ogle never did make his home with you, did he? A. No. “Q. You still think that what you said to Ben Ogle might have frightened him don’t you? A. Might have what? “Q. Might have frightened him, scared him? A. What do you mean? “Q. You still think, don’t you, Mr. Gilmore, that after you had talked uhth Ben Ogle that he might have been frightened or worried about what you told him? A. Yes, I know he was.’’ (Italics ours.) Was this testimony sufficient to support a finding of duress? This court and many others have shown a tendency toward liberality of definition — that is, to relax the rigid requirements of the older rule concerning duress. It was said in Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807: “Under the modern theory duress is to be tested, not by the nature of the acts or threats, but rather by the state of mind of the victim induced by such acts and threats.” (p. 505.) (See 9 R. C. L. 716, 717.) Again, the old rule, frequently stated, was that “duress is that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness.” In a carefully considered opinion in the case of Riney v. Doll, 116 Kan. 26, 225 Pac. 1059, this court repudiated the proposition that ordinary firmness of mind should be included in the standard by which to test the existence of duress. It forcefully argued that if a person imposed upon by use of threats had a mind of less than “ordinary firmness” he was all the more entitled to be protected. The court said: “The courts now generally recognize that this definition is inaccurate, for at least two specific reasons, viz.: First, experience has furnished no yardstick by which the firmness of the human will can be measured, and second, even though that could be done, one having a weak will is as much entitled to the protection of the law as though his will were of ordinary firmness or of extraordinary firmness. When one uses the bludgeon of duress to break the will of his adversary and thereby gains a wrongful or unconscionable advantage, a court will relieve the victim of the consequences of the act he was thus forced to perform, whether his will be weak, requiring but one blow to shatter it, or whether it be of ordinary firmness requiring several, or whether it be as adamant, requiring many. “The courts now quite generally recognize the inaccuracy of defining duress by applying it to a person of ordinary firmness.” (p. 30.) (See earlier cases and authorities there cited.) Was there substantial evidence that Ogle, whatever degree of “firmness of mind” he may or may not have had, was so put in fear of prosecution that he was robbed of the free exercise of his will, and under such influence, executed the deed? Certainly there was evidence that he was badly scared by what he reasonably believed was a plain threat of prosecution. Grandpa Gilmore told him that “we could put him in the pen” and suggested that he had better deed the farm to the sons and daughters of his deceased wife and leave the country. Grandpa testified that Ogle might not have been put in fear of him, but was scared and probably afraid of being punished. Ogle proceeded to visit one or more of the defendants, and in their presence the deed was made out by someone else, at the bank. Without receiving anything for doing so he parted with his life interest in the farm, which his wife had desired him to have. If the grantees, who were paying nothing for the grantor’s life interest in the farm, had no knowledge of the threats they must have thought that Ogle’s action was a rather unusual proceeding. But it may be said that the testimony discloses that there was no definite and unequivocal threat that prosecution would follow if the deed were not given, or that giving of the deed would avoid prosecution. But the trial court was the trier of the facts, and certainly it cannot be said that no inference could reasonably have been drawn that a definite threat .of prosecution had been made. (Smith v. Bank, 90 Kan. 299, 133 Pac. 428.) It was held by this court in the case of Fritchen v. Mueller, 132 Kan. 491, 498, 297 Pac. 409, that where a prima facie case of duress is made out the issue must be submitted upon the sufficiency of the facts to establish it. We cannot say on the evidence in this case that no facts were shown from which the trial court could conclude that the mind of Ogle had been so disturbed by threats of prosecution that in executing the deed he was not exercising his free will. In Graves v. O’Brien, 111 Kan. 320, 207 Pac. 198, it was said that “A case of duress is made out where there is a fear of prosecution or imprisonment, excited by threats.” (p. 327.) In the case of Wilson v. Calhoun, 170 Ia. 111, 151 N. W. 1087, a deed was set aside on the ground of duress, although the evidence disclosed that the grantor, who had committed a crime, executed it only “at the urgent advice and solicitation of friends and confidants” that he do so and “flee from the country.” But appellants say that the demurrer should have been sustained because the plaintiff did not offer to place them in statu quo. What would have been necessary to do that they do not indicate. If they had expended any money for improvements on the farm subsequent to the deed from Ogle, or had otherwise incurred expense or suffered damage in connection therewith, it is not disclosed by the record. All that the record shows is -that they got the farm for nothing. We find nothing in the record to justify disturbing the judgment. The judgment is affirmed. Harvey, Smith and Allen, JJ., dissent.

The opinion of the court was delivered by Thiele, J.: This was an action to quiet title. Defendants appeal from an order overruling their demurrer to plaintiff’s petition. The petition alleged that prior to July 12, 1922, John T. Kerfoot owned the involved real estate, and on the above date he and his wife conveyed the real estate to their daughter, Virginia Nell Kerfoot, by warranty deed, a copy of which was made part of the petition; that thereafter Virginia "Nell Kerfoot married one Henry Stowers. The defendants are their children. The children were born prior to October 27, 1936, on which date Virginia Nell Kerfoot Stowers and her husband conveyed a part of the land to Ethel M. Beymer by warranty deed. On December 14, 1938, Mrs. Stowers and her husband conveyed the remainder of the land to Phillip Shell. By subsequent conveyances the plaintiff became the owner of the entire tract. Plaintiff alleged that the defendants, the children of Virginia Nell Kerfoot Stowers, claimed some interest in the real estate, and that such claims constituted a cloud on his title, and he prayed that his title be quieted as against the defendants. The deed above mentioned is abstracted as follows: In the caption the grantors are John T. Kerfoot and Elsie V. Kerfoot, his wife, and the grantee is “Virginia Nell Kerfoot, daughter of the grantors.” The granting clause recites that the first parties grant and convey “unto said party of the second part, during her life” certain described real estate. Immediately following the description is the following statement: “The intention of this deed is, That the said Virginia Nell Kerfoot shall have a life estate in the property hereby conveyed, and after her death the heirs of her body shall share equally in the said property.” The habendum clause is: “To have and to hold the same, ... to the said party of the second part during her life and after her death to the heirs of her body in equal shares.” In the warranting clause the grantors covenant they will warrant and defend “unto said party of the second part, during her life, and after her death to the heirs of her body in equal shares.” The gist of appellants’ contention is that the above deed gave the grantee a life estate only, with a remainder in the heirs of her body, here the defendants, and that they have an interest in the real estate which cannot be cut off by the action to quiet title. Appellee contends that the deed created an estate tail in Virginia Nell Kerfoot and her subsequent deeds cut off the entailment and vested a fee-simple title in his grantees. Appellant places some reliance on Meyer v. Meyer, 147 Kan. 664, 78 P. 2d 910, wherein it was held: “A devise to A for life, with remainder in fee simple to the heirs of the body of the life tenant, creates a life estate with a contingent remainder, and not a fee tail.” (Syl.) After that opinion was filed, a rehearing was allowed, as a result of which the court concluded that the above ruling was contrary to the established rule in this state, and should not stand. In the opinion on the rehearing, Meyer v. Meyer, 149 Kan. 23, 86 P. 2d 493, a review of some of our decisions was made, and it was said they had established a rule of property in this state, and it was held that: “A devise to A for life, remainder in fee simple to the heirs of his body, creates a fee-tail estate in A.” A résumé of the history of estates tail may be found in Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, and reference to the efforts made to abolish such estates in Kansas may be found in Gardner v. Anderson, Trustee, 116 Kan. 431, 227 Pac. 743. In the last case an estate tail was defined: “An estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and in which the regular and general succession of statutory heirs at law is cut off.” (Syl. It 3.) This definition has been followed in subsequent cases. (See Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475; Brann v. Hall, 141 Kan. 749, 43 P. 2d 229.) Appellants have cited a number of cases in which an apparently contrary result was reached. All may be distinguished from the instant case. In Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682, language in a will was construed. Assuming it open to a contention an estate tail was created, no such contention was made, nor does the opinion discuss such an estate. The contention was whether a disposition was obnoxious to the rule against perpetuities. In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, a deed was made to a son for life, remainder to his wife under certain conditions and remainder in fee to the heirs of his body. The father filed the deed for record. The son refused to accept. Later the father sought to cancel the deed. It was held refusal of the son to accept the deed did not accelerate the remainder and that recording of the deed by the grantor made it effective to all persons who did not dissent. The question of whether the deed might have created an estate tail was not raised, was not discussed and was not decided. In Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884, it was held the will created an active trust, vested the title in trustees and did not create an estate tail in the beneficiary grandchildren. In Browne v. Boone, 129 Kan. 786, 284 Pac. 436, there was specific provision that the life-tenant devisee in the will and the life-tenant grantee in the deed should have no power of alienation. In Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904, it was held that the limitation over was upon definite failure of issue and an estate tail was not created for that reason, and a similar result was reached in Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433. In Brann v. Hall, supra, the language used did not cut off the regular and general succession of the statutory heirs. In Coleman v. Shoemaker, 147 Kan. 689, 78 P. 2d 905, a trust was also held to have been created. In that case is a review of some of our cases to which reference is made. Under our decisions there is no doubt but that the words used in the deed before us were appropriate to and did create an estate tail. The demurrer admits the execution and delivery of warranty deeds by the grantee. The legal effect of those latter deeds was to cut off the entailment. It follows that appellants’ contentions they were possessed of interests in the lands cannot be sustained. It may be observed that the provisions of Laws of 1939, chapter 181, section 2, that the rules of the common law pertaining to estates tail shall not be applied in this state, apply only to instruments becoming effective after the effective date of the act. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Thiele, J.: Connie Busch appeals from a judgment abating and permanently enjoining certain described real estate as a place where a nuisance was maintained in violation of the intoxicating liquor laws of the state, and from a judgment for costs in connection therewith. The real estate is described as that portion of a described tract “occupied by and commonly known as the Black Cat or Cats Sundries,” in Sedgwick county. At the trial it was agreed the building was known as 3805 Broadway and that the legal title stood in the name of Connie Busch. A plat offered in evidence shows that the Black Cat building faced east. Immediately to the north was another building, part of which was connected to the first, but there seems to have been no doorway between them. This north building at some undisclosed time was used as a hamburger stand. To the rear were six or seven cabins and garages used in connection with a gas filling station a short distance to the south of the Black Cat. A fence separated the Black Cat building from all of the cabins except one. Pursuant to a duly filed petition and application for injunction, a temporary injunction issued on February 11, 1938, the defendants being Albert Dick, Clem Dick, Frank Busch and Connie Busch. This followed a raid of the premises under search warrant at which time one bottle of intoxicating liquor was found in the Black Cat and ninety-nine bottles were found in the building immediately to the north. There was taken from the wall of the main building a United States Internal Revenue special tax stamp bearing the legend: “Keep this stamp posted,” showing payment of $25 tax — retail liquor dealer — expiring June 30, 1937, and issued to Frank Ridder, 3809 N. Broadway, Wichita. At the same time, defendants Clem Dick and Albert Dick, proprietors or occupants, were arrested and charged with unlawful possession of intoxicating liquors. Sometime thereafter Albert Dick pleaded guilty and was sentenced to imprisonment and fine, the fine being paid. The criminal action .against Clem Dick was dismissed. On October 30, 1938, a sheriff’s force again searched the property under warrant. At this time, W. W. LeBlond was in charge of the Black Cat, and James Miller was in charge of the filling station. William Morris was also arrested, but there is no showing as to what connection, if any, he had either with the Black Cat or the filling station. A partially filled bottle of gin was found in a slop bucket outside the back door of the Black Cat, and between the bucket and the side of the building was a glass full of gin. At a point possibly two hundred fifty feet to the northwest and possibly fifty feet northwest of the west cabin and to the west of the fence referred to above, twenty pints of intoxicating liquor were found. The record does not disclose what the place of storage was, or, if the liquor was concealed, the manner of its concealment. LeBlond, Miller and Morris were arrested. On November 1, 1938, on motion of the state, they were made parties defendant to the action for an injunction. On November 15, 1938, an order to show cause why each of the defendants should not be held in contempt and why a padlocking order should not issue was made and trial thereon followed on December 5, 1938, at which the defendants Dick did not appear and were not represented. At the conclusion of all the evidence, each of the other defendants demurred, and as to all of them, except Connie Busch, the demurrer was sustained. The trial court found the temporary injunction should be made permanent and decreed that Clem Dick, Albert Dick and Connie Busch be enjoined from selling, delivering and giving away intoxicating liquors on the involved real estate, etc., and adjudged that the costs, including an attorney’s fee of $100 to the county attorney be paid by said three defendants. No padlocking order was made. The motion of Connie Busch for a new trial was denied, and she appeals. Under sufficient specifications of error, appellant presents three questions which will be considered. The first is whether in a proceeding to abate a liquor nuisance the court may render a judgment for costs and attorney fees and enter a permanent injunction against an owner of the premises in the absence of a showing either that the owner of the premises had knowledge a nuisance was being maintained on the premises by a tenant, or that the owner was implicated with the tenant. The second question is whether the evidence presented tended to show knowledge on the part of the owner that any liquor nuisance was maintained by her tenant, and the third question pertains to whether an allowance of a $100 attorney fee was reasonable and proper. It may be observed there is no evidence and no claim by the state that appellant was personally engaged in maintaining a liquor nuisance on her real estate. If she is to be held liable, it must have been established that she “assisted in maintaining” as that expression is used in the statutes pertaining to abatement of intoxicating liquor nuisances. With respect to the first question, appellant presents a discussion of the legal test to be applied in determining who “assists” in maintaining the nuisance as a result of which an order of injunction, with resulting liability for costs, may issue. In that connection, our at tention is directed to State v. Poggmeyer, 91 Kan. 633, 138 Pac. 593, where it was said: “The various provisions of the prohibitory law, containing amendments and changes made in the twenty-five years and more of its growth, should be construed together as if all its provisions were enacted at the same time. (The State v. Jepson, 76 Kan. 644, 648, 92 Pac. 600.)” (p. 635.) That case was decided in 1914 and since then changes in the intoxicating liquor laws have been made, perhaps the outstanding one being the so-called “bone-dry law.” Each decision herein mentioned must be considered in view of the statutes in force at the time of its rendition. Without attempting to mention each statute, it may be noted that under the bone-dry law it is an'offense for any person to have intoxicating liquors in his possession, and also an offense “to permit another to have or keep or use any such liquors on any premises used or controlled by him.” (G. S. 1935, 21-2101.) It is also an offense for any person, directly or indirectly, to keep or maintain a place where intoxicating liquors are received or kept for use, gift, barter or sale (G. S. 1935, 21-2118). Each of these statutes defines a criminal offense, with resulting consequences following conviction. The particular statute with which we are now concerned was originally enacted as Laws 1901, ch. 232, as supplemented by subsequent legislation, and now appears as G. S. 1935, 21-2130 to 21-2139, inclusive. Section 1 of the original act declares that — ■ “All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances; and every person who maintains or assists in maintaining such common nuisance shall be guilty of a misdemeanor” (and punished as provided in the act). It will be observed that the physical objects are declared to be the nuisances and that the punishment is primarily for maintenance of the nuisance. Under section 3 provision is made for the filing of answers by any defendant or other persons claiming property seized, and under section 4 provision is made for judgment for forfeiture, and if the court shall find the property then owned by any person was knowingly allowed by him to be used in maintaining a nuisance, for judgment for costs against him. Section 5 of the act provides a right of reentry by the owner of premises where a tenant maintains or permits maintenance of a nuisance, and section 6 provides: “Anyone who knowingly permits any building or tenement owned or leased by him or under his control, or any part thereof, to be used in maintaining a common nuisance, or, after being notified in writing of such use, omits to take all reasonable measures to eject therefrom the person so using the same, shall be deemed guilty of assisting in maintaining such nuisance.” What was original section 8 was revised, with other provisions of other acts, in 1923. It now appears as G. S. 1935, 21-2139, and reads: “In all prosecutions, either under the state laws or under municipal ordinances, for maintaining a common nuisance as hereinbefore defined, the finding of intoxicating liquors in the possession of one not legally authorized to sell the same, shall be prima facie evidence that such liquors are kept for sale or use in violation of law.” To make the above act more effective and to supplement it, the legislature enacted Laws 1903, ch. 338, § 1 (G. S. 1935, 21-2131), providing for an action in the name of the state to abate and perpetually enjoin a nuisance as defined in the act heretofore mentioned. Among other provisions is one that on judgment for plaintiff an attorney’s fee may be fixed and collected as other costs. Before an action to abate a nuisance may be successfully maintained, it is necessary to show the place in question was one where intoxicating liquors were manufactured, sold, bartered or given away, or where persons were permitted to resort for the purpose of drinking them as a beverage, or where they were kept for sale, and a showing that intoxicating liquor was found on the premises would be prima facie evidence that they were kept for sale or use in violation of law. In this case we are concerned with the test to be applied to the owner of the real estate, rather than to the actual and personal maintenance of the nuisance, and the question in this case is as to the meaning to be given to the word “assists” as used in defining places declared nuisances and to the words “knowingly permits” as used in referring to buildings or tenements used in maintaining the nuisance. In Koester v. The State, ex rel., 36 Kan. 27, 12 Pac. 339, Koester owned certain real estate which he rented to Taylor. Taylor sublet a portion to Temme, who opened a saloon. An action to abate was brought against Koester and Temme, and a temporary or&er made. Later motion was filed to have Koester held in eontempt because he had allowed another person to open a saloon. The trial court held Koester in contempt and he appealed. This court reversed, holding: “Where a landlord leases his premises to a tenant for a term of years at a stated rent, and thereby loses all control over the premises while the tenant is in possession, and subsequently a temporary injunction is granted against him and a subtenant, forbidding them from opening or keeping a saloon upon the premises for the sale of intoxicating liquors in violation of law, and after-wards, and while the original lessee is in possession of the premises under the lease, a subtenant opens a saloon therein and sells intoxicating liquors without having any permit therefor, the mere knowledge of the landlord that his premises are used for the sale of intoxicating liquors in violation of law, and his failure or omission to take steps to avoid the lease, and to reenter the premises, are not sufficient to justify his punishment for contempt for disobedience of the temporary injunction.” It may be noted that the above decision has never been cited in a subsequent case. There has been great change in the statutes since it was rendered, and a similar ruling would hardly be made in a like case today. It was provided in the original liquor act passed in 1881 (now G. S. 1935, 21-2120) that in case any person should let or lease any property “and shall knowingly suffer the same to be used and occupied for the sale of intoxicating liquors,” etc., fine and costs should be a lien on the real estate. Under that statute it was held in Cordes v. The State, 37 Kan. 48, 14 Pac. 493, it was not essential the owner witnessed or had knowledge of particular sales of which the occupant was convicted, and— “An owner of leased premises can only be made liable under this statutory provision when he knowingly permits the occupant to use the premises for the unlawful sale of intoxicating liquors; but knowledge sufficient to excite the suspicions of a prudent man, and to put him upon inquiry, is equivalent to knowledge of the ultimate facts.” (Syl. ¶ 3.) Although there have been many cases dealing with injunctions against nuisances in the intervening years, nearly all of them deal with the liability of the persons in charge as distinguished from the liability of the owner of the real estate. In State v. Glass, 99 Kan. 159, 160 Pac. 1145, it was said: “The defendants insist that the testimony did not prove that a nuisance had been kept or maintained by them. It was not necessary to prove that they had kept or maintained the nuisance. It was sufficient if the evidence proved that the nuisance had been kept and maintained with the knowledge, permission or consent of the defendants.” (p. 161.) In the recent case of State v. Bonnie France, 146 Kan. 680, 72 P. 2d 1003, no test was set forth, the case holding only that the evidence was sufficient to charge the owner with actual knowledge a nuisance was being maintained. It must be remembered that the primary purpose of the injunction proceeding, insofar as real estate is concerned, is to prohibit its use as a liquor nuisance, and the mere fact the owner did not know of the wrongful use would not defeat the action. To successfully maintain the action against the real estate it is not necessary to prove actual sales. (See State v. Lewis, 63 Kan. 265, 65 Pac. 258, for a more complete discussion.) To show liability of the owner for the costs and charges ensuing from such a proceeding, it would be necessary to show that the owner assisted, assistance under the statute, in addition to active participation, including knowingly permitting the unlawful use. Knowledge of that unlawful use may be proved directly or inferentially. Under the statute, possession of intoxicating liquor on the premises is prima facie evidence. And proof of knowledge of any facts sufficient to excite the suspicions of any prudent person and to put him on inquiry is equivalent to knowledge of the ultimate fact. And so we proceed to consideration of appellant’s second question, and that is whether the evidence was sufficient to justify the judgment. In addition to the showing indicated by what has been said heretofore, there was a showing that at the time of the first raid there was a regular bar, equipment, glasses, shakers, etc., in the Black Cat. Defendant’s cross-examination tended to show it was a bar of the type found in places where beer or soda water was sold. There was also evidence that at the time of the second raid there were some electric bells for signaling purposes. Defendant’s evidence was that these bells were used in connection with operation of the filling station and the cabin camp. Appellant objected to the internal revenue stamp being received in evidence and now contends its admission was error and it should not be considered. In State v. Dollar, 88 Kan. 346, 128 Pac. 365, it was held it was competent to show in a liquor prosecution that the accused, during a portion of two years preceding the commencement of the action, had procured internal revenue stamps, and to introduce in evidence documents in connection therewith found on the premises. It must be remembered that when this evidence was received, all of the defendants were before the court. We do not overlook the fact that, at the time it was found, the time for which the same was issued had expired, that the person to whom it was issued was not identified, and that the address noted was not that where the stamp was posted. Later, although it did not do so, the state might possibly have shown the stamp had been posted for some length of time and that each of the defendants was aware of it. We cannot say the admission in evidence of the stamp was error. There is dispute whether appellant admitted she signed appearance bonds for some of the defendants. We shall not attempt to resolve that dispute, for the mere fact — if it was a fact — that she signed bonds for her tenants did little to prove knowledge on her part of liquor law violations on their part. Actions to abate liquor nuisances and for injunctions are civil and not criminal (State v. Curtis, 143 Kan. 984, 986, 57 P. 2d 22) and the same high degree of proof is not necessary as in a criminal proceeding. But there must be proof of the various elements required by the statute. In the present case, there are two matters for consideration: (1) whether an injunction should have been granted as to the real estate, and (2) whether Connie Busch either maintained, assisted in maintaining or knowingly permitted its maintenance, so that she might be held liable for costs including attorney’s fees allowed to the plaintiff. We shall consider the second question first. The trial court, having heard all of the above evidence, sustained the demurrers of defendants LeBlond, Morris, Miller and Frank Busch. The defendants Dick made no appearance and did not defend and have not appealed. But what of Connie Busch? A majority of this court is of opinion the evidence did not justify the judgment against her. Not being satisfied that the abstract and counter abstract contained all of the evidence, we sent for the transcript. A painstaking review of it shows no more than is disclosed by the printed record in the abstracts. Insofar as Connie Busch is concerned, the record shows that she admitted owning the real estate, possibly that after they were arrested she signed the bond or bonds of some one or more of the other defendants, although that is far from clear. These matters cannot be said to be sufficient to excite her suspicions as a prudent person and to put her on inquiry as to whether or not her real estate was a nuisance under the intoxicating liquor laws so as to subject her to the penalties of those laws. The record is destitute'of any evidence as to whether or not there had been violations at any other times at that place; there was no evidence the place had a reputation as a place where liquors were kept, bartered or sold; there was no evidence that Connie Busch had been in the Black Cat at any time the revenue stamp was posted on the wall or that she knew of it. The most that can be said is that she knew what the first raid disclosed after the raid was made. Thereafter, her then tenants left the premises and she got other tenants. At the second raid, some liquor was found outside the rear door of the Black Cat, and other liquor was found on property other than that with which we are concerned. The trial court said that the evidence was not sufficient as against LeBlond, Miller and Morris to show a nuisance was being maintained. We are inclined to agree that it was not — but whether it was or was not, it was far short of being sufficient to show that Connie Busch either maintained, assisted in maintaining, or knowingly permitted the maintenance of a liquor nuisance on the real estate owned by her and described in the application for an injunction. Under such circumstances, the judgment of the trial court against Connie Busch for costs and attorney’s fees was erroneous and must be set aside and vacated. What of the injunction against the real estate? Under the statute, the presence of intoxicating liquor found in the Black Cat at the time of the first raid was prima facie evidence that it was there for sale or use in violation of law (G. S. 1935, 21-2139). There was no evidence to rebut that evidence. Later Albert Dick, then one of the proprietors, pleaded guilty to unlawful possession. Such being the circumstances, how can it be said there was no showing a nuisance was not being maintained on the premises? Under the reasoning of State v. Lewis, 63 Kan. 265, 65 Pac. 258, the proceeding was also in the nature of one in rem against the real estate, and the evidence was sufficient to support the judgment that a liquor nuisance was maintained on the premises and should be abated. Insofar as the judgment of the trial court granted an injunction against Connie Busch personally, and awarded costs against her or against her real estate, it is reversed. Insofar as the judgment granted an injunction in rem against the real estate it is affirmed.

Per curiam: Plaintiffs have invoked our original jurisdiction in mandamus to compel defendants to extend to plaintiffs as duly licensed osteopathic physicians the right to use the county hospital for the purpose of treating their patients. To the alternative writ allowed, defendants have filed a motion to quash, on 'various grounds, the first of which is that plaintiffs have no legal capacity to maintain the action. So far as concerns the plaintiff Gaffney, the motion is not good, under many of our precedents. (Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 536; Kern v. Newton City Commissioners, 147 Kan. 471 P. 2d 954.) The statute authorizing the creation of the county hospital and its governing board declares that no discrimination shall be made against practitioners of any recognized school of healing, and all legal practitioners shall have equal privileges in treating patients in such hospital. (G. S. 1935, 19-1813.) A motion to quash is ordinarily the equivalent of a demurrer. It admits the truth of' all allegations well pleaded, but no others. The fact that in an application for mandamus some allegations may be included which are not well pleaded or complaints against the methods of' defendants in conducting the hospital about which the petitioner can have no concern apart from the general public cannot be met by a motion to quash. Neither is a motion to quash strengthened by including therein general or specific denials of the material allegations of plaintiffs’ petition, nor by counter allegations of fact which might properly appear in an answer or other pleading. Nor does such a motion lie against an application for mandamus because it includes a request for an adjudication of matters of public concern sought in the application for the writ about which no actual controversy exists between plaintiffs as private litigants and these defendants. The motion to quash is therefore denied, and defendants may have thirty days in which to plead further, as they may be advised.

The opinion of the court was delivered by Wedell, J.: This action was instituted by a broker to recover a fixed commission alleged to be due and owing to him under the express terms of a written agreement, for having negotiated a lease for the defendants with Sears, Roebuck and Company. Judgment went for plaintiff, and defendants appeal. Separate actions were filed against the defendants, H. V. Wheeler and The Midland Building Company, a corporation. The commission contract was made with Wheeler. Later Wheeler transferred the property for which a lease was obtained to the defendant, The Midland Building Company. The latter company executed a lease to Sears, Roebuck and Company. It was stipulated below to waive trial by jury and to try the two actions together on the same evidence and that no distinction should be made between the liability of Wheeler and The Midland Building Company. The commission claimed by appellee in this action was $2,500, that being the first installment of a total commission claimed in the exact sum of $10,000. It is conceded appellee is either entitled to recover $2,500, in the present action, or nothing. His claim to $2,500 in the present action and to an ultimate commission in the sum of $10,000 is predicated upon a written contract. The contract was pleaded and attached to his petition as the basis of his cause of action. The principal question with which we are concerned, at the outset and at the end of this litigation, is the interpretation of the contract relied upon by the plaintiff. All other specifications of error are incidental. We shall therefore turn immediately to the provisions of the commission contract. It reads: “This agreement entered into on this the 30th day of July, 1937, by and between: “H. Y. Wheeler, as party of the first part, sometimes herein called the ‘Owner,’ and Harry T. Morgan, of Wichita, Kan., as the party of the second part, sometimes herein called the ‘Broker.’ “Wiinesseth : (1) “That it is agreed between the parties hereto that the ‘Owner’ shall, upon the conditions herein stated and not otherwise, be liable to and shall pay the ‘Broker’ the sum of ten thousand dollars ($10,000) in full payment and consideration for his services as a broker in negotiating a lease between the undersigned owner and the Sears, Roebuck and Company, a corporation. “The services of the ‘Broker’ herein referred to relate to the following property located in Wichita, Sedgwick county, Kansas, to wit: “All of lots ‘G,’ ‘H’ and T,’ and the south 1494 feet of lot ‘J,’ on Market street, in replat of reserve in Greiffenstein’s addition to the city of Wichita, Kan. (2) “The liability of the ‘Owner’ to the ‘Broker’ is contingent upon the following conditions: “That the lease now in negotiation shall actually be consummated, signed, executed and delivered by the parties, and if said lease is not so executed, whether it be the fault of either the lessor or the lessee, no commission or liability for commission shall exist on the part of said ‘Owner.’ (3) “In event said lease is signed, executed and delivered, then the said sum of ten thousand dollars ($10,000) shall be paid and payable as follows, without interest: “(a) Two thousand five hundred dollars ($2,500) at the time when said lease is actually executed and delivered; (b) two thousand five hundred dollars ($2,500) at the time when said building is half completed; (c) five thousand dollars ($5,000) when the building is actually completed, and accepted as completed and ready for occupancy by the Sears, Roebuck and Company. “In the event said building is completed and not actually accepted for occupancy, then there shall be no liability for the said five thousand dollars ($5,000). (4) “The ‘Broker’ accepts the conditions of this agreement in lieu of and in full compensation for his services in connection with said lease, and the ‘Owner’ agrees to pay said sum at the times and upon the conditions and contingencies herein stated. (5) “This contract shall extend to and be binding upon the heirs, executors, administrators, successors, trustees and assigns of the parties hereto. “In witness whereof, the parties hereto have caused this agreement to be executed and delivered on this the day and year first herein written. (Signed) H. V. Wheeler, First Party and ‘Owner,’ (Signed) Harry T. Morgan, Second Party and ‘Broker.’” (Italics inserted.) (The paragraphs of the contract were not originally numbered, and have been numbered for our convenience.) Appellant contends the contract when read in its entirety, and especially the italicized portions thereof, clearly indicates this was a contingency contract, and that the conditions upon which a commission in the sum of $10,000 would become due and owing are clearly- specified in the contract. It is his position that since this action is predicated upon an express and not upon an implied contract liability attached only upon the happening or fulfillment of the conditions specified, and not otherwise. He contends the clearly stated and plain condition of liability was that expressed in paragraph two, namely, that “the lease now in negotiation shall actually be consummated, signed, executed and delivered by the parties,” and that the contract was obviously not intended to make him liable in the sum of $10,000, for the consummation of an entirely different kind of lease than that which was in process of negotiation at the-time the commission contract was signed. Appellee, just as strenuously, urges the contract simply required him to negotiate “a” lease with a definite lessee, namely, Sears, Roebuck and Company, and on the premises described; that the words in paragraph two, to wit: “the lease now in negotiation,” simply meant “a” lease between the parties designated, which was then in negotiation. The trial court adopted appellee’s interpretation. That interpretation is disclosed by the court’s finding number 13, which reads: “The court finds the phrase in .the contract ‘the lease now in negotiation’ did not refer to any definite or specific lease, plans or specifications, but had reference to negotiations to procure a lease which the owner and lessee would sign.” We cannot bring ourselves to concur in the interpretation adopted by the trial court. If that interpretation be correct then appellant would have been liable to appellee in the sum of a $10,000 commission for negotiating a lease between Wheeler and Sears, Roebuck and Company on the particular premises described for any kind of building, for any lease term irrespective of how short the term might be, and irrespective of the rental income. The appellant, on the theory of the court’s interpretation, would have been liable for a commission in the sum of $10,000 on a six months’ lease or a one-year lease with a total rental of far less than the amount of the commission. It is no answer to say that the owner nor Sears, Roebuck and Company would ever have entered into a lease of that character. What the parties to the lease might or might not have done constitutes no safe legal guide for the interpretation of the express commission contract executed between Wheeler and appellee. “The lease now in negotiation,” July 30,1937, the very day the commission contract was executed,-contemplated a three-story building with basement, covering ground 90 by 147 feet, a thirty-year lease with an annual rental of $31,500. This contemplated lease, then in negotiation, would have yielded a total rental of $945,000. That lease was not consummated at that time or at any other time. That lease was completely abandoned. About one year later and in the month of July, 1938, the parties entered into an entirely different lease for a two-story building and basement. It covered only 55 feet by 147 feet, as against a building of 90 feet by 147 feet, in contemplation when the commission contract was executed. It provided for a ten-year term, and not for a thirty-year term, as did “the lease in negotiation” on July 30, 1937. It provided for a fixed rental of only $10,800 per year, plus a rental bonus of two and one-half percent on all net annual sales in excess of $432,000, should the lessee make sales in such volume, instead of an annual rental of $31,500. It therefore provided for a certain total rental for the term of the lease of only $108,000, or about one-eighth, or twelve percent, of the total rental of “the lease in negotiation” when the commission contract was signed. We cannot ignore the terms upon which the parties themselves contracted and thereby make a new contract for them. In this contract appellee agreed, “The owner shall, upon the conditions herein stated and not otherwise, be liable to and shall pay the broker the sum of $10,000.” Those conditions did not consist only 'in negotiating “a” lease with Sears, Roebuck and Company on the premises. The parties by their agreement stipulated that liability was contingent upon further conditions. In paragraph two they expressly made liability for $10,000 contingent upon the actual consummation, execution and delivery of “the lease now in negotiation,” and not upon the consummation of “a lease now in negotiation.” Had they meant to cause liability to attach upon the consummation of any lease the parties might thereafter execute on the premises, they could easily have said so in plain language. They did not do so. On the contrary, they plainly made liability in the sum of $10,000 contingent upon the consummation of “the lease now in negotiation.” If the interpretation of the trial court be correct, there would have been no need or purpose whatever of employing the words “the lease” or the words “now in negotiation.” They would constitute mere surplusage. Appellee, however, expressly agreed in paragraph two to make liability in the sum of $10,000 contingent upon the actual consummation of “the lease now in negotiation.” The same identical import is conveyed by paragraph number one. In paragraph number two appellee further agreed no liability should exist “if said lease is not so executed, whether it be by the fault of either the lessor or the lessee.” In paragraph three appellee again made the execution of “said lease” a condition of liability. In paragraph 3 (a) he made actual execution and delivery of “said lease” a condition for payment of the first $2,500 of the commission. In paragraph 3 (b) he made the completion of one-half of “said building” a condition for payment of the second $2,500 of the commission. In paragraph 3 (c) he made the actual completion of “the building” and its acceptance by Sears, Roebuck and Company, as completed, a condition for payment of the remaining $5,000 of the commission. And in paragraph four appellee again expressly recognized that liability for payment of the $10,000 commission was made dependent upon compliance with “the conditions and contingencies” stated in the contract. The interpretation of a written contract, free from ambiguity, is a judicial function. (Platts v. Thompson, 126 Kan. 544, 268 Pac. 833; Sipes v. Pessemier, 144 Kan. 300, 58 P. 2d 1085; Fleming v. Campbell, 146 Kan. 294, 69 P. 2d 718.) Was the instant lease actually uncertain or ambiguous? In Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661, the test of uncertainty is stated thus: “Ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” (p. 372.) (Italics inserted.) The application of proper rules of construction, heretofore indicated, clearly discloses the instant lease was not genuinely uncertain or ambiguous. No oral testimony relative to what the parties understood the contract provided or meant was therefore necessary or proper. All the law requires of the plaintiff in an action on an express and unambiguous contract, such as the instant one, is the establishment of the contract and the actual performance of the contractual conditions upon which liability is expressly made contingent. (Karr v. Moffett, 105 Kan. 692, 695, 185 Pac. 890; Karr v. Moffett, 106 Kan. 379, 187 Pac. 683, on rehearing; Wenkheimer v. Hagar, 129 Kan. 518, 520, 283 Pac. 489; 2 Metchem on Agency, 2d ed., Brokers, § 2425.) In the first Karr case, supra, it was held: “The ordinary rule that a real-estate agent is entitled to his commission when he procures a purchaser who is ready, willing, and able to buy, or when he brings a buyer and seller together, who makes a bargain on different terms than those theretofore dictated to the agent, does not apply where the agent’s commission is governed by a special contract between him and his principal.” (Syl. 12.) In the course of the opinion it was said: “In arriving at this conclusion the court is not unmindful of its long-established, liberal attitude towards the rights of real-estate agents who bring buyer and seller together, whereby a bargain is effected, although not upon the terms originally given to the agent. (Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Plant v. Thompson, 42 Kan. 664, 22 Pac. 726; Grimes v. Emery, 94 Kan. 701, and citations, 146 Pac. 1135.) The case before us is circumscribed by the terms of the specific contract under which — and only under which — the defendants were to be obligated (Fultz v. Wimer, 34 Kan. 576, 9 Pac. 316);....” (p. 695.) (Italics inserted.) (See, also, opinion on rehearing.) The trial cóürt made findings of fact and conclusions of law. It is unnecessary to discuss them in detail. The errors in essential findings and conclusions resulted from the erroneous interpretation of the commission contract, which was the basis of the lawsuit. Appellant raised that issue throughout the trial by a motion to strike portions of the petition; a motion to require the petition to be made definite and certain by setting forth the contents of “the lease now in negotiation”; a motion requiring appellee to elect whether he would stand upon the express contract or upon quantum meruit; a demurrer to plaintiff’s evidence; motion for findings of fact and conclusions of law; motion to strike certain findings and conclusions; motion for judgment, and, finally, by motion for a new trial. These attacks were erroneously overruled, at least as to their essential features which involved the interpretation of the contract, with one exception which pertained to the motion to elect. The order overruling that motion was not erroneous,' as appellee then stated he was standing upon the commission contract which he had pleaded. The court, at least at that stage of the trial, adopted that theory, but continued to misinterpret the contract. Upon the theory adopted plaintiff clearly failed to establish the right to recover any commission. Whether plaintiff could have recovered a different commission upon the theory of an implied contract for negotiating the lease which was ultimately executed, if he had sued upon that theory, we need not determine. That is not the issue before us. Appellee chose to attempt to recover a specified commission for services in negotiating a lease which was eventually consummated and he elected to seek that relief upon the-basis of the express contract. It was his province and not ours to determine the theory upon which he would seek a recovery. No authorities from this jurisdiction, cited by appellee, are inconsistent with the conclusion we have reached. It will serve no useful purpose to remand this action for retrial. Under such circumstances, this court may order final judgment on reversal. (Security Benefit Ass’n v. Swartz, 146 Kan. 267, 70 P. 2d 16, and cases therein cited.) The judgment is reversed with directions to enter judgment for appellant.

The opinion of the court was delivered by Harman, C.: This is a mandamus action brought on relation of the attorney general of Kansas arising out of the refusal of the board of commissioners of the city of Coffeyville to adopt or, in the alternative, to submit to the electorate by way of referendum, an ordinance proposed by petition. The initiative ordinance would bar all activity within the city relating to that which is commonly known as urban renewal and development under state and federal law (K. S. A. 17-4742, et seq., and Title 42, U. S. C., Chap. 8A, § 1441, et seq.) Upon hearing the matter the trial court denied an order in mandamus and plaintiff has appealed. The case was submitted to the trial court on the pleadings, certain exhibits and stipulations, which revealed the following: On June 1, 1966, pursuant to K. S. A. 17-4746, the city commissioners of Coffeyville adopted Resolution No. 1024 finding blighted and slum areas existed within the city and that rehabilitation of such areas was in the interest of the public health, safety, morals and welfare of the residents of the city. On the same day the city, pursuant to K. S. A. 17-4756, adopted another resolution electing to have its urban renewal powers exercised by an urban renewal agency and in accord with 17-4757 it created such an agency composed of five commissioners. During the period from August 31, 1966, to June 27, 1967, the city commission, by resolution, approved the undertaking of surveys and planning for an urban renewal project described as the Fountain Plaza project, authorized and approved the filing by the agency of several applications for advances of funds from the federal government to defray the cost of surveys and plans for urban renewal, approved a general neighborhood renewal plan, authorized the use of city funds for planning, secured authority to issue $30,000 in no-fund warrants of the city and paid the sum of $30,000 to the local urban renewal agency. On June 5, 1967, the local agency entered into two separate contracts with private persons for the furnishing of technical services and studies in connection with the general neighborhood plan. On August 14, 1967, the agency received notice from the federal urban renewal agency of a reservation of capital grant funds for the segment known as Fountain Plaza Project A in the amount of $5,710,-000, and allocating the requested funds for financing surveys and planning. On September 26, 1967, the local agency contracted with the federal government for the advance of funds to aid in financing the cost of surveys and planning in connection with the Fountain Plaza A project in the amount of $388,061. Thereafter, between October 25, 1967, and August 23, 1968, the local agency entered into eight separate contracts with private persons for the furnishing of various types of technical services and planning. On June 4, 1968, the local agency contracted with the federal government for the advance of funds for planning the Fountain Plaza General Neighborhood Renewal project in the amount of $84,611. On September 5, 1968, the city commission published a notice of public hearing on Fountain Plaza A project in the Coffeyville Journal. On September 10, 1968, the city planning commission approved the project as being in conformity with its comprehensive development plan. Also in September the agency entered into two additional contracts for the furnishing of services and office facilities. On September 18,1968, the city commission held a public hearing on Fountain Plaza A project, pursuant to the published notice, at which various persons appeared and made known their views. A petition was presented requesting that the matter of urban renewal be voted upon at the November general election. The city commission ruled this petition was invalid but tabled a resolution approving the urban renewal and the location of the project. On the morning of October 9, 1968, the petition which forms the basis of this action was filed in the city clerk’s office. It provided: “We, the undersigned, legally qualified voters and electors of the City of Coffeyville, Kansas, do respectfully request that the following Ordinance be passed by you as the governing body of the City of Coffeyville, Kansas, without alteration, or submitted without alteration by such governing body to a vote of the electors of said City as and within the time provided by law, for adoption or rejection, said Ordinance being as follows, to-wit: “ORDINANCE NO. _ “An Ordinance Relating to the Exercise of Urban Renewal Project Powers by the Governing Body of the City of Coffeyville, Kansas: “Be It Ordained by the Governing Body of the City of Coffeyville, Kansas: “Section 1. That no powers heretofore or hereafter conferred upon the City of Coffeyville, Kansas, under the provisions of Chapter 17, of the Kansas Statutes Annotated shall be exercised for the implementation of Public Law 89-117 (so-called Housing and Urban Development Act of 196S) or subsequent Federal legislation of like effect. “Section 2. That resolution No. 1024 adopted by the governing body of the City of Coffeyville, Kansas, on the 1st day of June, 1966, pertaining to slum or blighted areas in the City and the necessity of rehabilitation, conservation or redevelopment, or a combination thereof, of such area or areas, in the interest of public health, safety, morals and welfare of the residents of Coffey-ville, Kansas, is hereby repealed.” The petition contained 1,527 signatures. Later during its regular meeting on the same day the city commission by resolution approved the urban renewal plan and the location previously submitted, and the commission and the local urban renewal agency entered into a cooperation agreement respecting the Fountain Plaza A project. On October 23, 1968, the city commission received advice of the city clerk that the petition presented on October 9, 1968, contained the requisite number of valid signatures pursuant to K. S. A. 12-3013 but the commission formally denied the. petition. On December 31, 1968, plaintiff filed this action in mandamus to compel submission of the proposed ordinance to the electorate. In their answers the defendant boards asserted several defenses including the doctrine of laches, unconstitutional impairment of existing contracts, that the proposed ordinance was administrative rather than legislative in nature and therefore not subject to referendum, and the title of the proposed ordinance was defective. In its ruling September 9, 1969, denying an order in mandamus the trial court made certain findings of facts and conclusions of law. It found, preliminarily, that the municipality had proceeded in compliance with K. S. A. 17-4743 to the date of the filing of the action and also that the proceedings by the plaintiff were in conformity with K. S. A. 12-3013, our initiative and referendum statute with respect to city ordinances. The court further found as a fact that the municipality was contractually bound at the time plaintiff's petition was filed. It concluded the adoption of the proposed ordinance would unconstitutionally impair existing contracts. The trial court also considered the question of laches, stating: “The fact is that the plaintiff’s petition was filed over two years after the initiating ordinances were passed by the City Commission. If, as the plaintiff contends in the case of the proposed ordinance, these initiating ordinances were legislative in nature, the right to referendum under K. S. A. 12-3013 would have come into being with their passage. Certainly, a delay of over two years in the face of widely publicized action by the City and the Urban Renewal Board, permitting the complex contractual ánd planning arrangements by and between these bodies, the Federal Government and private parties to be entered into and acted upon could hardly be characterized as anything but unconscionable delay.” The trial court concluded the doctrine of laches was applicable as a defense. It considered but declined to rule upon the question whether the proposed ordinance is legislative or administrative. Plaintiff-appellant makes several contentions. He asserts the trial court erred in finding the municipality was contractually bound, arguing appellees had only contracts relating to surveys and planning and that the real binding contract on the project did not come into existence until after the petition was filed. He contends the initiative ordinance would not unconstitutionally impair existing contracts because the contracts were subject to interruption of the city failed to approve the project, and there was nothing prior to the October 9, 1968, action by the city which amounted to any commitment on appellees’ part. The trial court had before it all the contracts entered into by appellees prior to October 9, 1968. Except for certain ones with the federal government, they are before us only in highly summarized fashion, that is, they are described only by date, total amount, parties and general nature of the subject matter. The trial court found from the evidence before it that the municipality was contractually bound at the time appellant’s petition was filed. We cannot say there was no commitment on appellees’ part prior to October 8, 1968, even though the record before us does not demonstrate with particularity the nature and extent of appellees’ obligations and the legal consequences. It should first be stated that Article I, Section 10, of the federal constitution forbidding a state to pass any law impairing the obligation of contracts is applicable to political subdivisions of the state. In Northern Pacific Railway v. Duluth, 208 U. S. 583, 52 L. ed. 630, 28 S. Ct. 341, we find this: “It is no longer open to question that municipal legislation passed under supposed legislative authority from the State is within the prohibition of the Federal Constitution and void if it impairs the obligation of contracts.” (p. 590.) And the magnitude or degree of the impairment is of no consequence (Ohio State Life Insurance Co. v. Clark, 274 F. 2d 771). Appellant also contends the contracts are of a kind where a city may be permitted to renege upon them and instead respond in damages for the breach. Virtually the same arguments presented here by appellant were advanced in an analogous situation in State, ex. rel., v. Salome, 169 Kan. 585, 220 P. 2d 192, and answered adversely. There, in response to federal legislation, the city of Wichita and Sedgwick county had instituted action in 1945, in the form of resolutions, to carry out a program for flood protection of the area. Later the city and county had entered into contracts with each other and with the federal government toward accomplishment of the project, had expended money for and taken necessary proceedings to acquire rights in lands, and had incurred other expense. In 1949 dissident electors submitted petitions calling for repeal of the basic resolutions on which the proj'ect was being performed, and brought mandamus when they were not honored. Among other things the city and county in defense pleaded laches and impairment of contracts. This court refused to compel the requested referendum. In arriving at this decision consideration was given to the issue of repudiation of contracts affecting rights of third parties and the fact the action dealt with a comprehensive plan of public improvement in which the right of another municipality was involved, where each had carried out its part of the whole proj'ect over a period of more than four years and each had expended large sums of money, a great part of which would be wasted or lost if one of the parties to the arrangement could or would be permitted to withdraw. This court emphasized: . . the writ [of mandamus] is a discretionary one and does not issue as a matter of right, nor unless the defendant’s legal duty is clear, and if it is not clear the writ should not issue, the burden of showing the right to relief being on the plaintiff.” (p. 595.) Appellant asserts the doctrine of laches is inapplicable here because it could not be known just what was going to happen until the public hearing September 18, 1968, and therefore the referendum request was timely filed. This contention does not take into account the fact the thrust of appellant’s objection is not toward any particular urban renewal project but is against urban renewal generally. The situation here is not that which was shown in Offen v. City of Topeka, 186 Kan. 389, 350 P. 2d 33, or Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, cases demonstrating the individual citizen’s remedy against arbitrary, capricious and unlawful action of officials carrying out specific urban renewal programs. Moreover, as already indicated, the trial court in effect found as a fact that appellees’ actions in advancing urban renewal were “widely publicized”, which finding apparently stemmed from the fact the court had before it exhibits reflecting the local publicity given the various steps over a period of more than two years and four months. It found thirty-three specific steps that were taken by appellees and the appropriate federal agencies which were made public during the period. This court has long recognized the doctrine of laches as a defense to mandamus (see 4 Hatcher’s Kansas Digest, rev. ed., Mandamus, § 108; 6A West’s Kansas Digest, Mandamus, § 143 [2]). Here the petition for the proposed ordinance was filed more than twenty-eight months after the urban renewal program was officially launched, and after appellees along with the federal government had expended much time and money in widely publicized actions which were essentials in the shaping of an urban renewal project. Contracts with private entities had been made as well as those which were purely intergovernmental. We are told more than $180,000 has been expended. In addition, the city remains contractually obligated. Under these circumstances we cannot disturb the trial court’s ruling the proposed ordinance would unconstitutionally impair existing contracts, and further, that the doctrine of laches bars the requested relief. The determination of other matters raised by the parties would not affect the outcome of this appeal. The judgment is affirmed. APPROVED . BY. THE. COURT.

The opinion of the court was delivered by Fontron, J.: In 1964, the petitioner, Vincent Lee, was convicted of three charges of first degree robbery. He appealed to this court, where the convictions were upheld. (State v. Lee, 197 Kan. 463, 419 P. 2d 927.) Subsequently, Mr. Lee filed this action under K. S. A. 60-1507 collaterally attacking the judgments. After an examination of the files and records in the case, the trial court found: (1) that petitioners motion presented no constitutional question of law or fact which required appointment of counsel, and (2) that the files and records conclusively showed that Lee was entitled to no relief and that no evidentiary hearing was required. This appeal followed. Two points are raised on appeal: (1) that petitioner’s constitu tional rights were violated when the fact of his religion was raised at the trial, and (2) that his constitutional rights were violated when members of his race were purposely excluded from the jury at his trial. As to the first point it is sufficient to point out that the same issue was raised in Mr. Lee’s former appeal and was determined adversely to him. Supreme Court Rule No. 121 (c) (201 Kan. xxxiii) provides that a proceeding under section 60-1507 is not to be used as a substitute for a second appeal. This rule has been applied in a number of cases, (Hanes v. State, 196 Kan. 404, 411 P. 2d 643; Miles v. State, 195 Kan. 516, 407 P. 2d 507; Brown v. State, 198 Kan. 527, 426 P. 2d 49) and is applicable to the present case as well. We pass to petitioner’s second contention, i. e., that members of the Negro race were purposefully excluded from the jury at his trial. This court has recently held that a Negro accused of crime is not constitutionally entitled to be tried by a jury containing members of his own race; that his constitutional rights in such regard are not infringed, nor is he subjected to invidious discrimination except where Negroes are purposefully excluded from the jury which tries him. (State v. Clift, 202 Kan. 512, 449 P. 2d 1006; Scoggins v. State, 203 Kan. 489, 454 P. 2d 550.) See, also, Woods v. Munns, 347 F. 2d 948. Although the petitioner alleges “purposeful discrimination” we are not able, from the record before us, to fault the trial court for concluding without an evidentiary hearing that the files and records in the criminal prosecution conclusively showed Lee was not entitled to relief. He listed no witnesses or other evidence, as called for in paragraph 11 of the form appended to Rule 121, on which he expected to rely in establishing that Negroes were excluded from the jury, either purposefully or otherwise. From such omission it may logically be assumed that Mr. Lee intended to rely solely on his own unsupported testimony. (Lieser v. State, 199 Kan. 503, 430 P. 2d 243.) Moreover, nowhere in the petitioner’s brief, or in his oral argument, was it suggested that corroborating proof was available. A petitioner seeking relief under K. S. A. 60-1507 bears the burden of establishing his right to relief by a preponderance of the evidence, and his uncorroborated statements are insufficient to sustain that burden. (Rule 121 [g].) This concept is firmly embedded in our decisions. (Lieser v. State, supra; Angle v. State, 202 Kan. 142, 446 P. 2d 832.) No good reason has been advanced in this case for changing the rule. The judgment of the court below is affirmed.

The opinion of the court was delivered by Fontron, J.: This case now makes its second appearance before the court. On February 13, 1967, the defendant, Thomas M. Kidwell, was convicted by a jury of first degree murder in the death of his wife. The judge who presided at that trial set the conviction aside and granted a new trial because of trial errors. On appeal by the state, the order granting the defendant a new trial was affirmed by this court in State v. Kidwell, 199 Kan. 752, 434 P. 2d 316. On December 15, 1967, the charge against Kidwell came on for trial a second time, and a jury was selected to try the case. On December 18, 1967, the state moved to amend the charge against Kidwell to first degree manslaughter. Evidence was introduced before the court in support of this motion, and the motion was sustained. Thereupon the defendant, who throughout all the proceedings was represented by two experienced attorneys of proven competence, entered his plea of guilty to manslaughter in the first degree. This plea was accepted and sentence was deferred to January 2, 1968. On January 2, the defendant and counsel being present, the court sentenced Mr. Kidwell to the Kansas State Penitentiary for a term of five to twenty-one years, and referred him to the Kansas Reception and Diagnostic Center for evaluation. At this time, also, the court continued the defendant’s application for probation pending receipt of a report from the Diagnostic Center. On April 24, 1968, on motion of the defendant, himself, the trial court vacated the sentence of January 2, 1968, and ordered Mr. Kidwell returned to Shawnee County for further proceedings. On June 3, 1968, the defendant’s application for probation was heard by the judges of the Shawnee County District Court sitting en banc and on June 14, 1968, probation was denied. The court declined at this time to set Mr. Kidwell’s plea of guilty aside, and again proceeded to sentence him to a term of five to twenty-one years imprisonment in the state penitentiary, with the effective date of sentence being October 3, 1967. The present appeal followed. The defendant first contends the trial court erred in imposing sentence against him on June 14, 1968, after having vacated the sentence which was pronounced the preceding January. This claim appears to be based on our decision in Veronee v. State, 193 Kan. 681, 396 P. 2d 360, wherein we held that while a sentencing court is empowered by K. S. A. 62-2239 to modify a sentence by reducing it, the court may not modify the same by increasing the penalty. However, the principle enunciated in Veronee has no application whatever to the facts of the present case. No increase in the prior sentence was effected by the sentence pronounced on June 14. The term imposed on June 14—not less than five nor more than twenty-one years—was exactly the same as the sentence imposed on January 2. In addition, the trial court gave full credit on the June 14 sentence for all the time which had transpired since the sentence previously pronounced on January 2, as well as ninety days for time spent while awaiting trial. These credits are reflected in the provision that the effective date of sentence be October 3, 1967. Obviously the trial court did not lose jurisdiction to impose sentence by reason of its prior order of vacation. The vacation order was made on the defendant’s own motion and for his benefit. It is settled and salutary law that a litigant may not avail himself of error which he himself has invited. (Smith v. Veeder Supply Co., 137 Kan. 124, 19 P. 2d 699; Murfin Drilling Co. v. Poe, 191 Kan. 637, 383 P. 2d 972; State v. Reddick, 7 Kan. 143; State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Lintner, 183 Kan. 433, 435, 327 P. 2d 848; State v. Ingram, 199 Kan. 16, 427 P. 2d 500.) It is next contended that the trial cotut erred in accepting Mr. Kidwell’s plea of guilty to first degree manslaughter. There is no justification for this claim. The record discloses the court went into great detail in ascertaining the defendant’s understanding of his legal rights and his awareness of the effects of a guilty plea. Moreover, the defendant was at all times represented by capable and conscientious counsel who, according to the defendant himself, had fully consulted with him and with whose legal services he was satisfied. More than once the defendant declared in court that he felt he was guilty of first degree manslaughter. Neither can we fault the trial court in rejecting the defendant’s request to withdraw his plea of guilty after his application for probation was denied by the court en banc. Permission to withdraw a guilty plea rests within the trial court’s sound discretion. (State v. Downs, 185 Kan. 168, 341 P. 2d 957, and cases cited therein.) We discern nothing in the circumstances shown to exist in this case which would indicate an abuse of discretion. We are aware of the defendant’s charges that the state withheld evidence favorable to him. Because of such action, the defendant reasons, his plea was improperly obtained, and should be declared invalid. We consider this contention without substance. The evidence to which Mr. Kidwell refers consists of a letter addressed by him shortly before the homicide to his wife’s former husband, whom Kidwell suspected was having an affair with his wife. The letter was found in the victim’s purse. Without reciting its contents, we do not view the letter as having the effect urged by the defendant. It was not addressed by the defendant to his wife and its tone, in our judgment, is just as consistent with the state’s theory of first degree manslaughter as with the defendant’s present protestations of innocence. Neither of the two federal decisions cited by the defendant is factually in point. In both Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 and Giles v. Maryland, 386 U. S. 66, 17 L. Ed. 2d 737, 87 S. Ct. 793, the evidence was withheld during the trials of the respective defendants, and the nature of the evidence withheld in each case was entirely dissimilar to the contents of the letter which the defendant contends was exculpatory in nature. Finally we note the defendant’s argument that the facts surrounding the homicide do not amount in law to manslaughter. To support his thesis the defendant points out that Judge Marion Beatty, who presided at the first trial, declined to instruct the jury on the offenses of manslaughter. We know not the basis for Judge Beatty’s ruling, but in any event his view of the evidence produced at the first trial would in nowise be controlling on Judge Carpenter, who presided at the later proceedings. The fact remains that the defendant, after consultation with capable counsel, entered a voluntary plea of guilty to first degree manslaughter, and a competent judge, after hearing evidence on the matter, accepted that plea. The defendant’s argument lacks substance. We find no error in this case to warrant reversal. The judgment of the court below is affirmed.

In a letter dated July 6, 2004, to the Clerk of the Appellate Courts, respondent, Lee Russell Stanford, Jr., of Salina, Kansas, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281). At the time the respondent surrendered his license a complaint had been docketed against him and was being investigated by the Disciplinary Administrator s office. The complaint contained allegations that the respondent, in his capacity as the executor of an estate, paid himself attorney fees and a partial payment of his share of the estate without an order from the court. This court, having examined the file of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred. It Is Therefore Ordered that Lee Russell Stanford, Jr., be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Lee Russell Stanford, Jr., from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286). Dated this 15th day of July, 2004.

The opinion of the court was delivered by Wedell, J.: This was a proceeding in mandamus to compel the members of the board of managers for the Kansas soldiers’ home at Fort Dodge to admit to that institution the wife of the plaintiff, the latter being a Spanish American War veteran, who was already an inmate of that institution. The plaintiff prevailed, and defendants appeal from the order sustaining plaintiff’s motion to quash defendants’ answer to the alternative writ and from the judgment granting the peremptory writ. The pertinent averments of the alternative writ, in substance, were: Plaintiff is a veteran of the Spanish American War and in the year 1934 was admitted to and has ever since been a member in good standing of that home; it is the duty of defendants to admit to membership therein all persons legally entitled thereto, and the wife of plaintiff is legally entitled to such membership; in the month of April, 1938, plaintiff married Olive Johnson, fifty-six years of age, who is wholly dependent upon him for support and maintenance; on April 3,1938, plaintiff and Olive Johnson presented their applica tion for the admission of Olive Johnson, which application defendants rejected; plaintiff has no adequate, plain and complete remedy at law and will suffer irreparable damage and injury if the court does not compel defendants to admit his wife to the home. The answer admitted all the averments of the alternative writ except that the wife of the plaintiff was legally entitled to admission to the home. The answer in substance asserted defendants did not act on the application in a purely ministerial capacity, but that on the contrary their duties required them to exercise, and that they did exercise, prudence, discretion and judgment, in determining the eligibility of the applicant for admission, and further alleged: “Olive Johnson, wife of plaintiff, was not then and is not now entitled to admission to membership in said Kansas soldiers’ home, for the reasons following, to wit: “1. At the time the said Fanas C. Johnson, plaintiff, made application for membership in said home, he was then a married man, but his-wife was one other than Olive Johnson. Said wife was then dependent upon the said Fanas O. Johnson for her support. The application of said Fanas C. Johnson for admission to said home included the request that his wife at that time be also admitted to said home as a member of his family, and said wife was so admitted. The said Fanas C. Johnson and his wife were received into said home and continued to remain as members thereof until the death of said wife. That the said Fanas C. Johnson, as a widower, continued to reside in said home from the time of the death of his wife until his marriage to the said Olive Johnson, and still continues to remain a member of and resident of said home under his original application and the order admitting him and his wife to membership in said home about the month of September, 1934. “2. That the said Fanas C. Johnson while a member of said home, on April 30, 1938, married the above-named Olive Johnson and soon thereafter said plaintiff made application for the said Olive Johnson to be admitted to mem- ■ bership in said home. At the time of the marriage of the said Olive Johnson and said plaintiff, said Olive Johnson was not a member of said home or the Mother Biekerdyke annex, or entitled to admission thereto or membership therein, and was not, prior to her marriage to the said Fanas C. Johnson, a member of his family or dependent upon him for support. “3. That the said plaintiff is not an honorably discharged soldier, sailor or marine who served in the army or navy of the United States during the war of the rebellion, and has not reached the age of 65 years. “4. The statutes of the state of Kansas governing eligibility to membership in said home of soldiers, sailors and marines, and such members of their families as are dependent upon them for support, provide that admission to said institution shall be subject to such rules and regulations as may be established by the board of managers for the management and government of said institution, and upon the approval of application for admission by said board of managers. That prior to the death of the wife of the said plaintiff, who- was originally admitted to membership in said home as the dependent member of the family of said plaintiff, and prior to the marriage of the said Olive Johnson and the above-named plaintiff, the board of managers of the said home adopted the following rule, which rule was in effect at the time of the marriage of said Olive Johnson and said plaintiff and at the time of plaintiff’s application for membership of the said Olive Johnson in said home, and at the time said application was rejected, and still remains in full force and effect, to wit: “ ‘Section 312. No veteran shall be eligible for admission into the Kansas soldiers’ home who has been married to his wife for a period of less than two years prior to the time of admission. “‘Any widow or widower already admitted into either the Kansas soldiers’ home or the Mother Bickerdyke annex, must submit a new application for membership in the event such member marries any person not already a member of the Kansas soldiers’ home or the Mother Bickerdyke annex.’ "That said rule was adopted in the judgment and discretion of said board of managers as a regulation calculated to be for the best interests of said home in the management and government thereof, and to have admitted the said Olive Johnson as a member of said home or to now so admit her would be a violation of said rule and in disregard of the welfare of said institution with respect to the management and government thereof. “5. The statutes of the state of Kansas governing eligibility to membership in said home provide only for the granting of membership upon the application of honorably discharged soldiers, sailors and marines, and the status of such applicants is fixed and determined by said statutes as of the time said soldier, sailor or marine makes application for and becomes a member of said home, and makes no provision authorizing the admission to said home of a wife of a member where said marriage occurs while said soldier, sailor, or marine is a member of said home and the marriage is to one not a member of said home. “No provision is made by law authorizing a soldier, sailor or marine while a member of said home, to acquire a dependent by marriage to one not a member of said home, or the Mother Bickerdyke annex, and thus entitle said wife so married to come into said home as a dependent of said soldier, sailor or marine, unless said soldier, sailor or marine served in the army or navy of the United States during the war of the rebellion, and said wife so married has reached the age of 65 years, and said ex-soldier, or ex-marine, or ex-sailor has lived in the state of Kansas not less than ten years.” The ground of the motion to quash defendants’ answer was that it failed to constitute a defense to the alternative writ. The motion to quash the answer admitted all facts properly pleaded therein. We therefore start with the conceded fact that defendants did not act unreasonably, arbitrarily or capriciously, but in good faith in rejecting the application for admission. Plaintiff does not contend the rules established by defendants are unreasonable. He insists defendants are without authority to make any rules which affect the right of admission to the home. The main question presented in the instant case is, therefore, whether this particular wife of this plain tiff is entitled to admission to the home as a matter of right and notwithstanding the exercise of reasonable discretion by defendants in rejecting the application. It is conceded by the parties the answer turns mainly upon the proper construction of two statutes. The pertinent portion of the first statute, G. S. 1935, 76-1908, provides: “All honorably discharged soldiers, sailors and marines, who served in the army or navy of the United States during the war of the rebellion, war with Spain, Philippine insurrection, Boxer uprising or World War, and who were honorably discharged, who may be disabled by disease, wounds, old age, or otherwise disabled, and who have no adequate means of support, and who by reason of such disability are incapacitated from earning their living, and who would otherwise be dependent upon public or private charity, together with such members of their families as are dependent upon them for support, shall be entitled to admission to such institution, subject to the rules and regulations that may be established by the board of managers for the management and government thereof, and upon the approval of their application by the said board of managers: . . .” (Italics inserted.) The second statute, G. S. 1935, 76-1915, reads: “That from and after the taking effect of this act no wife of any soldier shall be admitted to the home as a member unless she has attained the age of fifty years, except in special cases where the wife of applicant is a confirmed invalid, or the soldier making the application is a confirmed invalid and needs the constant attention of his wife: Provided, That the wife of any honorably discharged soldier, sailor or marine who served in the army or navy of the United States during the war of the rebellion shall be eligible to admission, irrespective of the time of her marriage with said ex-soldier, ex-sailor or ex-marine, and irrespective of her financial standing: Provided, That said wife has reached the age of 65 years and that said ex-soldier, ex-sailor or ex-marine has lived in the state of Kansas not less than ten years. Hereafter no girls shall be admitted to the institution after they reach the age of fourteen years, or retained after they reach the age of sixteen years; and boys shall not be admitted after they reach the age óf twelve years or retained after they reach the age of fourteen years, unless the same be incapable of earning their support by their own labor: Provided, That there is nothing in this act that shall be construed to apply to or prevent the marriage of a soldier or soldier’s widow, when both are already inmates of the state soldiers’ home, or the Mother Bickerdyke annex, provided said soldier’s widow has reached the age of fifty years at the time of marriage.” (Italics inserted.) The Kansas soldiers’ home was established in 1889. (Laws 1889, ch. 235, § 1.) In 1929 the legislature (Laws 1929, ch. 269, 270) amended both R. S. 1923, 76-1908 and 76-1915. The statutes are in pari materia and must be considered together if such consideration aids in ascertaining the legislative intent. (Voran v. Wright, 129 Kan. 1, 281 Pac. 938; Rehearing, 129 Kan. 601, 284 Pac. 807.) The cardinal canon of construction, to which all mere rules of interpretation are subordinate, is that the intent, when ascertainable, governs. (State v. Bancroft, 22 Kan. 170; Railway Co. v. Cowley County, 103 Kan. 681, 176 Pac. 99.) Plaintiff insists that, as a member of the home, his marriage at any time to a woman fifty years of age- who is dependent upon him for support, renders her immediately eligible to membership in the-home and that defendants have no discretion in the matter of her admission. On the other hand, defendants insist that manifestly was not the legislative intent. They first contend the eligibility of a wife to membership in the home must, under a reasonable construction of G. S. 1935, 76-1908 and 76-1915, be determined as of the date of the soldier, sailor or marine’s original admission to the home, except in the two specific instances provided in G. S. 1935, 76-1915, and that plaintiff’s wife admittedly does not come within either of those two exceptions. Second, defendants contend mere eligibility to membership of a soldier, sailor or marine, or of a dependent member of his family, does not under the provisions of G. S. 1935, 76-1908, in and of itself, compel admission, but that actual admission is subject to reasonable rules and regulations which may be established by the board of managers. Plaintiff contends the mies and regulations which defendants may establish under G. S. 1935, 76-1908, pertain solely to the management and government of the home after the applicant has been admitted. The construction is too restricted. The wording of the statute is, “shall be entitled to admission . . . subject' to the rules and regulations that may be established by the board of managers for the management and government thereof, and upon the approval of their application by the said board of managers.” Reasonable rules and regulations pertaining to the admission of eligible members may at times be highly necessary in order to insure the proper management and government of the home. It is common knowledge that the dependency of veterans is again increasing at a rapid rate. Under plaintiff’s contention children of a veteran, regardless of their age, and his dependent parents as well, if members of the veteran’s family and dependent upon him for support, could all demand immediate admission to the home as a matter of right irrespective of the limited capacity of the home and regardless of inadequate finances with which to operate the home. Under plaintiff’s theory a veteran in the home might also adopt a dependent child or children and insist upon his or their immediate admission as a matter of right. In addition to the provision of G. S. 1935, 76-1908, pertaining to the rule-making power of defendants, it will be observed that statute also reads: “Shall be entitled to admission . . . upon the approval of their application by the said board of managers.” That provision is further evidence of the legislative intent that admission to the home was -not intended to be solely a matter of right. The wife of plaintiff does not come within any of the exceptions contained in G. S. 1935, 76-1915, pertaining to certain wives of veterans of the war of the rebellion nor does she come within the provision of that statute pertaining to the marriage of a soldier when both he and the widow he marries are already inmates of the home. It will be observed that under the first proviso of that statute the lawmakers clearly intended to make special provision for the wife of any honorably discharged veteran of the war of the rebellion. It expressly declared if the wife was sixty-five years of age and the veteran had lived in the state not less than ten years, the wife should be eligible to admission irrespective of the time of her marriage or her financial standing. A similar exception as to the date of marriage is made where both parties to the marriage are already inmates of the home.. These exceptions as to the date of marriage are further evidence of the legislative intent that wives other than those included within the exceptions should not be entitled to admission solely as a matter of right, and irrespective of the date of their marriage. The first portion of that statute provides no wife shall be admitted to the home unless she has attained the age of fifty years, except in the special cases enumerated. It does not make it mandatory, however, that every wife who has attained that age is entitled to admission as a matter of right, irrespective of the date of her marriage. In connection with the actual operation of the home it is well also to note the provisions of G. S. 1935, 76-1903. It reads: “The board of managers of the Kansas soldiers’ home shall prepare a system of government for said home, embracing all such rules and regulations as may be necessary for the preservation of order, enforcing discipline, and preserving the health of the inmates of said institution; and such regulations may be amended or supplemented by said board as occasion may require.” The state of North Dakota has a similar statute. A veteran who was not a dependent sought admission to the soldiers’ home of that state. Another statute of that state contained the following provision: “The object of the soldiers’ home shall be to provide a home and sustenance for all honorably discharged soldiers.” (Our italics.) In State, ex rel. Skeffington, v. Seigfried, 40 N. D. 57, 168 N. W. 62, that court said: “We, in short, entertain no question as to the power of the board to adopt rules of admission as well as of government, and we believe that the power conferred by the statute (§ 1781) to 'make rules and regulations not inconsistent with the constitution of the United States, or of this state for the management and government of such homes, including such rules as it shall deem necessary for the preservation of order, enforcing discipline and preserving the health of its inmates,’ is sufficiently comprehensive for the purpose. Surely rules which shall prevent overcrowding relate to the government of the institution, to the preservation of order, and the preservation of the health of its inmates, and surely a rule which prevents overcrowding by rejecting those who have other abundant means of support is not an arbitrary exercise of the power. It is to be remembered that for twenty years or more the control of the home has been in the hands of a board of trustees made up entirely of old soldiers. And it would be unreasonable to suppose that such a board would not have at heart the best interests of all of their old comrades, or to suppose that they would not have a rational conception of the real purposes for which the home was instituted.” (p. 65.) In a specially concurring opinion by Mr. Justice Robinson it was said: “The object of the statute was as far as practicable to provide a home for all of a certain class who need a home, but not for all such as-may apply regardless of their needs and the capacity of the home. Regardless of the word ‘all’ or any other word in the statute, it must be given a construction in accord with reason and common sense.” (p. 67.) In the instant case the r.eal question presented is not whether defendants abused their discretion in the establishment of rules and regulations for the management and government of the home, but whether the rule-making power of defendants extends to the subject of the admission of applicants to the home. We are convinced it does. Both parties have ably discussed the legislative history of the statutes involved. Such history may properly be considered as an aid in determining legislative intent. (State v. Kelly, 71 Kan. 811, 81 Pac. 450.) A review of the history of the statutes here involved, while interesting, does not affect the conclusion we have reached. The judgment allowing the writ must be reversed. It is so ordered.

The opinion of the court was delivered by Hoch, J.: This was an action by the beneficiary named in a life insurance policy to recover under the policy upon the death of the insured. A demurrer to the petition was sustained, and the plaintiff appeals. The question presented is whether in spite of default in payment of premium the policy was still in force through failure of the company to send the notice of intention to cancel the policy as provided in the statute. More specifically, the question is whether the terms of a new agreement for extension of time made between the company and the insured, subsequent to the date when the premium became due and payable, are controlling as against the statutory requirement of notice to cancel. An annual premium of $40.01 fell due on May 7, 1938, and was unpaid. On May 9 the company sent notice calling attention to the unpaid premium and stating that unless payment were made according to the terms of the policy the policy would be canceled. The policy provided for a thirty-day period of grace which would give the insured until June 7 to make payment. On May 10 the insured made remittance of $10.01 as partial payment. The company acknowledged receipt and submitted for execution a promissory note for $30.01 and a new agreement. The insured did not immediately return the note and agreement, and on June 27 the company again wrote him, stating that the matter would have to be attended to at once. On July 2 the signed note and agreement were returned. In the new contract the company agreed to accept the note and partial payment as a premium payment, provided the note were paid not later than July 7, and the insured agreed that if the note was not paid by July 7 the policy would lapse, that the company should retain the partial payment as part compensation for the privileges granted under the agreement, and further agreed that the company had given all notices required and that in further compensation for the extension of time for payment the insured waived any other notice in respect to the premium or the note. No further payment was made and the insured died on July 13. The appellant contends that the notice sent by the company of May 9, two days after the thirty-day period of grace began to run, did not comply with the statutory requirement as to notice; that therefore under the statute the policy was automatically continued in effect for six months, or until November 7, and that the new agreement did not and could not set aside the statutory requirement as to prior notice. In support of that contention appellant relies principally upon the holding of this court in the case of Wegner v. Federal Reserve Life Ins. Co., 130 Kan. 600, 287 Pac. 591. In that case the court had under consideration G. S. 1935, 40-410 and 40-411, which deal with the matter of cancellation of policies for nonpayment of premium and the necessity of notice of intention to cancel. Section 40-411 contains two provisions with reference to the necessity of notice. The first provision as to notice is apparently intended to apply specifically to cases where the policy itself does not provide for a thirty-day period of grace. In such cases the company, in order to cancel the policy for nonpayment, must send a notice that the premium, stating the amount thereof, is due and unpaid and that it is the intention of the company to forfeit or cancel the policy for such nonpayment, and the insured has thirty days thereafter within which to make payment. The other provision as to notice relates to the case of policies which by their terms provide for a grace period of not less than thirty days, and it is provided that such notice must be sent “not more than thirty days prior to the date specified in such policy when any premium will become due and payable without grace.” In the Wegner case it was held that in the case of policies which by their terms provide for the grace period a notice sent after the beginning of the grace period does not comply with the statute. Since the policy involved in the instant case had a provision for the thirty-day period of grace, we agree with appellant that the decision in the Wegner case is controlling and the notice sent on May 9 was ineffectual. The question remaining, however, and the real question in this case, is whether the terms of the new agreement, made after the premium became due and payable, are controlling in spite of the fact that the prior notice did not strictly comply with the statute. Appellee relied in the trial court and relies here principally upon the holding of this court in the case of Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 63 P. 2d 165, which was followed in Hildyard v. Mutual Life Ins. Co., 145 Kan. 197, 64 P. 2d 7, and in McMonagle v. Fidelity Mut. Life Ins. Co., 145 Kan. 816, 67 P. 2d 601. In those cases the court gave consideration to the force and effect of G. S. 1935, 40-416, which provides that a life insurance company may enter into subsequent agreements in writing with the insured for extension of time for payment of premium upon condition that failure to comply with the terms of the new agreement shall lapse the policy as provided in the agreement. It is unnecessary to quote at length from the opinions in those cases, where the question was fully considered. It was there held that the terms of the new agreement were controlling and that there was no requirement of formal notice of intention to cancel the policy when default had been made in payment as agreed upon in the subsequent agreement. Appellant urges that the cases there considered are to be distinguished from the case at bar for the principal reason that in those cases the prior statutory notices had been sent before the new agreement was made, while in the instánt case the statute had not been so complied with. While it is true that in the three cases, supra, the notice required by the statute had been sent prior to the making of the subsequent agreement, we find no substantial reason for saying that the holding in those cases is not applicable to the instant case. The essential holding of those cases was that G. S. 1935, 40-416, enacted subsequent to the enactment of the other sections dealing with notice, gave specific authority to make subsequent agreements extending time for payment of premium with the condition that failure to comply with the terms of the agreement should lapse the policy as provided in the agreement. The reasoning advanced in support of that view applies with equal force to the instant case. While the notice sent, in the instant case, was ineffectual under the statute because sent two days after the grace period began— although it apprised the insured of the company’s intention to cancel if payment were not made as provided — this fact did not prevent the company and the insured from making a new contract for extension of time for payment. To hold otherwise would be to impose a limitation upon the power to make the subsequent agreement, which section 40-416 itself does not contain. It was held in the three cases, supra, that the company and the insured, having the right, under section 40-416, to make the new agreement, the provisions therein contained must be given effect. In Brown v. Illinois Bankers Life Assur. Co., supra, the court said: “It must be assumed the legislature knew of the former statutes providing for grace periods and notices of forfeiture. When it framed the 1927 insurance code it retained in amended form the forfeiture provisions, R. S. 1933 Supp. 40-410 and 40-411. It went further, however, and made provision for a contract to supplement all of these provisions, and hence we now have R. S. 1933 Supp. 40-416. It expressly provides the condition upon which a subsequent agreement may be made, to wit: “ ‘. . . upon condition that failure to comply with the terms of such agreement shall lapse the policy as provided in said agreement.’ (Italics inserted.) “This statute either means what it says or it means nothing. It does not say ‘shall lapse the policy as provided by the policy,’ or ‘shall be forfeited as provided by previous sections of this act,’ but it expressly says, ‘shall lapse the policy as provided in said agreement.’ Now, this subsequent agreement gave insured thirty days, in addition to the grace period allowed in the policy. We cannot now arbitraria brush aside the later enactment providing for subsequent agreements and also the extension agreement made pursuant thereto, as constituting futile gestures.” (p. 676.) •Appellee calls attention to the-provision in section 40-416, which reads as follows: “said agreement shall not impair any right existing under the policy,” and contends that this includes the right to an automatic extension of the life of the policy for six months through failure of the company to send the prior notice in strict compliance with the statute. We cannot, agree with that view. To so interpret and apply the language quoted would nullify preceding provisions of the section. Whatever substantive rights under the policy the limitation may refer to, it obviously does not preclude an agreement specifically authorized, for extension of time for payment, conditioned upon lapsing of the policy if payment is not made “as provided in the agreement.” The demurrer to the amended petition was properly sustained and the judgment of the trial court is affirmed.

The opinion of the court was delivered by Allen, J.: This action was on two insurance policies issued by the Prudential .Insurance Company of America on the life of William Needham. One policy for $280 was issued May 26, 1928, and one for $140 was issued August 12,1929. William Needham, the insured, died intestate January 17, 1937. On March 5,1937, N. J. Wollard, public administrator, was duly appointed administrator of the estate of Needham. On May 12, 1937, the appellee herein brought an action against the Prudential Insurance Company on both policies. In the petition plaintiff alleged she had an insurable interest in the life of the insured, Needham, and that she was the beneficiary named in the policies. Both policies were payable to the executors or administrators of the insured. Both policies contained the following facility of payment clause: “It is understood and agreed that the said company may make any payment or grant any nonforfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred .expense on behalf of the insured, for his or her burial, or for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.” Attached, to the petition were two instruments in writing signed by the insured. These statements are identical, except as to the policy numbers. A copy in reference to one policy reads as follows: “For Abdi/ts Only “To the Prudential Insurance Company of America, Incorporated Under the Laws of the State of New Jersey, Home Office, Newark, New Jersey. January 4, 1934. “Edward D. Duffield, President. “I, the undersigned, insured under policy No. 74063236 in the above-named company, hereby 'request and authorize the said company, in event of my death prior to -the death of the person next hereinafter named, to pay the amount of benefit specified in said policy to Maude B. Turner, my (state relationship, if any)-and the receipt signed by said person, or other sufficient proof of such payment, shall operate in the same manner as the receipt or proof of payment described in said policy. “It is mutually agreed and understood, however, that nothing herein is to vary in any manner any of the provisions, agreements or conditions contained in said policy and the application therefor, especially the provision in the policy that the company may make any payment provided for in the policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same, anything herein to the contrary notwithstanding. Witness, H. Parrott, Agt.' (Signature) William Needham. “This form must not be sent to home office, but should be retained by. the holder of the policy and presented with the policy when claim is made.” On January 12, 1938, the Prudential Insurance Company filed a pleading entitled “Affidavit under chapter 60-118, General Statutes of Kansas, 1935.” This affidavit was'signed by Ralph M. James, agent of the Prudential Insurance Company; it admitted the issuance of the policies sued upon as alleged. It stated that both policies were lapsed for nonpayment of premiums, January 28,1935, but by virtue of their extended insurance provisions were still in force on the date of the death of William Needham, and that said company was indebted on account of the two policies in the total sum of $474.08. It stated that plaintiff was in possession of the policies,-together with a written request and authorization signed January 4, 1934, by the insured, authorizing and requesting that payment be made to plaintiff. It further stated that N. J. Wollard, administrator of the estate of William Needham, has furnished proof of his appointment, together with proof of loss, and made claims for the proceeds of the policies. That on account of said conflicting claims the policies had not been paid, and prayed for an order asking that N. J. Wollard be required tó appear and make .himself defendant; that the insurance company was ready to pay the money into court or comply with any order the court made concerning said sum provided it was released from liability. Thereupon Wollard, the administrator, filed an answer setting up a. claim to the proceeds of the policies. The case was tried to the court without a jury. At the conclusion of the trial the court made findings of fact and rendered judgment for the plaintiff. The court found that the plaintiff had an insurable interest in the life of the insured, William Needham. The administrator, as substituted defendant, contends that a change of the beneficiary in the policy would constitute a modification or change in the contract contrary to its express provisions. The general provision in the policy in reference to modification reads: “No condition, provision or privilege of this policy can be waived or modified in any case except by an endorsement hereon signed by the president, one of the vice-presidents, the secretary, one of the assistant secretaries, the actuary, the associate actuary, or one of the assistant actuaries. . . . No agent has power in behalf of the company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or by making or receiving any representation or information.” It is asserted that these provisions forbid any change or modification unless such modification be in writing signed by the authorized ' officers of the company. It is further contended that the instrument in writing executed by the insured under which plaintiff claims can possibly do no more than identify plaintiff as being within the classes designated in the facility of payment clause. We are unable to agree with these contentions. The instrument signed by the insured specified that “I, the undersigned, insured” .under the policy, “hereby request and authorize the said company, in the event of my death prior to the death of the person next hereinafter named, to pay the amount of benefit specified in said policy to Maude B. Turner,” and further specified that a receipt by her would amount to proof of payment. The company, by the subsequent language of the instrument, reserved the option to pay other persons under the facility of payment clause. As the option was not exercised, the integrity of assignment to Maude B. Turner remained unimpaired. The fact that the company paid the money into court could not impair or defeat any rights that she had. An assignment is the expression of intention by the assignor that his rights shall pass to the assignee. By the instrument in writing duly signed and delivered the insured manifested his intention to transfer his rights and claim under the policy to Maude B. Turner. The affidavit filed by the insurance company stated that the policies were in the possession of the plaintiff. This is not denied in the answer of the administrator. In Shawnee State Bank v. Royal Union Life Ins. Co., 127 Kan. 456, 274 Pac. 132, the right of the insured to assign and pledge a policy payable to his estate was recognized. The provision in the instrument of assignment that “nothing herein is to vary in any manner any of the provisions, agreements or conditions contained in said policy and the application therefor, especially the provision,” etc., as to the facility of payment clause, was patently made for the protection of the insurance company. In 31 C. J. 970, section 8, it is stated: “Beyond affording the company protection in paying to another, the facility of payment clause does not affect the beneficiary’s rights.” No provision in the insurance contract has been called to our attention which in any way affects or restricts the right of the insured to assign the policy or change the beneficiary. A duly executed assignment is in effect a change of beneficiary. (Penn. Mut. Life Ins. Co. v. Forbes, 200 Ill. App. 441.) The evident purpose of the instrument executed by the insured was to substitute Maude B. Turner as beneficiary under the policy. We know of no reason why the intention of the insured so manifested should not be followed. The judgment is affirmed.

The opinion of the court was delivered by Ti-iiele, J.: This was an action to contest a will. For grounds of contest it was alleged in the petition; (1) that the testatrix lacked testamentary capacity, (2) that the will was procured by undue influence, and (3) that the will was written or prepared by one who was the principal beneficiary and at a time when he was the agent of and occupied a position of confidence and trust to the testatrix, and that she had no independent advice with respect to her will. The trial court found all issues against the plaintiffs. The appeal was from the judgment generally, but in this court appellants concede there was conflicting evidence as to testamentary capacity and undue influence, and no contention is here made on those grounds. They do contend there was no dispute in the evidence as to the facts with relation to the third ground and that the trial court erred in not setting aside the will on that ground. The trial court made findings of fact covering all issues. We summarize and quote therefrom to the extent necessary to discuss appellants’ specifications of error. The testatrix, Melvina J. Hart, was the mother of the deceased father of the appellants, and the mother of the appellee, George B. Hart. Prior to the making of the will and until the death of the testatrix, he was his mother’s confidential agent and occupied a position of trust and confidence to her. At the time of making her will she was eighty years of age and in very poor health. About May 19, 1934, George B. Hart went to the office of Robert Garvin, a lawyer of St. John, Kan., and gave him information about the provisions of a will for Melvina J. Hart. Mr. Garvin prepared a will therefrom, and— “That thereafter, and on or about the 23d day of August, 1934, George B. Hart took his mother to Macksville, Kan., and at said time and place, Mrs. Hart consulted with Harve Breneman, one of her bankers, relative to said will. After Mr. Breneman explained the provisions of this will, paragraph by paragraph, Mrs. Hart informed Mr. Breneman that she was not satisfied with one paragraph of said will which pertained to the manner of disposing of any oil or gas that might be produced from the land she then owned. She then informed Mr. Breneman of the change she decided with reference to said paragraph, and Mr. Breneman took the original draft of the will' to the office of Mr. Robert Garvin, who redrew the will. That on the 24th day of August, 1934, the defendant, George B. Hart, again took his mother to Macksville in an automobile. They stopped in front of the bank, and George B. Hart went into the bank and informed Mr. Breneman that his mother was out in the car and wished to talk to him about the will. That Mr. Breneman read and explained to Mrs. Hart the changed paragraph, and that she said to him at that time that she was satisfied with the will. That Bieneman called Jay Smith, president of the Farmers and Merchants Bank of Macksville, Kan., to the car, and that Mrs. Hart then and there signed, declared and executed said will, and Mr. Breneman and Mr. Smith subscribed their names as witnesses to the execution of said will. “The evidence further shows that the defendant George B. Hart was the principal beneficiary under the terms of said will, but the evidence further proves that at the time the said Melvina J. Hart executed her will, she knew the contents of such will, and had independent advice with reference thereto. . . . The evidence fails to establish that George B. Hart used undue influence or in any way dominated the said Melvina J. Hart in the execution of said will. “That said will was duly admitted to probate, in the probate court of Stafford county, Kansas, on the 21st day of June, 1937." The trial court concluded as a matter of law that the will executed on August 24, 1934, was the legal and valid will of Melvina J. Hart, and entered judgment accordingly. Appellants’ motions for a new trial and for additional findings of fact were denied, and this, appeal followed. Without quoting either will, it may be said that under the first one drafted the testatrix gave her son, George B. Hart, a life estate in all her property and empowered him to execute new mortgages to cover any liens against her real estate existing at the date of her death. He was also given the right to execute oil, gas and mineral leases on real estate of which she died possessed. He was to receive rentals and royalties to the time of his death. After his death, the residue was bequeathed and devised to the children of her deceased son, Richard Frank Hart (appellants herein), and of her son, George B. Hart, share and share alike. The change made in the second draft, and which was duly executed by Melvina J. Hart, was to provide generally that George B. Hart should have the right to execute oil, gas and mineral leases on lands owned by the decedent, and any rentals and bonuses should be paid to him during his lifetime only. If there was production, no part should be paid to him, but should be paid to the remaindermen “even before the death of the said George B. Hart.” Appellants direct our attention to the latter part of G. S. 1935, 22-214, reading as follows: . . . “In all actions to contest a will, if it shall appear that such will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall be affirmatively shown that the testator had read or knew the contents of such will, and had independent advice with reference thereto.” They argue that under that statute appellee, George B. Hart, failed to sustain the burden of proving that Melvina J. Hart had independent advice with respect to her will prior to its execution. In support of their contentions, appellants rely almost wholly on Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087, wherein it was held: “When a will is prepared by the sole or principal beneficiary, who was the confidential agent, or who occupied a position of confidence or trust to the testator, the instrument will not be held valid as a will unless it be affirmatively shown (a) that the testator read or knew its contents, and (b) had independent advice with reference thereto. “The term ‘independent advice,’ as used in R. S. 22-214, means that the testa- ■ tor had the preliminary benefit of conferring fully and privately upon the subject of his intended will with a person who was not only competent to inform him correctly as to its effect, but who was so disassociated from the interest of the beneficiary named therein as to be in a position to advise with the testator impartially and confidentially as to the consequences to those naturally entitled to th'e testator’s bounty.” (Syl. [¶] 1, 2.) As will be observed from the findings quoted above, the trial court found generally that Melvina J. Hart knew the contents of her will and had independent advice with reference thereto. Appellants do not now contend she did not know the contents of her will, but only that appellee, George B. Hart, failed to show she had independent advice, as that term was defined in the above case. Therefore, we shall examine the record to determine whether the trial court’s finding has support in the evidence. As a preliminary, it may be noted the trial court found that George B. Hart went to the law office of Robert Garvin and gave him information about the provisions of the will. The finding is not specific as to whether he gave the information orally or in writing, whether he purported to outline his mother’s wishes, nor to what extent the information went. These matters may have been fully disclosed at the trial, but the abstracts are entirely silent thereon. It is shown that Mrs. Hart mentioned the matter of her will to a number of persons — among others, one Wiles, an officer of the bank where she transacted her business. In her conversations with him her son was not present. She told him she was giving consideration to making her will, but had not made up her mind how she wanted to do it; she asked him whether she could give her executor power to bind her estate on oil leases and mortgage renewals, and he advised her she could do so. After the first draft was prepared she had her son take her to the residence of Mr. Breneman, one of her bankers. The findings of fact as made by the trial court clearly disclose what transpired then and thereafter and need not be repeated. The findings are fully supported in the evidence. The evidence goes further, however, and shows that Mr. Breneman had had experience with making wills and had assisted in preparing wills. Mr. Garvin stated very specifically that he drafted the second will from information given him by Mr. Breneman; that George B. Hart was not present and that George B. Hart had never given him any information as to the second draft. The evidence further discloses that after the second draft was executed by the testatrix and duly witnessed she told Mr. Breneman to keep the will in the bank, and he took it, sealed it up and put it away. The facts in the case before us are materially different from those in Flintjer v. Rehm, supra, as a reading of the opinion in that case will disclose. While it is true in this case that the trial court found that George B. Hart gave information about his mother’s will to Mr. Garvin just before the first draft of a will was prepared, there is no specific finding that the resultant draft was written or prepared or in any manner dictated or controlled by George B. Hart. That draft was never executed. Outside of evidence that George B. Hart took his mother from her home to her bankers, there is no evidence that he did anything to induce her to make her will one way or another. Both of the times she talked to Mr. Breneman, George B. Hart was not present, and so far as the record as abstracted discloses, he did not know what changes she caused to be made in the original draft as embodied in the second draft which she executed. But assuming that he had prepared or written the will, or had caused it to be so prepared and written, the evidence discloses that she had independent advice. Appellants argue that there was no showing that Mr. Breneman was competent to give advice. While it was not very complete, there was a showing that he had had experience in making and preparing wills, and that he had been an employee of the bank for twenty-three years. The statute contemplates more than mere legal advice, and it is not to be interpreted that the independent advice must be given by one admitted to the bar or by one shown to be well versed in all the intricacies of the subject of wills. Although possibly negative in nature, the evidence also warranted the conclusion that Mr.' Breneman was so dissociated from the interest of the beneficiary that he was in a position to give the testatrix impartial and confidential advice as to the consequences of her proposed will on those naturally entitled to her bounty. The will is not complicated, it is not unnatural in its terms, it does not provide for a disposition of property such as would challenge attention as being manifestly unfair. The trial court had before it not only the witness and his competency, but also the will under attack. Its finding the testatrix had independent advice with reference to her will finds support in the evidence, and its judgment is affirmed.

The opinion of the court was delivered by Harvey, J.: An income taxpayer appealed to the district court from an order of the state tax commission denying certain deductions claimed by the taxpayer. After a hearing, at which many of the facts were stipulated, the district court rendered judgment for the tax commission. The taxpayer has appealed. The facts, some of which are more historical than directly pertinent, are not seriously controverted and may be stated as follows: In 1926 the Nutrena Feed Mills, Inc., was organized under the corporation laws of Missouri. Its principal business was the-manufacture and sale of feeds for livestock. Its principal manufacturing plant was situated in Kansas, and it was duly authorized to do business in this state. Its shares of stock were owned by Van Roy Miller and Harry E. Fisher. In 1930 it purchased another plant from the Schreiber Milling and Grain Company, located at Minneapolis, Minn., for $100,000, of which $10,000 was paid in cash and the balance represented by nine notes of $10,000 each, payable one each year, and secured by a mortgage on the Minneapolis plant. In 1931 and 1932 the business was not as profitable as it had been previously and differences arose between Miller and Fisher over the management of the business and the purchase of the Minneapolis plant. As a result of conferences between them it was agreed that the Nutrena Feed Mills, Inc., would sell to Miller, or to a corporation organized by him, its Kansas City, Kan., plant. Miller organized, under the laws of Missouri, the Nutrena Mills, Inc., and through it purchased the Kansas City, Kan., plant in November, 1932. Miller owned all the stock of the Nutrena Mills, Inc., and it was duly authorized to transact business in Kansas. In May, 1933, the Nutrena Feed Mills, Inc., defaulted on its $10,000 payment to the Schreiber Milling and Grain Company, and that company brought suit on the seven unpaid $10,000 notes against the Nutrena Feed Mills, Inc., in the federal court at Kansas City, Mo., and obtained judgment on those notes for approximately $75,000 sometime in the spring of 1934. While that action was pending Miller, who was the sole stockholder of the Nutrena Mills, Inc., the better, as he thought, to operate that company and finance it, organized the Miller Management Corporation (originally the Miller Investment Company) under the laws of Missouri. To this company was transferred all of the capital stock of Nutrena Mills, Inc. On June 23 (effective as of June 1), 1934, the Nutrena Mills, Inc., as first party, entered into a written contract with the Miller Management Corporation, as the second party, the material portions of which read: “1. First party hereby employs second party to furnish to first party complete managerial superintendence and executive control for the proper efficient economical operation of the business and affairs of the first party. Second party accepts such employment and agrees to furnish proper efficient control over and operation of the business and affairs of first party and to exercise its best efforts in providing the necessary control and supervision over the affairs of first party. It is the intention of the parties that first party will be relieved of the burden of the salary of its president, which burden will be assumed by second party. “2. Second party further agrees that it will at all times provide proper and sufficient financing for the operations of first party, either directly itself or through loans or other advances from banks or other parties. It is the intention of the parties that first party will be completely relieved of the burden and responsibility of financing its operations, which responsibility will be assumed by second party as it is well equipped and qualified for such purpose.” (The third paragraph pertains to the use of certain trade-marks.) “4. In consideration of all of the above, first party agrees to pay second party, effective as of June 1, 1934, the sum of four and 50/100 ($4.50) dollars for each ton of feed manufactured by first party for second party’s services under paragraphs 1 and 2 hereof, and the sum of fifty cents (.504) for each ton of feed so manufactured for the use of the trade-marks under paragraph 3 hereof. Payment will be made on or before the 10th day of each month for the services of second party furnished during the preceding month.” For the year 1935 this contract was changed so that the payments to the Miller Management Corporation were $3.25 per ton instead of $4.50. On March 15, 1935, the Schreiber Milling and Grain Company brought an action in the district court of Wyandotte county, Kansas, in the nature of a creditor’s bill, against the Nutrena Mills, Inc., and Miller Management Corporation, to subject their assets to the payment of the judgment it had obtained against the Nutrena Feed Mills, Inc., in the federal court of Missouri. On the trial of that case judgment was rendered for defendants and this was affirmed. (Schreiber Milling Co. v. Nutrena Mills, Inc., 149 Kan. 276, 87 P. 2d 577.) While this case is mentioned in the briefs perhaps it has but little application here. In making its income tax return for the years 1934 and 1935 the Nutrena Mills, Inc., asked to have deducted from its income $47,-308.85 for the year 1934 and $129,001.67 for the year 1935 because of management and financial charges. These were the sums shown by its books to have been paid for those years to the Miller Management Corporation under the contracts above mentioned. In respect to these items the state tax commission allowed to be deducted $7,000 for the year 1934 and $33,580 for the year 1935, these sums being the amounts actually paid by the Miller Management Corporation for salaries of the officers of the Nutrena Mills, Inc. The balance of the payments of the Nutrena Mills, Inc., to the Miller Management Corporation for those years was treated as dividends and taxable as income. These are the two items in controversy. The specific portion of our statute (G. S. 1935, 79-3206) necessary to be considered reads as follows: “In computing net income there shall be allowed as deductions: (1) All tho ordinary and necessary expenses paid during the taxable year in carrying on any trade or business.” Under authority of statute the state tax commission has made, among others, the following regulation, the validity of which is not questioned: “A reasonable allowance for salaries or other compensation paid for personal services actually rendered is deductible. The test of deductibility of such pay ments is whether they are reasonable consideration for the services rendered and whether they are in fact payments purely for service. If an ostensible salary paid by a corporation is in excess of those ordinarily paid for similar services, and the excessive payments correspond or bear a close relationship to the stock holdings of the recipients, the excess deduction will be disallowed to the corporation and taxed as a dividend to the recipient. . . .” Appellant presents for our review the question, first, whether the ruling of the state tax commission disallowing deductions of $47,-308.85 for 1934 and $129,001.67 for 1935 for management and financial expenses was reasonable and proper. It should be observed that the tax commission did not disallow these claimed deductions in their entirety. It allowed deductions for the purposes stated of $7,000 for 1934 and of $33,580 for 1935, these being the sums for the respective years which the Miller Management Corporation paid as salaries of officers and employees of the Nutrena Mills, Inc. Unless the ruling of the tax commission was in violation of law, or was induced by fraud, or for some other reason was arbitrary and capricious, the question of the reasonableness of the ruling was for the tax commission. In such a case the court would not be justified in substituting its judgment for that of the tax commission. We next are presented with the question whether the state tax commission has the authority and power to disregard facts showing an agreement for compensation to be reasonable at the time when made because in the light of subsequent developments, not anticipated at the time, the compensation turned out to be excessive. Appellant’s argument on this point is predicated primarily upon the contention that the evidence before the tax commission and the trial court was conclusive that the contract between Nutrena Mills, Inc., and Miller Management Corporation, made in June, 1934, was reasonable when made. That premise is erroneous. The evidence on that point was to this effect: The Nutrena Mills, Inc., and its predecessor, Nutrena Feed Mills, Inc., in the conduct of its business, had occasion to borrow substantial sums of money, particularly during certain seasons of the year; that because of the circumstances under which the Nutrena Mills, Inc., had been organized, and because of the legal actions pending or threatened by the Schreiber Milling Company against Nutrena Feed Mills, Inc., and the possibility that Nutrena Mills, Inc., might be involved, the banks, in June, 1934, declined to make loans directly to Nutrena Mills, Inc., and for that reason it became necessary to have some other indi viduals or corporation borrow the money and loan it to Nutrena Mills, Inc. There was evidence that the Miller Management Corporation borrowed from one of the Kansas City banks $40,000 in 1934 at five percent interest, which it loaned to Nutrena Mills, Inc., for six percent interest, taking security therefor; also that in 1934 Miller personally loaned, through the Miller Management Corporation, $7,000 to Nutrena Mills, Inc., and that in the year 1935 the Miller Management Corporation borrowed $41,000 from a Kansas City bank, which likewise it loaned to the Nutrena Mills, Inc., and in addition secured' from other sources, being from Miller, his wife and immediate associates, $22,000, which it loaned to Nutrena Mills, Inc. With respect to these loans we first note that the taxpayer asked for deductions for all the interest it paid during those years, and this was allowed by the tax commission; that the Miller Management Corporation actually made a profit of one percent on the money it borrowed from the Kansas City bank and loaned to Nutrena Mills, Inc., and that these loans to Nutrena Mills, Inc., were secured by mortgages on its assets. We note the further fact that, so far as this record discloses, the Miller Management Corporation was simply a holding company for Nutrena Mills, Inc. All of the stock in each of them, even including the few shares issued to persons who held official positions in the companies, was owned by Miller. Just why the bank should feel more secure to make its loans to the Miller Management Corporation than directly to Nutrena Mills, Inc., is not apparent, and is perhaps of no importance here. It is sufficient to know that was the way it was done. The transaction, however, is open to the interpretation that this was done at the instance of Miller and for the purpose of protecting himself against the result of the actions pending, or threatened, by the Schreiber Milling Company against Nutrena Feed Mills, Inc. Under this head it is argued by appellant that the sum of $4.50 per ton for 1934 and $3.25 for 1935, which the Nutrena Mills, Inc., agreed to pay the Miller Management Corporation for its services, was reasonable when it was made. It is said, and there were affidavits and parol evidence on behalf of the taxpayer to the effect, that because of the serious drouth and depressed financial conditions the feed manufacturing business had not been good; that its officers did not anticipate it would do anything like as much business in 1934 and 1935 as it developed it did do. It is argued, if the sums paid Miller Management Corporation by the Nutrena Mills, Inc., in the years 1934 and 1935 now seem large in comparison with the services performed, that is a result which could not have been anticipated. Authority is cited that an agreement for the financing of a corporation or a business, reasonable when made, should not be set aside because subsequent changed conditions caused the payments to be much larger .than could have been anticipated at the time the agreement was made. (Austin v. United States, 28 F. 2d 677.) The reports of Nutrena Mills, Inc., to the tax commission for 1933 show its net profits per ton to have been 46 cents plus, and for 1934, up to June 1, to be. $1.85. There is no evidence in this record that at any time prior to the making of this contract the net profits per ton of the manufactured products of the Nutrena Mills, Inc., or of its predecessor, had ever been anything like $4.50 per ton. Hence, the agreement is open to the interpretation that the price per ton which by its contract of June, 1934, the Nutrena Mills, Inc., agreed to pay the Miller Management Corporation for its management and financial services was fixed so high that it would take all of the profits of the Nutrena Mills, Inc., even though they might be greatly in excess of the previous profits of the company. It is possible this was done because of Miller’s desire further to protect himself from the legal actions pending, or threatened, by the Schreiber Milling Company against Nutrena Feed Mills, Inc. There was no finding by the tax commission that the agreement was reasonable when it was made, neither was such a finding made by the trial court. The order of the tax commission and the judgment of the trial court on this point had the effect and should be construed as amounting to a finding that the contract was not reasonable when made. Hence, there is no sound basis for the principal argument of appellant that since the contract was reasonable when made, large payments made under it because of subsequent conditions, which could not have been anticipated when the contract was made, should not be taken into account. Appellant presents the further question whether the order of the state tax commission was unreasonable and arbitrary because no deduction was allowed for services and financial assistance rendered by the Miller Management Corporation to the Nutrena Mills, Inc. On this point it is conceded that the commission .allowed as a deduction the salaries of officers and employees of the Nutrena Mills, Inc., paid by the Miller Management Corporation, and no question was raised as to those items, as reported. But it is contended that an additional deduction should have been made for the services of the Miller Management Corporation in financing Nutrena Mills, Inc. As previously noted, the Miller Management Corporation made a profit on the money it borrowed and loaned the Nutrena Mills, Inc., and that these loans, as well as the loans made by Miller and his associates, were amply secured, and that a deduction was made for all the interest paid on these loans by Nutrena Mills, Inc. We are unable to see from the record that any specific request was made by the taxpayer for the tax commission to make a separate and distinct deduction for this financing service. At any rate, the record is barren of any evidence by bankers, economists, or anyone else, as to the reasonable value of such service; therefore, we think this point not well taken. It is stipulated that the Miller Management Corporation never was authorized to do business in Kansas, and the evidence is that it performed all of its services for Nutrena Mills, Inc., in the state of Missouri. It is stipulated that it made an income tax return to the state of Missouri, which included the payments from Nutrena Mills, Inc., and that it paid its income taxes thereon. We do not regard this fact as having any bearing. The Nutrena Mills, Inc., had its manufacturing plant in Kansas and transacted its business in this state and is liable for income taxes here. If, as argued by appellee, it was to siphon out of this state and into another state the profits made by Nutrena Mills, Inc., in Kansas by a contract to pay the out-of-state corporation a sum grossly in excess of the reasonable value of its services to Nutrena Mills, Inc., that fact should not defeat the collection of the income tax from the Nutrena Mills, Inc., by this state. It is stipulated that both the Nutrena Mills, Inc., and Miller Management Corporation made their income tax returns to the federal government; that in doing so Nutrena Mills, Inc., reported having paid for management and financial expenses items of $47,-308.85 and $129,001.67 in the years 1934 and 1935, and the Miller Management Corporation reported having received those sums, and that the federal income taxes thereon were paid to’ the bureau of internal revenue by the Miller Management Corporation. We do not regard that fact as having any bearing here. It is conceded the ruling of the bureau of internal revenue on that question is not res judicata in this case. More than that, so far as the federal government is concerned, if it actually received payment of the tax upon the income of the Nutrena Mills, Inc., it is immaterial to it whether they were collected from that company or from the Miller Management Corporation. Here the matter is material. Since the Miller Management Corporation is one organized under the laws of another state and is not authorized to do business in this state, and in fact did no business here, this state would not be entitled to an income tax from it. So the question, after all, gets back to whether or not the payments actually made by the Nutrena Mills, Inc., to the Miller Management Corporation for the years in question were in excess of the reasonable services performed. It is not contended that the order of the tax commission violated any specific laws of this state, neither is it contended that it was induced by fraud. Upon the evidence before the tax commission it cannot be said that its order was unreasonable. The trial court made no finding to that effect. It is well settled that the tax found by the tax commission to be due is presumed to be valid; the taxpayer has the burden of showing its invalidity. (United States v. Reitmeyer, 11 F. 2d 648.) Deductions from gross income are allowed as a matter of legislative grace. A taxpayer seeking a deduction in computing taxable income must be able to point to an applicable statute and show that he comes within its terms. (White v. United States, 59 S. Ct. 179.) The fact the taxpayer has entered into a contract with stockholders, officers, or others to pay a fixed portion of its income for salary or other services does not, standing alone, make the amount paid under such a contract “ordinary and necessary expenses” of conducting the trade or business. (Samuel Heath Co. v. United States, 2 F. Supp. 637; Hecht v. United States, 54 F. 2d 968; Traylor Engineering & Mfg. Co. v. Lederer, 271 Fed. 399; Moxa Building Co. v. Commissioner of Internal Revenue, 31 B. T. A. 457; affirmed, 79 F. 2d 1004.) Whether such payments are ordinary and necessary expenses of the business, and the reasonableness of the sums paid, are always open to inquiry. A variety of circumstances have been considered by the courts in the cases collected in American Digest System, Internal Revenue, Key No. 7 (17) (18). In some instances the deduction claimed was allowed, in others it was denied, depending on the facts shown. It would serve no useful purpose to cite and analyze these cases. We have examined all of them cited by counsel and many more. We find nothing in them which would require or justify the reversal of the judgment of the trial court in this case, and it is therefore affirmed.

The opinion of the court was delivered by Harvey, J.: Appellant was tried and found guilty of the sale of chattel-mortgaged property of the value of more than $20 with the felonious intent to cheat and defraud the mortgagee. Because of his previous conviction of a felony he was sentenced to the penitentiary for a term of not more than ten years. This was June 20, 1936, on which date his motion for a new trial was overruled, and on this sentence he was committed to the penitentiary. On June 17, 1938, he served and filed his notice of appeal. He never has procured a transcript of the testimony, nor filed an abstract of the record, or a brief, because of his financial inability to pay the cost thereof. For the same reason this court waived the rule requiring a deposit of costs in this court in his case. We are advised that he has been paroled from the penitentiary and permitted to go to Arkansas, where he has employment. He has prepared his own statement of so much of the record of the proceedings in the trial court as he deems necessary to present to this court the question he desires the court to pass upon. The attorney general has moved that the appeal be dismissed because of the lack of a proper record, or that the judgment of the court be affirmed on the record presented. It is clear that the obviously incomplete record is insufficient to justify this court in attempting to review the case. However, we deem it not improper to pass upon the one legal point which appellant asks the court to rule upon in letters and a manuscript brief he has prepared. Briefly, the partial record presented tends to show that appellant had located certain cattle which he wanted to buy. He went to the bank, explained the situation, and borrowed $450 to buy these specific cattle. To secure the loan he gave the bank a mortgage on the cattle to be purchased, describing them. Appellant promptly purchased the cattle with the money borrowed, and later sold the property described in the chattel mortgage without the knowledge or consent of the mortgagee, and without making a payment on the mortgage. This transaction formed the basis of the prosecution. His sole point is that the property mortgaged “was not in existence” at the time the mortgage was executed. We construe this contention to mean that appellant was not the owner of the property at the time the mortgage was given. His argument is that the mortgage was absolutely void, from which argument we presume he thinks it follows that he committed no offense when he later sold the property and kept the money. The point is not well taken. The mortgage was valid as between the parties. (Miller v. Sooy, 120 Kan. 81, 242 Pac. 140.) It was a purchase-money mortgage and was a valid lien on the cattle as soon as they were purchased. (See Bank v. Venard, 109 Kan. 15, 18-19, 197 Pac. 877.) In 14 C. J. S. 627 the rule is stated as follows: “When a mortgage is given ... in contemplation of the immediate acquisition of the property, it cannot be said to be a mortgage of after-acquired property.” The judgment of the trial court is affirmed.

The opinion of the court was delivered by Wedbll, J.: This is an appeal by three plaintiffs from judgments rendered in favor of defendants in three separate actions to cancel certain mineral deeds and to quiet title to plaintiffs’ respective tracts of land. The cases were tried as a single action. The evidence was substantially the same in each case. The plaintiff landowners were Horatio H. Tawney, John Pearson and W. F. Loflin. The defendants were G. T. Blankenship, the Equal Royalty Company and the Royalty Holding Company, both nonresident corporations. Service on defendants was had by publication in all cases, except that in the Loflin case service was also had on the secretary of state. The actions were filed April 18, 1935. The petitions were identical except for the name of the plaintiff and the description of the land, and in substance alleged: The defendant Blankenship was the agent of the corporate defendants; on February 15, 1929, Blankenship represented to plaintiffs he was authorized by the state bank commissioner and state charter board to sell, transfer and convey the stock of the defendant corporations and to buy and take royalty and mineral deeds for himself and the defendant corporations; the corporations were solvent, strong and going concerns and able to carry out any contract made by him; they were able to commence drilling at once and they paid a substantial dividend on their stocks every six months; every stockholder was on an exact equality; all of the representations were false and known to be false by Blankenship and the corporations; plaintiffs believed and were induced by the false representations to enter into a written contract with Blankenship under which they agreed to convey to him and the Equal Royalty Company, mineral deeds in consideration for which deeds they were each to receive 1,200 shares of stock in that corporation; the contract was in the possession of defendants, and plaintiffs were unable to more definitely state the terms thereof; pursuant to that contract plaintiffs executed and delivered to Blankenship a mineral and royalty deed conveying to him a one-fourth interest in all minerals and oils, and to the Equal Royalty Company, a similar deed conveying a three-fourths interest in the minerals and oils in said lands; in consideration of the deeds they received the stock of the corporation, and the deeds to defendants were recorded in the office of the register of deeds of Trego county, in which county the land was situated; the stock was at all times worthless and plaintiffs tender the same to defendants; the deeds were in violation of the blue-sky law of the state of Kansas; the deeds were acknowledged by a justice of the peace of Trego county, who was not authorized to take the acknowledgments; the deeds constituted a cloud on plaintiffs’ titles and should be canceled. On June 3, 1935, default judgments were rendered canceling the mineral deeds and quieting title to the lands. During the same term of court and on October 16,1935, defendants filed motions to vacate the judgments on various grounds, not material on this appeal, and asked to have the judgments opened and that they be permitted to defend the actions upon their merits. The judgments were opened up and defendants were permitted to defend. The answers attached to the motions in each case contained a general denial and pleaded the written contract entered into by plaintiffs and the defendant, Blankenship, on February 15, 1929. The pertinent portion of the contract in substance provided: Plaintiffs employed Blankenship to sell or pool oil and gas mineral rights to the Equal Royalty Company, not then in existence, or to some other company to be organized thereafter; as compensation for services rendered while organizing such a company and as their part of the expenses of organization, plaintiffs agree to convey to Blankenship an equal undivided one-fourth interest, and to such company as was organized an equal undivided three-fourths interest in the oil and gas and other minerals in and under the lands; in full payment of the' deeds plaintiffs agree to accept certain shares of stock in the company after its organization ; before the company can be organized the landowners in one or more of the states (naming various states) are required to make additional employment contracts covering in the aggregate not less than 4,000 acres nor more than 80,000 acres; after the execution of the contracts and after all deeds have been placed in escrow, the company is to be organized by Blankenship at his own expense; when the organization is completed the deeds and contracts placed in escrow are to be delivered by the escrow holder to the company; plaintiffs have each executed two deeds, one to the company and one to Blankenship, conveying the respective interests agreed upon; Blankenship shall obtain or cause to be obtained a permit in the state or states, if necessary, in order that the company may conduct business in the states where its holdings are located. The answer further, in substance, alleged: In conformity with the contract-, the deeds were placed in escrow on March 5, 1929; the Equal Royalty Company was organized and the escrow holder delivered the stock to plaintiffs and the deeds to Blankenship, and to the Equal Royalty Company; the blue-sky law of Kansas has no application for the reason the contract was a pre-organization agreement and plaintiffs were coorganizers and organization members of said company; long prior to the filing of these actions Blankenship transferred part of his interest to the Equal Royalty Company, and the remainder of his interest to the Royalty Holding Company, which company is a bona fide purchaser for value; the corporate defendants deny Blankenship was the agent of either of said companies at the time the transactions were consummated between plaintiffs and Blankenship; the transactions-constituted interstate commerce, and the blue-sky laws of Kansas are a direct burden upon interstate commerce, and unconstitutional to that extent; plaintiffs are guilty of laches and their actions are barred by the statute of limitations. Defendants, with leave of court, filed supplemental answers in each case, which in substance alleged: The actions were barred by each and all of the subdivisions of G. S. 1935, 60-306, and particularly by the third and fourth subdivisions thereof, and by G. S. 1935, 17-1240; plaintiffs have waived and are estopped from asserting fraud or failure to comply with the blue-sky laws for the reason they received and accepted a dividend on the stock in January, 1931; plaintiffs have ratified, confirmed and approved the transaction. The replies filed by plaintiffs contained a general denial of all new matters pleaded in the supplemental answers and, in substance, further alleged the statute of limitations did not constitute a meritorious defense, and that defendants have at all times been nonresidents of the state of Kansas. Plaintiffs filed an amended reply which also denied generally all new matters pleaded in the respective answers, except they admitted the Equal Royalty Company was not. organized when the deeds were executed. The amended replies, however, denied plaintiffs knew at the time they filed the petitions that the company had been organized and then alleged the deeds were obtained without consideration and by reason of the fraud pleaded in the petitions. The amended replies also alleged in substance that plaintiffs were inexperienced in drawing contracts, they had confidence in Blankenship and relied upon his statements as to what the contracts contained. Certain assignments of error specified by plaintiffs are neither briefed nor argued. Under such circumstances we assume such alleged errors have been abandoned. (Bailey v. Dodge, 28 Kan. 72; Smith v. Kagey, 146 Kan. 563, 570, 73 P. 2d 56.) Plaintiffs urge the defense of the statute of limitations pleaded in the answer attached to the motions to open up the judgments does not constitute a meritorious defense. The contention is not well taken. (Freeman v. Hill, 45 Kan. 435, 25 Pac. 870; Mercantile Co v. Rooney, 114 Kan. 840, 220 Pac. 1048; Lilly-Brackett Co. v. Sonneman, 157 Cal. 192, 106 Pac. 715.) As distinct from the opening up of judgments under G. S. 1935, 60-2530, and on the general subject of the various statutes of limitation constituting a bar to actions for the cancellation of mineral deeds on the theory they are void instead of merely voidable, where exfecuted and delivered in exchange for so-called speculative securities without a permit or license to sell or exchange such securities, see Terrill v. Hoyt, 149 Kan. 51, 87 P. 2d 238, and Weber v. Home Royalty Ass’n, 149 Kan. 678, 88 P. 2d 1053, and cases therein cited. That the action was barred was, however, not the only defense pleaded. A general denial was pleaded, and it alone constitutes a “full answer” in a quiet-title suit, within the meaning of the provisions of G. S. 1935, 60-2530. [Wyatt v. Collins, 105 Kan. 182, 180 Pac. 992.) Ratification, estoppel and waiver were also pleaded, and they likewise constitute meritorious defenses. (Westhusin v. Landowners Oil Ass’n, 143 Kan. 404, 55 P. 2d 406; Groves v. Home Royalty Ass’n, 145 Kan. 752, 68 P. 2d 19.) Plaintiffs next insist the deeds are void for the reason the Equal Royalty Company, one of the grantees, was not in existence when the deeds were executed. That contention, if good, could not affect the deeds to the defendant Blankenship. The contention, however, is not good in the instant case. It is true a deed does not take effect until its delivery. In the instant case the deeds were complete when delivered and that is all that is necessary where the grantor has actual knowledge of its contents and with such knowledge authorizes its delivery. (Tucker v. Allen, 16 Kan. 312; Wilkins v. Tourtellott, 28 Kan. 825, 839; Brown v. Ulmer, 110 Kan. 504, 204 Pac. 1007.) A grantor may authorize the person to whom he delivers the deed to fill in the blank, and when the name of the grantee is inserted under such authority the deed becomes operative upon delivery.’ (18 C. J., Deeds, § 57; Bank v. Fleming, 63 Kan. 139, 65 Pac. 213.) The deeds in the instant case were completed and delivered in accordance with the contract and specific directions of the plaintiff grantors, and were valid. (21 C. J., Escrows, § 34; Santaquin M. Co. v. High Roller M. Co., 25 Utah 282, 71 Pac. 77; Lanktree v. Spring Mt. Acres, Inc., 213 Cal. 362, 2 P. 2d 338; Yellow Chief Coal Co.’s Trus. v. Johnson, 166 Ky. 663, 179 S. W. 599; Hecht v. Acme Coal Co., 19 Wyo. 10, 113 Pac. 786; Burk v. Johnson, 146 Fed. 209.) Furthermore, plaintiffs ratified the completion of the deeds and the delivery thereof to defendants. The stock was sent to them by registered mail on April 29, 1929, and they were at that time notified in writing by the escrow holder that the Equal Royalty Company had been organized and that the deeds had been delivered as per their contract. They accepted the stock at that time and a dividend check in January of 1931. The first complaint of any kind was registered by the filing of the instant suits on April 18, 1935. Their conduct constituted ratification of the completion of the deed. (Brown v. Ulmer, supra.) Furthermore, plaintiffs did not ask to have the deeds canceled upon the ground the grantee corporation was not in existence at the time the written contracts and deeds were executed, but asked relief upon the grounds of fraud and want of consideration. They cannot now demand cancellation of the deeds by a court of equity upon an entirely different ground. (Burk v. Johnson, supra; 3 Black on Rescission and Cancellation, 2d ed., § 664.) Plaintiffs contend the deeds were void for want of consideration. In view of what has been previously stated we need not discuss that contention. Plaintiffs finally urge the deeds should be held invalid by reason of the fact their acknowledgments were taken by a justice of the peace in Trego county, but outside of his judicial township. G. S. 1935, 61-102, ninth, authorizes a justice of the peace “to take acknowledgments of deeds, mortgages and other instruments in writing.” G. S. 1935, 67-209, provides: “All deeds or other conveyances of lands, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his lawful agent or attorney, and may be acknowledged or proved and certified in the manner herein prescribed.” G. S. 1935, 67-211, reads: “All conveyances, and other instruments affecting real estate acknowledged within this state, must be acknowledged before some court having a seal, or some Judge, justice, or clerk thereof, or some justice of the peace, notary public, county clerk, or register of deeds, or mayor or clerk of an incorporated city.” These statutes do not appear to limit the authority of the justice of the peace to take acknowledgments solely within his judicial district, but the point raised, if good, is immaterial, as the deeds were valid as between the parties thereto. (G. S. 1935, 67-223; Banister v. Fallis, 85 Kan. 320, 322, 116 Pac. 822.) An acknowledgment has reference only to the proof of execution and not to the force of the instrument between the parties thereto. (Gray v. Ulrich, 8 Kan. 112.) Plaintiffs pleaded the execution of the deeds and their execution was admitted by their testimony. The real ground on which cancellation of the deeds was sought was fraud. The court found generally in favor of the defendants. In commenting upon the evidence the court said: “But, just as a matter of law, it seems to the court that the evidence has wholly failed to support the allegations of the petition and to establish fraud in this case.” The judgments are affirmed.

The opinion of the court was delivered by .Hoci-i, J.: This was an action to foreclose a lien on real estate. Plaintiffs prevailed, and defendant appeals. The question presented is whether the defendant was bound by judgments previously entered in a partition suit which involved a certain antenuptial agreement. John H. Baldwin and Phoebe Jane Manship were married in 1928. Baldwin had two sons, Joseph E. Baldwin and Robert A. Baldwin, from a former marriage. Prior to the marriage an antenuptial agreement was executed under which Phoebe Jane Manship surrendered such rights as she would otherwise take by marriage in any property which Baldwin had at the time of the marriage or might subsequently acquire. In return it was agreed that— “Upon the death of said first party, there shall be set aside out of his estate, by his executor or administrator, a sum sufficient when carefully invested in good securities to produce the sum of six hundred {$600) dollars per annum; and the income derived therefrom shall be paid by said executor or administrator to said second party in equal semiannual installments for her support and maintenance as long as second party shall live and remain the widow of first party. “It is understood and agreed that said second party shall not be entitled-to any part of the principal of said sum but to the income only as above set forth.” (Italics inserted.) Baldwin died intestate in May, 1935, possessed of considerable property, and leaving as his heirs the widow and the two sons heretofore named. In August, 1935, Mrs. Baldwin and Joseph E. Baldwin brought action for partition of the real estate owned by the deceased, and the other son, Robert A. Baldwin, was made defendant. Mrs. Baldwin alleged that she owned an undivided one-half interest in the real estate and that the two sons each owned an undivided one-fourth interest as tenants in common. In his answer Robert Baldwin alleged that he and his brother were sole heirs of all of the property of the deceased, subject to' the terms of the antenuptial contract heretofore referred to. In their reply the plaintiffs contended that if the court should hold the antenuptial contract to be valid then it should be charged against the entire estate, both real and personal, of the deceased. The cause was duly heard, and on January 18, 1936, judgment was rendered. The court found that the two sons were tenants in common, each owning an undivided one-half interest in the property, subject to the interest of the plaintiff, Mrs. Baldwin, under the antenuptial contract. As to Mrs. Baldwin’s interest the court'found: “The court further finds that the plaintiff, Phoebe Jane Baldwin, by virtue of an antenuptial contract entered into between herself and John H. Baldwin, deceased, is entitled to an annuity of $600 per year, commencing on the death of the said John H. Baldwin and ending at her death or remarriage; that said annuity, by virtue of said contract, is due her annually, and constitutes and by agreement is a lien against said land when due and until paid, which said lien shall exist as to each due payment until the death or remarriage of the said Phoebe Jane Baldwin even though foreclosure may have been obtained to satisfy any unpaid annual installments. . . . The court further orders and adjudges that the annuity of $600, by consent and approval of the plaintiffs and defendant, shall be paid as follows: “One-half by the plaintiff, Joseph E. Baldwin, viz., $300, and one-half, viz., $300, by the defendant, Robert A. Baldwin, and that the same shall be paid to the plaintiff, Phoebe Jane Baldwin, annually, and said payments of $300 per year by the defendant, Robert A. Baldwin, to the plaintiff, Phoebe Jane Baldwin, shall be paid each year and until the death or remarriage of Phoebe Jane Baldwin, and that said sum of $300 per year to be paid on said annuity by said plaintiff, Joseph E. Baldwin, shall be a lien on his share of the real estate given him by this judgment and shall continue and remain a lien on said real estate until the death or remarriage of the said plaintiff, Phoebe Jane Baldwin. And that said sum of $300 per year to be paid on said annuity by said defendant, Robert A. Baldwin, shall be a lien on his share of the real estate given him by this judgment and shall continue and remain a lien on said real estate until the death or remarriage of the said plaintiff, Phoebe Jane Baldwin.” Partition was ordered and commissioners appointed for that purpose. On January 25, 1936, Joseph E. Baldwin filed a motion for an order dismissing the commissioners for the reason that the parties had come to an agreement concerning the partition of the property, and asked for confirmation of the agreement. Under the agreement Joseph E. Baldwin was to receive two quarter sections, Robert A. Baldwin one quarter section, and Joseph was to pay Robert $1,400 to compensate for the unequal division of the property. The three quarter sections were to be subject to the interest of Mrs. Baldwin', as theretofore ordered by the court. In February, 1936, judgment was entered dismissing the appraisers and confirming the agreement. All parties were represented by their attorneys. The judgment contained this language: “It is further ordered that the above conveyed interest of the plaintiff, Joseph E. Baldwin, and the defendant, Robert A. Baldwin, are subject to the interest of the plaintiff, Phoebe Jane Baldwin, as determined by the order of this court on January 18, 1986.’’ Jurisdiction was reserved to make any further orders in the case. Thereafter each son made annual payments to Mrs. Baldwin of $300, until December 1, 1938, when Robert Baldwin paid into the clerk of the district court the sum of $103.54, together with a report called “Report of Proceeds of Farm for 1938,” which report purported to show the net proceeds of the farm for that year to be $103.54. On December 19, 1938, Mrs. Baldwin filed a motion which made reference to the judgments heretofore referred to and alleging that under such judgments she was entitled to an annuity of $300 a year from each son and that the $300 due from Robert Baldwin was a first lien on the real estate set apart to him. She asked the court to determine the balance due her from Robert Baldwin and that unless such amount with interest and costs were paid within five days of the judgment the quarter section set aside to Robert Baldwin be sold subject to her lien “for any and all future annuity payments which may become due under the judgments heretofore rendered.” The defendant answered, alleging in substance that Mrs. Baldwin was entitled to $300 only in the event the net income from the land was sufficient to provide such annuity and that “she is not entitled to any of the principal.” After hearing upon the motion the the court entered judgment on March 4, 1939. The court found that Robert Baldwin, under the judgments theretofore rendered, had been ordered and adjudged to pay $300 on the first day of every December and that such payments constituted a first lien on the quarter section which he had received under the partition agreement and judgment. The court also found that he was in default in the amount of $199.51, including interest, and it was ordered that unless that amount, together with costs of the action, were paid into court within ten days order of sale of the land should issue. From such order this appeal was taken. Appellant contends that under a proper construction of the antenuptial agreement Mrs. Baldwin was only entitled to $600 in the event the annual income from the property equalled or exceeded that amount; that in the partition suit no issue was raised on the subject of modification of the contract and that the judgment rendered therein was only intended to allocate between the two sons an annuity to be charged against the net income each derived from their father’s property, and that the court erred in making the excess beyond the income a lien on the land. Appellee contends that the antenuptial contract was properly construed in the partition suit and that in any event the defendant was bound by the judgment therein rendered; that in addition to his quarter section the defendant received $1,400 in cash, and that if the judgment liens were to be set aside it would involve opening up of the whole matter, since Mrs. Baldwin was entitled to $600 a year out of the whole estate, both real and personal. While we do not think it necessary, in view of the judgments rendered in the partition suit, to discuss possible interpretations of the antenuptial agreement, its principal provisions may be noted. Mrs. Baldwin surrendered all rights in Baldwin’s property which she would have had by the marriage. In consideration of this surrender there was to be set aside for her benefit “a sum sufficient when carefully invested in good securities to produce the sum of six hundred dollars per annum.” It was further provided that she should not be entitled “to any part of the principal of said sum” so set apart. But if property had been set aside and invested in securities and the income failed to reach $600 a. year, there would certainly have been an obligation to set aside additional property, even if it took all of Baldwin’s property, both real and personal. What Mrs. Baldwin’s interest might have amounted to had there been no antenuptial agreement, we cannot say. The record discloses nothing as to the value of the personal property left by Baldwin. It only discloses that in the partition suit Robert received a quarter section of land and $1,400, while Joseph received two quarter sections. It is not disclosed whether the net income from the two quarter sections which went to Joseph was in excess of $300, nor is it disclosed whether the annual net income of Robert’s quarter section was in excess of $300 prior to 1938. However, it is not necessary to determine the income of the various tracts or the amount of the personal property, if any, nor in our opinion does the issue turn upon interpretation of the antenuptial agreement. Appellant contends that in the partition suit the antenuptial agreement was not before the court for construction or modification, that the interpretation given to it amounted to a modification, and that if the judgments in the partition action be construed as effecting a modification, the judgments went beyond the issues in the case and are therefore void. We have given careful consideration to this contention, but do not think the point is well taken. Assuming for the moment that the court’s interpretation amounted to modification, it still appears that the judgments were rendered after agreement or consent of all parties. The court had jurisdiction of the parties and of the subject matter and the antenuptial agreement was brought into the case by the pleadings. All parties in interest were represented. The defendant’s answer set up the antenuptial agreement and alleged that the sons had title to all the property, subject to Mrs. Baldwin’s annuity of $600 as long as she should live and remain unmarried. The reply did not specifically deny the validity of the antenuptial contract, but alleged that if it were held to be valid the annuity should be charged against the entire estate of Baldwin, both real and personal. Thereafter, on January 18, 1936, all parties being represented, judgment was rendered directing partition of the real estate and providing “by consent and approval of the plaintiffs and defendant” that $300 should be paid to the widow annually by each of the two sons and that this amount should be a lien upon the land received by each. Appraisers were appointed,' but before they made their report all parties agreed as to the manner in which the land should be partitioned, and judgment was rendered on February 3, 1936, in harmony with the agreement. Again, all parties were represented and the judgment was entered upon agreement. Again an obligation to pay the widow $300 annually during her lifetime or until she remarried was made a lien upon the land of each son. The fact that there was a partition suit pending did not destroy the capacity of the parties to contract. They were competent to make the agreement and the decree of the court recognized and ratified the agreement. That such consent decrees are binding upon the parties has long been established. (34 C. J. 129 et seq.; 15 R. C. L. 643-646.) The general rule has been followed by this court in upholding such judgments. In the early case of U. P. Railway Co. v. McCarty, 8 Kan. 125, the binding effect of a previous decree entered upon consent of the parties was recognized. In an action in 1862 to condemn defendant’s land for right of way, judgment had been entered which provided not only for a money payment to the defendant but further provided that the plaintiff was to fence his land. The company did not build the fence, and four years later McCarty brought action to recover damages and was permitted to introduce the record of the former judgment. The company claimed that the court had no power to render the former decree and that it was void. The court said that question might have been raised on review of the judgment in the former case, but that the record showed that the judgment had been entered by consent of the parties and was binding upon them. In the case of Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199, a former consent decree was upheld. The former action involved, inter alia, partition of real estate. In the later action it was claimed that the decree theretofore made dividing the property was void because it was not in accordance with the allegations and claims made in the petition, and for other reasons. The court said that while the former decree was probably erroneous in some particulars, no fraud was shown, and refused to set aside the “consent decree.” Cowle v. Cowle, 114 Kan. 605, 220 Pac. 211, involved a decree entered upon consent of husband and wife that certain real property in the husband’s name should be set off to children who were not parties to the action. Although the court would probably have had no jurisdiction to render such decree had it not been agreed upon (Melton v. Every, 105 Kan. 255, 182 Pac. 543), the decree was sustained as a consent decree. In Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437, a consent decree providing for support of a child had been rendered in a divorce action. Later a separate action for specific performance of the provisions of the decree was brought. Stipulations of the parties modifying the original agreement in some respects were filed and again a decree was entered in harmony with the modifications. About two years later the defendant filed a motion to .modify the previous order, which motion was resisted. The court refused to modify, holding in effect that the parties had entered into a contract and that the decree, entered in harmony with their agreement and by their consent, was binding, and that the decree should be enforced until modified in the method provided.for in the decree itself. The cases cited by appellant have been examined. They are distinguished from the instant case because it does not appear in any of them that the decree set aside had been entered upon consent of the parties. For reasons stated, the defendant was bound by the judgments of January 18,1936, and February 3,1936. No appeal was taken from those judgments. The judgments made the $300 due from the defendant a lien upon the quarter section allotted to him and cannot be disturbed in this action. The judgment is affirmed.

The opinion of the court was delivered by Hoch, J.: This action was brought under the declaratory judgment statute (G. S. 1935, 60-3127 to 60-3132) in the district court ■of Sedgwick county to determine whether the county commissioners of that county had a right to enter into a contract with a private individual, for a money consideration, to furnish information and offer testimony in proceedings held for the purpose of adding to the tax rolls intangible properties not voluntarily returned for taxation by the owners. The action was brought by the state on the relation of the county attorney, and the proposed.contract was set out for the scrutiny of the court. The district court held that the contract was ultra vires, and therefore invalid, and the county commissioners appeal. In the trial court the parties' submitted a stipulation as to the facts and circumstances leading up to the making of the proposed contract. • What may be called the preamble of the contract recites in substance that it is the belief of the county commissioners that in spite of the efforts of the assessors and their deputies a large amount of intangible property owned by foreign corporations and properly taxable in the county was not being returned and was escaping taxation; that in order to secure information which would lead to the discovery of such properties and their proper listing for taxation it was necessary to secure the services 'of an expert who 'had wide experience in such matters, who had accumulated records and other information which could be produced and would reveal the facts concerning such intangible properties, and that one L. S. Mayer was such a qualified expert, and that subject to judicial determination of their power under the law to do so they had entered into a contract with him for furnishing such services. Under the terms of the proposed contract Mayer agreed to furnish general information in his possession as to the whereabouts of “escaped and omitted properties,” to permit the use of the records which he had accumulated with reference to the ownership of such properties, to give the county the benefit of his researches in such matters, to give testimony in statutory inquisitions called for the purpose of bringing to light such “omitted properties” and give aid in “confronting and proving” the delinquencies of tax evaders, and to give other information relative to taxation of such properties as between Kansas and other states, and other such incidental help of similar nature in furtherance of the general purpose of the contract. In return for this service on the part of Mayer the county commissioners agreed to compensate him upon either of two bases, designated as “option A” and “option B.” Without reciting in detail the’ provisions of the contract it may be said that the essential terms were that under “option A” Mayer was to be paid $100 a day, ex- elusive of Sundays and holidays, for the time which he spent “in the business of acquiring and furnishing information” to be used by the county commissioners, and that this per diem payment was to be inclusive and not to apply to individual tax accounts concerning which he might furnish information, and that this payment was to be made out of funds that might be collected as a result of information furnished by him. If the county commissioners did not desire to make payment under “option A” they might do so under “option B,” which provided for payment to Mayer of 25 percent of all moneys collected as a direct result of the information furnished by him. In our opinion the case is controlled by the case of State v. Dickinson County, 77 Kan. 540, 95 Pac. 392, in which a contract substantially similar to the one in the instant case was considered and held to be ultra vires and void. Appellants seek to distinguish the instant contract from the one invalidated in the Dickinson county case on the theory that this contract does not call for collection of taxes by the person employed under the contract but only for the furnishing of information to be used by the county officials in the collection of taxes. An examination, however, of the Dickinson county contract does not support the distinction. In that case, as in this one, tax collections were to be made by the regularly constituted taxing officers in the regular way and Moir & Co., with whom the contract was made, proposed simply to assist the proper officers of the county in discovering taxable property subject to taxation in the county which had not been listed and assessed as required by law, and they were to receive 25 percent of the taxes which might be paid into the county treasury as a result of the discoveries made through their investigations. In that case the court said: “The statute relating to taxation prescribes a complete and entire system of listing, valuing and taxing all real and personal property, and also prescribes a procedure for discovering and listing property for taxation which has escaped the surveillance of the assessors, and assigns the several steps in the system and procedure to designated officers of the townships and counties of the state. It imposes upon certain officers the very duties which, by the contract in question, the county commissioners undertook to employ Moir to perform. (Gen. Stat. 1901, §§ 7585-7607.) It was beyond the power of the board of county commissioners to employ any other agency to perform these duties, and the contract is therefore ultra vires and void.” (p. 542.) In support of that conclusion numerous cases are therein cited which need not be recited here. In the Dickinson county case the offer submitted and accepted by the county commissioners provided: “We propose to assist the proper officers of your county to discover taxable property subject to taxation in your county that has not been listed and assessed as required by law.” It may be suggested that under that language the person employed was to work solely in Dickinson county, while in the instant case services were to be rendered not only within the county but outside the county and outside the state. If this difference between the two contracts is to be given any weight at all it would militate against rather than support the validity of the instant contract. If the commissioners are without authority under Kansas statutes to enter into such a contract covering services within their own county, certainly they would be without power to make such a contract covering services outside the county. In any event this difference in the two contracts furnishes no basis for supporting the contract before us. It is well settled that counties have only such power as is conferred upon them by statute. (Osborne County v. City of Osborne, 104 Kan. 671, 673, 180 Pac. 233; Shoner v. Jefferson County, 94 Kan. 220, 223, 146 Pac. 419; Brown v. State, 73 Kan. 69, 84 Pac. 549; Tarr v. Haughey, 5 Kan. 625, 634.) Appellants rely largely upon the provisions of G. S. 1935, 79-1432, in support of their authority to enter into the contract. We think it is readily apparent that the purpose of that statute is to compel the attendance and to elicit the testimony of persons in cases where there is reason to believe that false statements have been made with reference to property listed for taxation. It provides compulsory process and plainly does not confer power to employ persons to act in the capacity commonly referred to as a “tax ferret.” Cases in other jurisdictions dealing with such contracts have been examined and disclose a marked divergence of opinion. It may be said, however, that in most of the cases where such contracts have been upheld the decision has rested upon .the provisions of the state statute giving power, either expressly or by implication, to make such contracts. Among the cases holding such a contract void may be cited Stevens v. Henry County, 218 Ill. 468, 75 N. E. 1024, and Decatur County v. Roberts, 159 Ga. 528, 126 S. E. 460. In the former case the whole question is fully discussed and the same reasoning followed as in the Dickinson county case. Whether it is desirable and advisable to secure such outside serv ices in the collection of taxes, as that contemplated by the contract here considered, is a question not before this court for decision. Much may be said in support of the contention that such services are needed to help prevent widespread evasions of our tax laws, but whatever the arguments for or against the proposition it is a matter of public policy for determination by the legislature. Since the Dickinson county case was decided by this court more than thirty years ago the matter has been more than once brought to the attention of the legislature, but no action has been taken empowering counties to enter into such contracts. We find no grounds for reversing that which has become the established law in this state. In view of what has been said other contentions made in the case need not be considered. The judgment is affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action by a widow to recover damages for the alleged wrongful death of her husband resulting from a collision of an automobile, driven by the deceased, with the rear end of a slowly moving truck. Judgment went for plaintiff, and the de fendants, Harry Sargent, the driver of the truck, and H. W. Knupp and Sons Construction Company, a corporation, owner of the truck, have appealed. The plaintiff has cross-appealed from the order overruling her motion to set aside the verdict as to the amount only, which was in the sum of $3,500, and to grant a new trial on the single issue of damages. Appellants contend the court erred in overruling their joint demurrer to plaintiff’s evidence and their motion for judgment on the special findings. They further contend that, in any event, they are entitled to a new trial generally by reason of misconduct of counsel for plaintiff in the closing argument to the jury. We shall first review the evidence against which defendants’ demurrer was lodged. That evidence, in substance, was as follows: The accident occurred as plaintiff was driving north on Kansas highway No. 1, then a graveled road, and at a point about two and one-quarter miles north of Plainville. Plaintiff was driving a 1935-model Plymouth car. It was in good condition. The lights on such a car illuminated the highway for a distance of about 400 feet with the dimmers, and about one-fourth of a mile when the bright lights were in use. The accident occurred at about one o’clock in the morning of October 3, 1936. The deceased was forty-two or forty-three years of age and in good health. The road was about thirty feet wide, which included a sand or gravel ridge on the east side about two and one-half feet in width. There was no mist, rain or anything of that sort. It was a clear, moonlight night. The truck in question was a Ford V-8, and contained a fiat bed which was described as being seven feet, six inches wide, and also as being between seven and eight feet wide. The bed was about seven feet, ten inches long, and about four and one-half feet from the ground. The truck bed was loaded with implements used by defendants in excavating and digging slush ponds on oil leases. The implements consisted of a part of a bulldozer, being a blade and the arms which would be fastened to a tractor. That part of the bulldozer was described as containing an iron blade and arms, the combined length of which was ten feet and approximately four inches. It was about two and one-half feet high. The blade is fastened onto a caterpillar tractor by heavy steel arms, which hold the blade in front of the tractor. The blade was located immediately back of the truck cab. On the bed was also located a kilifer, which is described as a wheeled tractor on the order of a plow. It is something like a lister, only it has five prongs. It appears the kilifer was located between the arms of the bulldozer. There was evidence the arms of the bulldozer extended two, three, four or five feet behind the bed of the truck. No flag was noticed on the arms before the accident. When they left the truck, after the accident, a flag was placed on the end of an arm and flares were then placed on the highway. The arms were located just about even with the west and east edges of the truck bed. The color of the truck and implements was variously described as “a little dark, a kinda dark, dark brown,” and as having some mud on them, and as being a little dirty. The implements were also described as being dark yellow, not bright, and as having the color of old iron. The evidence described the reflectors, tail lights and clearance lights as being dirty, and as being covered with mud and dirt. None of the lights were burning at the time of the accident. The accident occurred on the east side of the highway and at a point about 300 feet north, or between 300 and 400 feet north, of a slight rise in the road. There was no other car or vehicle coming from the north and there was nothing to interfere with a car going around the truck. The truck was at all times on the east side of the road and there was more than one-half of the road between the truck and the west side of the side of the highway. After the collision the truck faced slightly toward the northwest, with the right front wheel located just west of the sand ridge and the right rear wheel just east of the sand ridge. The slope was gradual to both the north and south of the crest of the rise, but the ground sloped a little more abruptly to the north than to the south. The truck driver had experienced some trouble with the battery. A family by the name of Hilgers lived in a house a short distance west of about the crest of the hill. Bernard Hilgers observed the truck standing on about the crest of the hill when he came home in a car. He offered to assist the truck driver. At that time no flares were stationed on the highway, but the taillights and the other lights of the truck were then lighted. He and the truck driver pushed the truck. After the truck was started the truck driver got into the cab and Bernard continued to push the truck north along the east side of the highway. He was located just east of the rear truck wheel. The lights went off when they started the truck and were off while the truck was being pushed down the slope at a speed of approximately two miles per hour. The deceased came from the south at a speed of about fifty miles per hour, maybe a little faster. Several of plaintiff’s witnesses testified the accident occurred about 300 feet north of the crest of the rise, another testified it was at least 300 feet north, and still another that it occurred between 300 and 400 feet north of the crest. The Plymouth car struck the truck a little west of the rear center or at the left rear end. It went underneath the truck bed and shoved the housing and rear left wheel of the truck forward. The radiator and hood of the Plymouth were badly mashed and a part of the steering wheel was broken off. The windshield of the Plymouth was broken and about one-third of it was broken out. The opening or hole in the windshield was directly in front of the driver. The principal injuries sustained were to the head of the deceased. The hole in the windshield was caused by the left or west arm of the bulldozer. Bernard Hilgers, who was pushing the truck, did not hear any brakes applied by the driver of the Plymouth. The most helpful evidence introduced by appellee which discloses what could be seen at night, looking north from the crest of the hill, was the evidence of Bernard Hilgers. The counter abstract of appellee narrates that testimony as follows: “A car coming over the crest of the hill going north cannot see a car plainly on the highway one hundred yards or more away. A car couldn’t be seen plainly until you got to the top of the hill. I have traveled it many times when I go home at night and you couldn’t see a car there, at least the lights of the car, until you get there ready to turn in the gate of my father’s place. . . . “The top of the slope is just about east of the house or a little bit south of the house.” (Italics ours.) The witness further testified: “. . . If you stood on the crest of the hill looking north you would have no trouble seeing anything to the north. The crest of the hill is about 100 yards from the place where the accident occurred.” (Italics ours.) Appellant’s abstract contains similar narrated testimony of the same witness, as follows: “After you get to the crest of the rise, then a car 100 yards ahead is in full view. When the deceased in this accident got to the crest of the hill 800 feet away from the accident, he had a full view of everything ahead.” (Italics ours.) Bernard Hilgers further testified: “At the time of the accident the truck was in motion. I was pushing on the rear portion, on the right side of the truck, about even with the rear wheel. The truck was on the right-hand side of the road. The road was about thirty feet wide. It was a clear, moonlight night. I don’t recall whether there was any wind or not. The road was a graveled highway. I saw the lights of the Eldredge car flash for an instant. “ ‘Q. You saw the lights for an instant; did you observe whether or not that car deviated in any way from the straight line that it was pursuing immediately prior to the accident? A. Well, it looked to me like he tried to turn to the west to miss the truck, at least he hit the truck on that side.’ ” (Italics ours.) Lafe Hilgers, the father of Bernard Hilgers, had seen the truck while it was standing at the crest of the hill, at a time when the lights on the truck were not burning, and by the moonlight could see that the truck was loaded with implements. He was then about thirty or thirty-five yards away from the truck. Other testimony introduced on behalf of appellee might be narrated, but it would not assist in obtaining a clear understanding of the facts and circumstances surrounding the collision. Appellants contend the evidence clearly disclosed the deceased was guilty of contributory negligence and their demurrers should have been sustained. It is not necessary to pass on that contention in order to reach a decision. The court prefers to pass that question and to decide the case on the special findings. We have reviewed the evidence introduced on behalf of appellee, for the reason it greatly illuminates the special findings. It is not contended appellants’ evidence strengthened appellee’s case. The findings of the jury were: “1. State whether the defendants’ truck was in motion prior to and at the time of the collision. A. Yes. “2. If you answer question No. 1 in the affirmative, state at what rate of speed it was moving. A. Two miles an hour. “3. State at what rate of speed the deceased was driving as he approached the truck. A. About 50 miles an hour. “4. Did the deceased reduce his speed before striking the truck? A. Yes. “5. State whether the rear lights of the truck were burning immediately before the collision. A. No. “6. State whether there was anything to obstruct the view of the deceased along the road toward the north for a distance of 400 feet after he reached the crest of the rise in front of the Hilgers house. A. No. “7. At what distance from the truck, in feet, could the deceased, in the exercise of ordinary care, by the use of the headlights on his car, first distinguish the truck ahead of him on the highway? A. One hundred feet. “8. From the point where you find that the deceased could, by the exercise of ordinary care, have first seen the truck in the highway and at the rate of speed the deceased was, going at the time, could the deceased, in the exercise of ordinary care, have turned to the left and passed the truck in safety? A. No. “9. If you answer question No. 8 ‘no,’ state what prevented him from passing the truck safely. A. Lack of time. “10. From the point where you find that the deceased could, by the exercise of ordinary care, have first seen the truck in the highway, and, at the rate oj speed the deceased was going at the time, could he, in the exercise of ordinary care, have stopped his car and avoided the collision? A. No. “11. If you answer question No. 10, ‘no,’ state what prevented him from stopping in time to avoid the collision. A. Lack of time. “12. At the rate of speed at which you find the deceased was driving immediately before the collision, in how many feet could the deceased have stopped his car? A. One hundred and sixty feet. “13. State whether it was a clear, moonlight night, when the collision occurred. A. Yes. “14. Do you find from the evidence that the deceased, immediately before the collision was driving in a reasonable, prudent manner and keeping close watch of the highway ahead of him? A. Yes. “15. If you find that the defendants were guilty of any negligence, which proximately caused the collision, state fully what such negligence was. A. No warning signals.” (Italics ours.) Appellants originally moved to have findings numbered 4, 8, 9, 10, 11, 12 and 14, set aside upon the ground they were contrary to the evidence, inconsistent with each other, and were unsupported by any evidence. The motion was overruled, and while that ruling is embraced in the specifications of error, appellants do not press that ruling now. Of course, their motion for judgment on the special findings notwithstanding the general verdict concedes, for the purpose of that motion, that the findings are sustained by the evidence. (Webb v. City of Oswego, 149 Kan. 156, 162, 86 P. 2d 553; Witt v. Roper, 149 Kan. 184, 187, 86 P. 2d 549.) Appellee admits finding number 7 is not supported by evidence, but she made no objection thereto at the trial. On the other hand, appellee affirmatively approved every part of the trial below which touched the subject of liability when she dismissed her motion for a new trial generally and specifically asked for a new trial only on the single element of damages. Just how the jury made answer number 7, in view of the clear testimony of appellee’s own witnesses to the effect that the truck could have been seen by the deceased after reaching the crest of the hill, is not easy to understand. Especially is that true in the absence of any evidence that the rays of light from the Plymouth car would have been thrown' under the truck bed. Of course, the lights could not possibly have been thrown under the truck bed at all times, if in fact they were at all, because they inevitably covered the entire truck and load at some time after the Plymouth passed the crest of the hill. According to the evidence the lights illuminated the imad 400 feet ahead even if only the dimmers were in use, and a much greater distance if the bright lights were in use. In view of the record, however, this court is bound by the findings as they stand, and we shall so accept them. In connection with finding number 7, it is well to note that the jury did, however, specifically find there was nothing to obstruct the view of the deceased to the north for a distance of 400 feet after deceased reached the crest of the rise (finding No. 6), and that finding clearly conforms to appellee’s own evidence that the truck could have been seen at night by the deceased after he reached the crest of the rise; 400 feet clearly embraced the most distant location of the truck from the crest of the hill. It is not contended the truck was not on its proper side of the road at all times. In fact, more than half of the road remained between the truck and the west side of the highway. The negligence pleaded was that the truck was parked on the highway in the nighttime without the proper lights, flares, reflectors or warming signals to warn approaching traffic of the truck, or load upon the truck, so parked. The truck was not parked on the highway at any time material to this action. The jury found against appellee on the charge the truck was parked (finding No. 1). That it was not parked, but was moving, is now conceded. The absence of warning signals is now conceded to have been appellants’ only negligence (finding No. 15). By that finding the jury absolved appellants of all other negligence charged. Since the truck was moving, the negligence is limited to the absence of those warning signals which should have been on the truck or load. By finding number 15 the jury said “no warning signals,” was the proximate cause of the collision. If that was not the proximate cause of the collision then there can be no recovery against appellants, even though appellants were negligent in failing to have warming signals on the truck or on its load. The jury specifically found the deceased could have distinguished the truck, without any warning signals, when he was still 100 feet away fxmm it (finding No. 7). In contemplation of law the deceased therefore did see the truck when he was 100 feet away. Where the absence of lights or warning signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of lights or signals cannot be said to be the proximate cause of the collision. (Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635; Cothran v. Cleenewerck & Son, 235 Mich. 351, 209 N. W. 132; Amey v. Erb, 296 Pa. St. 561, 146 Atl. 141.) See, also, McCausland v. File, 141 Kan. 120, 121, 122, 40 P. 2d 323, and cases therein cited. In the Cothran case, supra, the same principle was involved where the defendants saw the unlighted car of the plaintiff when only six rods (99 feet) away and ran into it. The court said: "In their brief counsel for the defendants argue that the plaintiff was guilty of contributory negligence. It does not appear that there was anything the plaintiff could have done to stop the defendant from running into his truck. The absence of a tail light had nothing to do with it. The defendant Blanchard saw the truck when he was six rods away, in ample time to avoid hitting it. His negligence in failing to act as an ordinarily prudent man would have acted under the circumstances was the sole cause of the plaintiff’s injuries.” (p. 354.) In Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663, it was said: "It is well settled that where the act found as negligence did not cause the injury complained of there can be no recovery. (Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469).” (p. 141.) It is true, finding number 7 does not say the deceased saw the short projection which extended beyond the truck bed. In the instant case, however, the deceased did not only run into the projection, which under the evidence most favorable to appellee extended only five feet beyond the end of the truck bed, but he actually ran into and underneath the truck itself, which he could have distinguished, and in law is held to have seen, when 100 feet away. We are bound not only by that fact but by the further highly important and undisputed fact relative to the location of his own car immediately before the collision. At that instant, just before the collision, the deceased was so close to the truck and so far to the east on the highway that when struck by the west projection he obviously could under no circumstances have missed striking the truck itself. This must inevitably be true, because the projection entered the left or west part of the windshield, which left the main portion of his car entirely to the right or to the east of the projection. When the car was that far to the east, and when the projection was passing through the windshield in front of decedent, the front part of his car necessarily was already under or was passing under the truck bed. It follows that any attempt by deceased to pass around the' truck could not have been made when he distinguished the truck 100 feet away, a distance of one-third of an ordinary city block, but was made entirely too late to miss the truck. The conduct of the deceased, under facts which must be conceded, constituted contributory negligence as a matter of law, and we simply cannot escape that conclusion. Finding number 8 was supported by no evidence, but accepting it as it stands constitutes a pure conclusion which is contrary to the common knowledge of every driver of an automobile. Furthermore, that finding is based upon the speed deceased was traveling. If he was traveling so fast that he could not turn to the left and pass the truck in safety when seeing the truck 100 feet away, he certainly was not exercising ordinary care. The truck was entirely on its right side of the road. More than one-half of the road remained between the truck and the west side of the highway. There was no other traffic, no obstruction to his view, or anything else to prevent him from turning to the left in ample time to miss both the truck and the short projection. No part of the projection extended across the center of the highway. Finding number 9 is based on finding number 8, and certainly discloses the deceased did not have his car under proper control if he did not have time to pass the truck on the left when he saw it 100 feet away. Findings numbered 10, 11 and 12 pertain to the subject of stopping. They should be considered together with findings 3 and 4, which latter findings affected his ability to stop. Finding number 3 shows deceased approached the truck at fifty miles per hour. Finding number 4 discloses deceased reduced his speed before striking the truck. We find no evidence whatever to support the latter finding, but here again we shall accept that finding as made. To what extent deceased reduced his speed is not disclosed, with the result that the finding is not very helpful, if in fact helpful at all. Whatever the reduction in speed may have been the jury specifically found that immediately before the collision the deceased was traveling so fast that it would still have required 160 feet to stop. That speed undoubtedly accounted for the fact the deceased struck not only the projection, but the truck itself, with great force. Such speed violated the well-established general rule that it is negligence as a matter of law for' a motorist to drive an automobile at night at such speed that it cannot be stopped within the distance objects can be seen ahead of it. (Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593; Berry v. Weeks, 146 Kan. 969, 73 P. 2d 1086, and cases therein cited.) Under the findings which are not general but specific in character we are forced to conclude the deceased either did not correlate his speed and ability to stop with his ability to see, or he didn’t look. Finding number 14 attempts to relieve deceased of all negligence immediately before the collision. It will be observed the jury was not asked whether the deceased attempted to pass the truck on the west. But let us assume for the moment that he did - make such attempt, immediately before the collision. If “immediately before the collision,” was intended to refer to the time when deceased may have tried to turn to the west, it was of course then too late to exercise diligence. If an emergency existed at that late moment it was created by the negligence of the deceased in failing to turn out when he had ample time to do so, or by the concurrent negligence of deceased and appellants. Under such circumstances the emergency doctrine cannot be invoked. (Barnhardt v. Glycerin Co., 113 Kan. 136, 138, 139, 213 Pac. 663; 45 C. J., Negligence, § 519.) It is, however, sufficient to say that no emergency was pleaded in the instant case. The deceased could not have exercised the care described in finding 14 and yet have run into the truck as the undisputed evidence discloses he did run into it. Furthermore, finding number 14 is general and in the nature of the jury’s conclusion drawn from facts found in detail, which detailed facts established contributory negligence as a matter of law. The conclusion must yield to the detailed findings. (C. B. U. P. Rld. Co. v. Henigh, Adm’r., 23 Kan. 347, 359; A. T. & S. F. Rld. Co. v. Plunkett, Adm’r., 25 Kan. 188; Railway Co. v. Laughlin, 74 Kan. 567, 87 Pac. 749; Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6; Roster v. Matson, 139 Kan. 124, 30 P. 2d 107.) Where the special findings are inconsistent with the general verdict and cannot be reconciled therewith, the general verdict must fall. (Carlgren v. Saindon, 129 Kan. 475, 479, 283 P. 2d 620; Diehl v. Barker, 137 Kan. 255, 20 P. 2d 534; Koster v. Matson, supra; Berry v. Weeks, supra.) Here the special findings, which are not general but specific in character, disclose the absence of warning signals was not the proximate cause of the collision and that deceased was guilty of contributory negligence as a matter of law. The industry of counsel for the respective parties has resulted in collecting probably every decision of this court dealing with exceptions to the well-established general rule that it is negligence as a matter of law for a motorist to drive an automobile at night at such speed that it cannot be stopped within the distance objects can be seen ahead of-it. Many of the decisions involve a demurrer to evidence. They therefore involve presumptions and inferences which cannot be indulged on a motion for judgment non obstante veredicto. In support of the contention that the motion for judgment on the special findings was properly overruled, appellee cites: Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663; Barzen v. Kepler, 125 Kan. 648, 266 Pac. 69; Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Chance v. Murry, 143 Kan. 476, 54 P. 2d 981; Watson v. Travelers Mutual Cas. Co., 146 Kan. 623, 73 P. 2d 64; Long v. American Employers Ins. Co., 148 Kan. 520, 83 P. 2d 674; Brakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871. We have reexamined not only the above cases, but also what has been said in the numerous decisions cited by appellee under her treatment of the demurrer to the evidence. The instant case turns on the special findings, which have been analyzed, and which the court, upon due deliberation, has concluded do not bring the instant case within any exception to the well-established general rule. Holding this view, it becomes unnecessary to treat other contentions made by either of the parties. It follows the judgment must be reversed, with directions to enter judgment for appellants. It is so ordered. Harvey and Smith, JJ., dissent.

OPINION DENYING A REHEARING The opinion of the court was delivered by Dawson, C. J.: In a motion for a rehearing counsel for appellees complain because our opinion ignored their contention “that no claim for compensation, written or oral, registered or unregistered, was made either within ninety days after the accident or within ninety days after the last payment of compensation.” The workman’s compensation act does not require an injured workman to make repeated written demands for compensation. One is sufficient. Either of claimant’s written demands dated December 2, 1935, or December 12, 1935, fully answered the purpose. Indeed, the district court so held — except as to their want of registration when sent by United States mail service. (Trial court’s conclusions of law, 149 Kan. 820.) Payments of compensation had only been suspended some four or five weeks (exact date not shown) when claimant made his written demand of December 2, 1935. Certainly claimant’s demand of that date was made within ninety days after payment of compensation was suspended — which satisfied the pertinent provision of the statute (G. S. 1935, 44-520a) governing claimant’s situation at that time. Indeed, the trial court’s findings of fact expressly recite: “These letters [of December 2 and December 12, 1935] were mailed and received by the addressee within 5 or 6 weeks after a suspension of payments.” Just how long a recipient of compensation may wait after his employer and the insurance carrier arbitrarily cut him off before instituting proceedings to compel them to continue their payments is not prescribed by statute. Consequently such proceedings could be commenced within a reasonable time. Here appellees cut him off in June, 1937. These proceedings under review were begun on February 3,1938, some eight or nine months afterwards, which could not be held to be an unreasonable delay. Moreover, there was no cross appeal in this case. A painstaking study of the record and of appellees’ motion for a rehearing does not shake our confidence in the correctness of our decision; nor have we left undetermined any legal question properly presented for our decision. The rehearing is denied.

The opinion of the court was delivered by Hoch, J.: Plaintiff brought an action for damages against several defendants alleging false representations in the sale of refrigerating equipment. Judgment was secured against one only of the defendants, the S. A. Long Company, and from that judgment the appeal here was taken. E. S. Brown, plaintiff, a resident of Alden, Rice county, Kansas, entered into a contract in the spring of 1935 with L. D. Fisher, of Sterling, Kan., for the installation of certain cooling or refrigerating equipment in a building constructed by the plaintiff at Alden. Fisher was a dealer at Sterling who handled, among other merchandise, products of the Frigidaire division of the General Motors Sales Corporation. The plaintiff alleged that the equipment had not and would not perform the service required and as promised in representations made in connection with its sale to him. Brown brought the action on July 22, 1937, for damages, and joined as parties defendant Fisher, the S. A. Long Company of Wichita, distributors of Frigidaire products, the Frigidaire division of General Motors and the General Motors Acceptance Corporation to which the sales contract and obligation had been sold by Fisher. He asked for judg ment in the sum of $1,297.12 and for cancellation of the sales contract and indebtedness held by the General Motors Acceptance Corporation. He alleged that Fisher was the agent of the Long Company, that the Long Company was agent of the Frigidaire division, that the General Motors Acceptance Corporation was the agent of the Frigidaire division and that all of Fisher’s acts and negotiations in connection with the sale of the equipment were for and on behalf of the Long Company and its principal, the Frigidaire division of General Motors and the General Motors Acceptance Corporation. Fisher demurred to the petition on the principal ground that under its allegations he was acting simply as an agent, and this demurrer was sustained. No service was made upon the Frigidaire division and that company ceased to be a party. Demurrers of the Long company and the General Motors Acceptance Corporation were overruled, and upon motion sustained by the court the plaintiff was required to elect whether in the action he was seeking damages for false representations of the seller or was asking for rescission of the contract. Plaintiff, having elected to stand on the ground of false representations and not on a prayer for rescission, the action was dismissed as against the General Motors Acceptance Corporation on the ground that no money judgment was sought against'it. This left the Long company — hereinafter referred to as Long — as the only remaining defendant, and the case proceeded to trial before a jury. At the close of plaintiff’s testimony the defendant demurred on the ground that the evidence established no cause of action against the defendant, that Fisher had not been shown to be the agent of the defendant and that under the allegations of the petition the defendant was the agent of the Frigidaire corporation, upon which no service had been attempted. The demurrer was overruled and defendant’s testimony followed. The jury awarded damages in the sum of $500 “on equipment” and $500 “on business” and answered special questions to which reference will later be made. The defendant moved for judgment in its favor notwithstanding the verdict on the ground that the verdict was contrary to the evidence and was without foundation in fact or in law, and moved to set aside the verdict and for judgment in its favor on the ground that the answers to special questions were inconsistent with the evidence. Both motions were overruled as was the motion for new trial. The action is not based on warranty but upon alleged false representations. It is not alleged that Brown dealt directly with Long in the purchase of the equipment nor in negotiations leading up to the purchase. If Long is to be held liable it must be upon the theory that there were false representations made by Fisher as his agent. The principal question presented is whether there was any substantial evidence to connect Long as principal in the sale of the equipment by Fisher and whether the jury’s answers to special questions relative to the alleged agency will stand up under the law and the evidence. There is no question that in the preliminary negotiations and in the purchase óf the equipment Brown’s direct dealings were solely with Fisher. The written contract of purchase and sale were signed only by Brown and by Fisher. Nowhere in the contract is there any reference to Long. There was no correspondence between Long and Fisher prior to the sale and installation. Fisher was a local dealer who handled not only Frigidaire products but other merchandise, and part of the equipment used in the installation of Brown’s plant was purchased from other companies. The written contract between Long and Fisher, under which Fisher was made an authorized dealer for handling certain Frigidaire products specifically provided that Fisher was not the agent and could not exercise any agency powers for Long. He was not even given exclusive right to handle refriger- - ation equipment such as that involved in this case within any local territory. This contract between Long and Fisher could not, of course, be binding as to Brown if by word or conduct Long led' Brown to think that Fisher was acting as his agent. In a painstaking examination of the record we can find no evidence to support a finding that Fisher was acting as an agent of Long in the sale and installation of the equipment. The evidence is undisputed that Fisher bought the equipment outright from Long and paid for it, and when he sold it to Brown he was selling that which belonged solely to himself. It is true that Fisher consulted Long for engineering advice with reference to the equipment before making the sale. Brown says that Fisher represented that the equipment would produce a temperature of fifteen degrees in the freezing room and alleged that it failed from the beginning to produce that low a temperature. The undisputed testimony is that Long’s recommendation of equipment made to Fisher was on the basis of a temperature of twenty degrees in the freezing room, and there was no testimony of any other recommendations or promises as between Long and Brown. Brown testified that in the spring of 1937, which was about two years after the equipment was installed, a man visited his place who said he represented Long. He .testified that he did not know the man’s name and testified he had never seen him before or after that, that at that time he told this man that they had never been able to get a fifteen-degree temperature and the man replied, “I engineered that job and I am positive that it would only — it was only engineered for twenty degrees.” He -further testified that this man demanded payment on the equipment. He also testified that another man in the spring of 1937 was there at the plant with Fisher’s son and was introduced as a Long representative, but stated that he did not discuss anything with him about the equipment or the installation.- Perhaps the principal evidence relied upon by the appellee to connect Long as a principal in the transaction was the following letter from the Long Company, written two years after the installation: “The S. A. Long Electric Company, Now the S. A. Long Company, Inc. Distributor Frigidaire Wichita, Kan., June 29, 1937. “Mr. Earl S. Brown, Alden, Kansas: “Dear Sir — In checking our data on the recommendations for your equipment at Alden, we find this job was engineered for 20° in the low temperature section and temperatures of around 40° in the high temperature section. “After installation, this equipment was checked by different men from this office and it was found that temperatures as low as 14° were secured in the low temperature section and that the equipment worked very satisfactorily during the one-year warranty period. “We find that afterwards this equipment was put to different use inasmuch as retail ice cream and retail ice were sold. Both these items were kept in the low temperature section, which would put an additional load on the compressor. “Before making new recommendations for equipment, the present delinquent payments should be taken care of and we will then engineer any of your refrigeration requirements. “Yours very truly, “The S. A. Long Company, Inc., “Frank Ryan, Service Manager.” Appellee stresses the last paragraph which stated that “the present delinquent payments should be taken care of.” It will be noted, however, that the letter does not demand payment to Long, and the other evidence was that Fisher was the sole owner of the equipment when it was sold, that any payments yet due were due to him alone and there was. no evidence that Long had any further financial interest in the matter. Long’s explanation of the state ment in the letter was that as distributors of Frigidaire products they were interested in the welfare of local dealers and not interested in giving engineering advice to those who were delinquent in payments to their local dealers. There was much conflict of testimony on'the question of whether Brown had properly insulated a building which he constructed for installation of the equipment and whether an additional load had been put upon the equipment beyond that contemplated when the sale was made. Recital of this testimony would contribute nothing to the disposition of the case. It is said by appellee that the fact of agency was determined by the jury in its answers to special questions. The questions and answers on that matter are as follows: “1. Did the S. A. Long Company perform any act or acts appointing L. D. Fisher its agent? A. Yes. “2. If your answer is ‘yes’ to the last above question, name all those acts. A. Allowing L. D. Fisher to sell their equipment and furnishing L. D. Fisher specifications for said equipment. “3. Did the dealer’s franchise between the S. A. Long Company and L. D. Fisher give Fisher the right or authority to act for or on behalf of the S. A. Long Company? A. Yes. “4. Did the defendant practice any fraud upon the plaintiff? A. Yes. “5. a. If so, when? A. When equipment was recommended to Brown. “b. If so, what fraud? Misrepresentation.” It is noted that the jury found that the Long Company had appointed Fisher its agent by “Allowing L. D. Fisher to sell their equipment and furnishing L. D. Fisher specifications' for-said, equipment.” The mere sale by Fisher of equipment purchased from Long and the furnishing of specifications by Long to Fisher do not establish Fisher as the agent of Long in the sale and installation of the equipment. The jury’s answer to question No. 3 was plainly contrary to the only evidence submitted as to the dealer’s franchise between Long and Fisher. The written contract specifically denied to Fisher the right or authority to act for or on behalf of Long. The jury found in reply to questions 4 and 5 that Long practiced fraud upon Brown “When equipment was recommended to Brown.” There was no testimony whatever that Long recommended the equipment to Brown. The only theory upon which such an answer could be supported is the theory that in making the sale and installation Fisher was acting as the agent of Long and, as already stated, there was no evidence to support that theory. Appellant’s demurrer to the evidence of the plaintiff should have been sustained and appellant’s motion for judgment notwithstanding the verdict should have been sustained. In view of the conclusions already stated other contentions of appellant and appellee need not be considered. The judgment is reversed with instructions to render judgment for the defendant.

The opinion of the court was delivered by Wedell, J.: This was originally an action to foreclose a mechanic’s lien on real estate under the provisions of G. S. 1935, 60-1401. It expanded into a contest involving ,the priorities of various liens. The plaintiff, Finnegan, was denied a lien, and while he appears on the records here as an appellant, no abstract or brief is filed by his attorney. The defendant landowners, the Ihingers, have not appealed. The defendants George Coon, Leo Sisco and Frank Whelan, the latter doing business as the Whelan Lumber Company, have appealed. Frank Whelan, however, subsequently dismissed his appeal. The contest here is between the two remaining appellants, who claim first liens by virtue of G. S. 1935, 60-1401, and the appellee, Theo C. Landon, who claims a first lien as to certain amounts by virtue of a chattel mortgage on the building which was sold by her to the Ihingers and which was moved onto the real estate in question. Appellee also claims a first lien by virtue of a real-estate mortgage which she obtained on the premises from the Ihingers when she paid, at the request of the Ihingers, a former first real-estate mortgage on the land which had been given and recorded by the Ihingers about three years prior to the performance of labor and the furnishing of materials by appellants. This first lien appellee claims upon the theory of subrogation. Appellee had taken a chattel mortgage upon the building in question for the purchase price thereof and for some other items. That mortgage was executed and recorded after the building was severed from the foundation on appellee’s land and before it was moved from the land of appellee to the premises of the Ihingers. It is concerning the judgment which gave appellee priority of liens as to certain amounts that appellants complain. The court made the following extensive findings of fact, which are not challenged: “Finding number one contains nothing pertinent in this appeal. “Finding number two describes the property on which the material -was placed and labor performed by the various claimants. “Finding number three in substance states that under contract between plaintiff and defendant Chester E. Ihinger, plaintiff moved the dwelling house from the Landon property to the Ihinger property. That the work was commenced on or about June 18, 1937, and completed on or about August 3, 1937, and that plaintiff filed his lien on or about October 16, 1937. “Finding number four in substance states that pursuant to a contract with the Ihingers, defendant George Coon, commencing on March 8, 1937, furnished labor and material for excavation of a cellar on the premises referred to, that statement of his lien was regularly filed in the office of the clerk of the district court of Shawnee county. “Finding number five concerns the lien of Cecil Thompson. “Finding number six in substance is that pursuant to agreement Frank Whelan, doing business as The Whelan Lumber Company, furnished and delivered materials between April 15 and August 31, 1937, which were used in improving property described, and that his lien was regularly filed in the office of the clerk of the district court of Shawnee county. “Finding number seven concerns the lien of Mervin Nicolay. “Finding number eight concerns the lien of Leo Sisco. “9. That during the last of- January or the forepart of February, 1937, the defendants Chester E. Ihinger and Josephine Ihinger entered into negotiations for the purchase of two houses, then located upon the property belonging to the defendant, Theo C. Landon, and that as a result of such negotiations Theo C. Landon agreed to take $1,000 as the purchase price of the two houses. “That subsequently, and about March 8, 1937, Josephine Ihinger sold one of said houses to A. E. Sisco for the sum of $450, upon which the purchaser paid the sum of $400, which was turned over by Josephine Ihinger to Theo C. Landon, and there remains due and unpaid on the purchase price of said house from Chester E. Ihinger and Josephine Ihinger to Theo C. Landon, the sum of $50. “That thereafter said house was removed from the property owned by Theo C. Landon. “10. That subsequent to the sale of the first house it was agreed between Theo C. Landon and the defendant Ihingers that the purchase price of the second house was to be $550, which the Ihingers agreed to pay. “That thereafter and on the 23d day of April, 1937, Theo C. Landon executed to Chester E. Ihinger a bill of sale for said second house which is recorded in book 37 at page 3 in the records of the register of deeds of Shawnee county, Kansas, on April 23, 1937; and at the same time and as part of the same transaction, Chester E. Ihinger and Josephine Ihinger executed and delivered a chattel mortgage upon said house to the defendant, Theo C. Landon, in the amount of $750, which is recorded in book 37 at page 2 in the office of the register of deeds of Shawnee county, Kansas, on April 23, 1937, $550 of which amount represented the unpaid purchase price of said house. “That on April 23, 1937, said house, which was the subject of said bill of sale and chattel mortgage, had been severed from its foundation, but not yet removed from the real estate owned by Theo C. Landon. “11. That prior to and during all of the times referred to in these findings, the Home Owners’ Loan Corporation held a mortgage on the premises owned by the defendant Ihingers which is involved in this action, and also upon other real estate adjacent thereto, in the amount of $2,458, bearing date of June 29, 1934, and recorded on the 21st day of August, 1934, in book 687 at page 489 of mortgages in the office of the register of deeds of Shawnee county, Kansas, which was a first lien upon said real estate. “That some time prior to March 4, 1937, the defendants Ihingers made written application to the Home Owners’ Loan Corporation for a partial release of said mortgage as to the particular tract to which they contemplated moving the house in question. “12. That on or about March 19, 1937, the defendant Ihingers entered into a contract with W. H. Spangler to remove the house in question to the property owned by them for an agreed price of $600. That after said Spangler had raised the house from its foundation and placed it upon timbers preparatory to moving the same, he requested that the defendant Ihingers pay him the sum of $200 upon his contract. That the defendant Ihingers thereupon applied to Mrs. Theo C. Landon for a loan of $200 with which to pay said Spangler’s demand; and on March 19, 1937, Theo C. Landon delivered to Chester E. Ihinger her check in the amount of $200 (defendant’s exhibit 1); which check was endorsed by Chester E. Ihinger and delivered to W. H. Spangler. “That said sum of $200 was later included in the chattel mortgage in the amount of $750 executed by the Ihingers to Theo C. Landon and referred to in finding No. 10. “That thereafter W. H. Spangler breached his contract for moving of said house. “13. That the defendant Ihingers were without funds to finance the improvements necessary upon the house in question and the moving of the same and other expenses incident thereto, and made efforts to secure funds therefor. Among others to whom they made application was the defendant, Theo C. Landon. “That Theo C. Landon stated that she would assist them; but at no time did she promise to finance the expenses incident to the removal and improvement of said house beyond the amounts and in the manner stated in these findings. “That Theo C. Landon did not agree with any creditor of the defendant Ihingers to finance any bills incurred by them incident to the moving or improvement of said house, for which liens or claims have been filed in this case. “14. That the defendant Ihingers represented to Theo C. Landon that the Home Owners’ Loan Corporation would not allow the house in question to be placed upon the foundation prepared for it on the Ihingers’ property until a partial release of its mortgage on said property had been obtained, and requested that she furnish the money to secure such release. That pursuant thereto Theo C. Landon agreed to and did loan to the Ihingers the sum of $872, which was used by the said Ihingers to procure a partial release of the mortgage held by the Home Owners’ Loan Corporation. “That a portion of said $872 was applied upon the principal of said mortgage, part in payment of interest on said loan which was then due and unpaid, and part in payment of taxes then due upon said real estate. “That the payment of said $872 was evidenced by a check drawn by Theo C. Landon on the National Bank of Topeka on June 15, 1937, payable to the order of Chester E. Ihinger (defendant’s exhibit 4); and at the time of the delivery of said check Theo C. Landon advised the Ihingers that she would loan them no more money. “15. That on June 15, 1937, to secure the payment of said loan of $872, together with other money owing to her by Chester E. Ihinger and Josephine Ihinger, the said Ihingers executed and delivered to Theo C. Landon a real-estate mortgage in the amount of $1,672 upon the premises described in finding No. 2. That said amount of $1,672 was made up of the $872 loan referred to in finding No.'14, the $550 remaining unpaid on the purchase price of said house, the $200 advanced to pay the demand of W. H. Spangler referred to in finding No. 12, and $50 representing the unpaid balance due upon the same of the first house. “That said mortgage was recorded on June 16, 1937, in book 740 of mortgages, at page 575 of the records of the register of deeds of Shawnee county, Kansas. “16. That on June 15, 1937, the defendant Ihingers entered into an agreement with Theo C. Landon to pay to her the sum of $25 per month from rentals collected by them from the property at 614 Grand Court, in Highland Terrace Addition to the city of Topeka, Kan., said amount to be applied upon their indebtedness as aforesaid; but that no money has been paid by the Ihingers, or collected by Theo C. Landon, under said agreement. “17. That under date of May 18, 1938, the Home Owners’ Loan Corporation, by Bernard Morman, its Omaha regional treasurer, executed and subsequently delivered to the defendant Ihingers a partial release of its mortgage, particularly as to the tract involved in this action and referred to in finding No. 2. That such partial release of said mortgage was retained by the defendant Ihingers after its delivery to them until the trial of this case, and was never placed on record by them. “That Theo C. Landon subsequently obtained from the Home Owners’ Loan Corporation a copy of said release. “18. That under the terms of the mortgage referred to in finding No. 15, the defendant Ihingers were to keep the property involved in this action insured, but that they failed to do so; and on the 25th day of July, 1937, Theo C. Landon procured a policy of insurance in the amount of $3,500 fire and $3,500 wind and tornado insurance upon said property, for which she paid a premium of $38.58. That attached to said policy (defendant’s exhibit No. 10) is a ‘standard mortgage clause’ providing that loss, if any, shall be paid to Theo C. Landon, mortgagee, as her interest may appear. “19. That at no time during the transactions referred to in these findings was Chester E. Ihinger or Josephine Ihinger, his wife, the agent or representative of the defendant, Theo C. Landon. “20. That in the first amended petition of the plaintiff, M. J. Finnegan, he pleads that he has filed a mechanic’s lien against the property of the defendant, Theo C. Landon, which is recorded in book 8, at page 29, of the record of mechanics’ liens in the office of the clerk of the district court of Shawnee county, Kansas. “That plaintiff has failed to prove that he is entitled to any lien against the property of Theo C. Landon, and that said lien so filed should be canceled and released of record.” The conclusions of law were as follows: “1. That Theo C. Landon is entitled to recover judgment against the defendants Chester E Ihinger and Josephine Ihinger upon their promissory notes and mortgage in the sum of $1,672, with interest thereon at the rate of 6% per annum from the 15th day of June, 1937, to this date, or an aggregate sum of SI,784.86. “That of said sum of $1,672, Theo G. Landon is entitled to a first lien upon the premises in question in the amount of $872, plus interest from June 15, 1937, by reason of being subrogated in that amount under the prior lien of the mortgage executed in 1934 and held by the Home Owners’ Loan Corporation. “2. That under the terms of the real-estate mortgage for $1;672, Theo C. Landon is entitled to recover from the defendants Chester E. Ihinger and Josephine Ihinger the sum of $38.58 with interest thereon at the rate of 6% per annum from the 26th day of July, 1937, to this date, or the aggregate sum of $40.87 which, together with the $872 referred to in conclusion No. 1, is a first lien upon said property in favor of Theo C. Landon. “3. That Theo C. Landon at all times has had a first and prior lien upon the house purchased by the defendants Chester E. Ihinger and Josephine Ihinger for the unpaid purchase price thereof until April 23, 1937, the date of the execution of the bill of sale and chattel mortgage; and thereafter had a first and prior lien upon said house by virtue of said chattel mortgage. “That the mechanics’ lien claimants herein had liens only upon whatever interest Chester E. Ihinger and Josephine Ihinger had in said house; and in conveying the title to said house and changing the formi of the security for the existing debt due Theo C. Landon for the purchase price thereof, no other lien could intervene and become superior thereto. “4. That as a part of said sum of $1,672 was included an amount of $550 representing the purchase price of the house moved on to the premises of the Hungers. That by reason of the lien that Theo C. Landon had upon said house for its purchase price and under said chattel mortgage, she is entitled to a lien thereon inferior to that mentioned in conclusions Nos. 1 and 2; but superior to the liens claimed by the mechanics and materialmen hereinafter referred to. “5. That the following-named parties are entitled to recover judgments against the defendants Chester E. Ihinger and Josephine Ihinger for the amounts set forth herein: “M. J. Finnegan, $600 with interest at 6% from August 3, 1937, to this date, or a total of $635.70. “George Coon, $78, with interest at 6% from November 23, 1937, to this date, or a total of $81.22. “Frank Whelan, doing business as the Whelan Lumber Company, $358.30 with interest at 6% from September 1, 1937, to this date, or a total of $378. “Cecil Thompson, $55 with interest at 6% per annum from September 15, 1937, to this date, or a total of $57.85. “Mervin Nicolay, $42 with interest at 6% per annum from August 15, 1937, to this date, or a total of $44.41. “Leo Sisco, $128 with interest at 6% per annum from June 1, 1938, to this date, or a total of $129.28. “6. That the amounts referred to in conclusion No. 5 are secured by mechanics’ liens filed by the respective claimants, and in the aggregate constitute a third lien upon the premises described in finding No. 2. “7. That the defendant Theo C. Landon has a lien upon the house located on the premises in question in the amount of $216.33 for money advanced by her to the Hungers, and paid to W. H. Spangler; which lien is junior and inferior to the liens heretofore found. “8. That the sum of $750 secured by the chattel mortgage referred to in finding No. 10 has never been paid nor released. That the real-estate mortgage referred to in finding No. 15 was taken as additional security for the items included in said chattel mortgage. “9. That the plaintiff M. J. Finnegan, upon the issues presented against the defendant Theo C. Landon, and under the various pleadings filed herein, is not entitled to recover, and the mechanic’s lien filed by him upon the property of Theo C. Landon on the 16th day of October, 1937, and recorded in book 8 of Mechanics’ Liens, at page 29, in the office of the clerk of the district court of Shawnee county, Kansas, should be released, extinguished and canceled of record. “10. That the lien claimants herein are charged with constructive notice of the bill of sale and chattel mortgage recorded on April 23, 1937. “Í1. That the costs of this action be taxed against the defendants Chester E. Ihinger and Josephine Ihinger.” Judgment was rendered in conformity with the conclusions of law. Appellants contend the findings of fact do not support the conclusions of law. In this connection appellants make two general contentions. One contention is that appellee was not entitled to be subrogated to the rights of the holder of the former real-estate mortgage. They urge appellee was a mere volunteer as to the payment of that mortgage and as such volunteer was not entitled to subrogation. The principal case relied upon is Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453. That case, however, supports appellee’s contention, who also relies thereon. It was there held: “Where a stranger, a mere volunteer, a mere intermeddler, pays the debt of another, he cannot be subrogated to the rights of the creditor. “But where a person pays a debt, which is secured by a mortgage, at the instance and request of the debtor, with the agreement that the person paying the debt shall have a mortgage lien upon the real estate then mortgaged to secure such debt, and a new mortgage is given, but is void, the party furnishing the money may be subrogated to the rights of the original creditor.” (Syl. If 1, 2.) Appellee, in the instant case, was not a mere volunteer, nor was she an intermeddler in the payment of the mortgage debt. She paid the mortgage debt at the express request of the mortgagors when the mortgage was subject to foreclosure by reason of default in the payment of interest and taxes. The payment was for the benefit of the mortgagors, as the mortgagee refused to delay foreclosure if the building was to be moved onto the premises. The Ihingers wanted the building, and appellee paid the mortgage. The existing recorded real-estate mortgage, which appellee paid, was clearly prior to any lien claims of appellants. Subrogation is an equitable doctrine, and appellee, upon well-established equitable principles, was clearly entitled to be subrogated to the rights of the former holder of the real-estate mortgage. (Yaple v. Stephens, 36 Kan. 680, 687, 14 Pac. 222; Bowling v. Garrett, 49 Kan. 504, 523, 31 Pac. 135; Armstead v. Neptune, 56 Kan. 750, 753, 44 Pac. 998; Zinkeison v. Lewis, 63 Kan. 590, 593; 66 Pac. 644; Warne v. Morgan, 68 Kan. 450, 75 Pac. 480; Crane v. Daniel, 121 Kan. 3, 5, 245 Pac. 1017; Federal Land Bank v. Hanks, 123 Kan. 329, 254 Pac. 1040; Kuske v. Staley, 138 Kan. 869, 28 P. 2d 728.) What about appellants’ contention that their liens should have been held to be prior to the chattel mortgage lien of appellee? .The claim of appellant Coon was based upon labor performed in excavating the basement and for two hours of grading work upon the premises. The excavating work was commenced on March 8, 1937. The claim of the appellant Sisco was based upon labor performed upon the foundation of the building prior to the placement of the building thereon, and was commenced April 1, 1937. It will be observed the court allowed priority to appellee on her chattel mortgage only to the extent it 'constituted the purchase price of the building. The building on which the chattel mortgage was given constituted personalty. The building was not constructed on the land of the Ihingers. It was a two-story frame residence building and was moved from the land of appellee across the highway onto the land of the Ihingers. Title to the building was conveyed by bill of sale. The chattel mortgage was executed and recorded after the building was severed from the land, but before it was moved from the land of appellee. The chattel mortgage provided that the building constituted personalty and remained personalty until the mortgage debt was paid. The court, in the instant case, found it was the intention of the parties the building should constitute and remain personalty until the chattel mortgage was paid. The finding is not disputed here and indeed could not be disturbed on appeal, as there is ample evidence to support it. That the parties to the transaction had the right to agree the building should remain personalty and that their rights should be determined accordingly is no longer open to dispute under the numerous decisions of this court. (Eaves v. Estes, 10 Kan. 314; Cent. Branch Rld. Co. v. Fritz, 20 Kan. 430, 434, 436; Comm’rs of Rush County v. Stubbs, 25 Kan. 322; Docking v. Frazell, 38 Kan. 420, 17 Pac. 160; Bromich v. Burkholder, 98 Kan. 261, 265, 158 Pac. 63; Lumber and Grain Co. v. Eaves, 114 Kan. 576, 580, 220 Pac. 512; McCrae v. Bradley Oil Co., 148 Kan. 911, 913, 84 P. 2d 866.) In the early case of Comm’rs of Rush County v. Stubbs, supra, it was said: “Now from this statement it it clear that this building was at one time the property of the plaintiff; that it never intended to abandon the ownership; and that the building could be moved without destruction. It was placed by the plaintiff upon land to which defendant Stubbs had an inchoate title, with the understanding that it should remain the property of the plaintiff. How did the plaintiff lose title? The manner in which it was annexed to the ground did not prevent the intention of the parties from remaining effective. The building was, it is true, on a stone foundation, but it was held there by its own weight. That it could be moved, without destruction, is evident not merely from the description of the building, but also from the fact that it had been once moved . . . The intention of the parties made this building personalty, and neither the manner of annexation nor any other matter prevented this intention from being carried into effect.” (pp. 324, 325.) In Docking v. Frazell, supra, it was held: “A building occupied for a hotel and moved by a tenant upon a vacant city lot, which is held under a lease for a term of years, in which it is provided that at its expiration the lot shall be surrendered in the same condition it was at the date of the lease, is personal property. “A chattel mortgage given upon such hotel building would be valid, and a foreclosure and sale thereunder would convey the property to the purchaser at such sale.” (Syl. ¶¶ 1,2.) That the building, in the instant case, must be regarded as personalty cannot be doubted. This brings us to the question of whether the liens of appellants are prior to that portion of the chattel mortgage which represented the purchase price of the building. The pertinent portion of G. S. 1935, 60-1401, relied upon by appellants, provides: “Such lien shall be preferred to all other liens or encumbrances which may attach to or upon said land, building, or improvement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures, or machinery, the planting of trees, vines, plants or hedge, the building of such fence, footwalk, or sidewalk, or the making of any such repairs or improvements.” The building was personalty. It remained personalty and remained subject to the recorded chattel mortgage. The lien of appellants could attach only to such interest in the property of the Ihingers as the Ihingers had, and to no other. Appellants knew the building was not erected on the premises, but was being moved onto the premises. They were placed on inquiry to ascertain the title to such personalty. The means of such knowledge was at hand. Had they made inquiry they would have ascertained the fact that the building had not become a part of the realty. In Lumber and Grain Co. v. Eaves, 114 Kan. 576, 220 Pac. 512, in which a lumber company took a real-estate mortgage for material furnished, it was said: “At the time of the delivery and recording of the bank’s chattel mortgage, the plaintiff, because of the conditions, was bound to know that the building was personal property. “Section 1 of chapter 234 of the Laws of 1919 provides: “ ‘Every mortgage or conveyance intended to operate as a mortgage of personal property, . . . shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers, and mortgagees in good faith unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds,’ etc. “This statute, with slight modifications, has been the law for a long period of years. If, under its provisions, a chattel mortgage is void as to subsequent purchasers and mortgagees in good faith if not recorded, conversely, it is valid as to them if recorded.” (p. 581. See numerous cases therein cited.) In a specially concurring opinion by Mr. Justice Burch it was said: “I concur in the result, for the following reasons: The lumber company sold the lumber for the building to its mortgagor. When the lumber company took its mortgage it was charged with notice of what 'the record revealed and suggested regarding the mortgagor’s land title. The record disclosed the mortgagor did not have title until long after he purchased the lumber and erected the building. This fact suggested some kind of arrangement under which the building was placed on the land. Inquiry would have revealed the building was a chattel when erected, and was covered by chattel mortgage when title was taken.” (Italics inserted.) (p. 582.) Moreover, the portion of the chattel mortgage which was allowed as a prior lien constituted the purchase price of the building and as such was entitled to priority over the claims of appellants. (Pratt v. Topeka Bank, 12 Kan. 570; Greeno v. Barnard, 18 Kan. 518; Bond v. Westine, 128 Kan. 370, 373, 278 Pac. 12; Noll v. Graham, 138 Kan. 676, 27 P. 2d 277, and cases therein cited.) In the Noll case it was said: “The general rule is that a mortgage given for the unpaid part of the purchase price, simultaneously with a deed for the property and as a part of the same transaction, takes precedence of prior judgments and all other existing and subsequent claims and liens of every kind against the mortgagor. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49, 114 A. S. R. 470, 6 Ann. Cas. 44; Mortgage Co. v. Winters, 94 Kan. 615, 146 Pac. 1012, Ann. Cas. 1916C 956; Kuehn v. National Bank, 117 Kan. 717, 232 Pac. 1060; 41 C. J. 528; 19 R. C. L. 416.) Although it has been held in some cases that purchase-money mortgages are subordinate to liens for work authorized by the vendor or done with his knowledge or consent. (See White v. Kincade, 95 Kan. 466, 148 Pac. 607, Ann. Cas. 1916B 667.) For a note on priority as between mechanics’ liens and purchase- money mortgage, see 72 A. L. R. 1516. . . . The judgment of the lower court allowing the mechanics’ liens priority was erroneous. The appellant should have been allowed a first lien insofar as the purchase price included in its mortgage is concerned, the mechanics’ liens should have been allowed as coordinate second liens, and the balance of appellants’ mortgages should have been allowed as a third lien.” (pp. 683-686.) (See, also, G. S. 1935, 67-305, and Home Owners’ Loan Corp. v. Humphrey, 148 Kan. 779, 85 P. 2d 7.) Appellants urge appellee abandoned her right to consider the building as personalty when she later took a real-estate mortgage covering the entire debt and purchased insurance, under the insurance clause of the real-estate mortgage, when the Ihingers failed to provide the insurance. The contention cannot be sustained. Neither the chattel mortgage nor the rights acquired thereunder by appellee were ever abandoned. The chattel mortgage was not released, and the record discloses the real-estate mortgage was taken as additional security. Appellee received only one satisfaction of the amount for which the chattel mortgage was given, and the fact that such amount was also covered by the real-estate mortgage did not vitiate the pertinent fact that the extent to which priority was given, whether under the chattel mortgage or under the real-estate mortgage, constituted only the purchase price of the building. The court was entirely within the law when it divided the mortgage so as to allow priority to the extent of the purchase price. In Bond v. Westine, supra, it was said: “It has been held that a mortgage may be divided; that so far as it is a purchase-money mortgage it constitutes a lien on the property prior to other liens, while the part which does not represent purchase money does not. (Pratt v. Topeka Bank, 12 Kan. 570; Greeno v. Barnard, 18 Kan. 518.) A similar question was considered in New Jersey Bldg., Loan and Invest. Co. v. Bachelor, 54 N. J. Eq. 600, 35 Atl. 745, where it was said substantially that a vendee of land, simultaneously with the delivery of his deed, gave a mortgage to secure borrowed money, a part of which was used to pay for the land, and it was held that as to such part the lien of such mortgage was prior to a mechanic’s lien for improvements made in part before delivery of the deed to the vendee, and under a contract with the vendee made before such delivery, but as to the balance of the mortgage the mechanic’s lien was prior.” (p. 373.) To the same effect is Noll v. Graham, supra, 685. Authorities cited from other jurisdictions on various contentions of appellants have been examined. They are not controlling in view of our own decisions, which adequately cover every issue raised. The judgment is affirmed. Harvey, J., dissents.

The opinion of the court was delivered by Dawson, C. J.: This was an action for damages for injuries sustained by plaintiff when she fell on a defective sidewalk in Kansas City. Impleaded with the city were one Reddick, a plumber, and the Maryland Casualty Company, a corporation engaged in writing casualty insurance. The accident occurred about 10 o’clock p. m. on August 11, 1937, as plaintiff, a woman of sixty-five years, in company with two other women, was returning to her home after attending a public meeting nearby. Plaintiff alleged that a defect existed in the brick sidewalk, to wit, a depression about three feet by five feet in area and a foot deep. She alleged that some time prior to August 11, Reddick, a plumber, obtained a permit to make an excavation in the sidewalk for the purpose of installing some plumbing in an adjacent house; that Reddick made such excavation, but negligently failed to refill it properly, whereby the alleged depression resulted and so remained for four days; that the city knew or should have known of its existence in time to have repaired the sidewalk before the accident and injury to plaintiff. Plaintiff also alleged that the city had an ordinance which required plumbers to execute a bond to save it harmless from damages caused by negligence in the performance of plumbing work, and that Reddick had given such a bond and that the Maryland Casualty Company was the surety thereon. The two defendants, Reddick and the Casualty company, were dismissed out of the case before the trial. The issues between plaintiff and the defendant city were tried before a jury, which returned a general verdict for plaintiff in the sum of $4,000, and judgment was rendered thereon. The city appeals, urging certain objections to the judgment, the first of which relates to want of evidence that the city had actual or constructive notice of the defective sidewalk. However, one witness for plaintiff testified that the defect had existed for about two weeks. Another testified “it had been there quite a long while.” A clerk in the city engineer’s office whose duty it was to issue permits to plumbers who desired to make excavations in sidewalks testified that a permit was issued to Reddick on July 23, 1937, to make an excavation at the place where plaintiff was injured nineteen days later. Accompanying such permit it was the practice to issue a card which the plumber should sign and return when the work was completed. Upon its return it became the duty of the city engineer’s office to notify the department of streets, whose business it was to inspect the work and see that the excavation was properly filled lip. There was testimony that Reddick never returned the card and consequently the usual routine inspection did not follow. This testimony was sufficient to surmount the demurrer thereto and to take the issue of fact to the jury, both on the length of time the defect existed, and that in the circumstances the city could not avoid its duty to know the condition of the sidewalk following the making of the excavation. That there was such a defect or depression in the sidewalk sufficient to cause plaintiff to fall, although controverted, was well supported by evidence. The city’s next complaint pertains to the size of the verdict, $4,000. It argues that it was excessive and showed passion and prejudice. Plaintiff’s evidence tended to show that when she fell and injured herself her two companions assisted her home, a distance of one and a half blocks, and that she suffered much pain; that next day her physician discovered her right hip was dislocated and that he manipulated the trochanter back into its normal position and immobilized her back to facilitate healing; that laceration of ligaments in the sacro-iliac region was indicated; that her knee was discolored and swollen; that plaintiff was in bed seventeen days; that it was six or seven weeks before she “could get around,” and that she used crutches until Christmas; that her back still pained her at the time of the trial; and that she had become very nervous and did not sleep well. It will thus be seen that there was testimony sufficient to support a verdict and judgment in favor of plaintiff for a substantial sum of money. But before ruling positively on thé claimed excessiveness of the verdict we must take note of another and related error of which the defendant city complains. It centers about the injection of extraneous matter into this lawsuit which permitted the jury to infer that any verdict it might render against the city would ultimately have to be paid by the Maryland Casualty Company, which was surety on the bond of Reddick, the plumber, whose alleged negligent refilling of the excavation in the sidewalk caused the depression into which plaintiff stumbled and injured herself. It is somewhat difficult for an appellate court to suppress a feeling of distrust as to the correctness of a judgment in which such extraneous matters have been brought into it as would almost inevitably affect the result prejudicially. Here there never was any excuse for impleading Reddick, the plumber, and the Casualty In surance Company in this lawsuit; and when at the inception of the trial and before a jury was called the plaintiff dismissed those two defendants out of the lawsuit all reference to the casualty company should have been suppressed. Indeed, the trial court did rule— “. . . The plaintiff should refrain, as should the defendant, bringing before this court and jury in further proceedings any reference to the defendant, The Maryland Casualty Company.” On their voir dire counsel for plaintiff inquired if any of the prospective jurors were employed by the Maryland Casualty Company. Counsel for the city objected for the reason that the question and inference would be highly prejudicial to the city. The trial court again ruled: “You should not go any further into the question of the Maryland Casualty Company; having asked the question generally and no juror having responded that he was employed by them, I think that should end the questions relative to the Maryland Casualty Company. I will overrule the motion to discharge the panel.” Repeatedly in the course of the examination of witnesses, and notwithstanding repeated rulings of the court, as quoted above, that no further reference be made to the matter of insurance, the fact of Reddick being a licensed plumber who was required to give a liability bond was brought into the case to the prejudice of the city. In Witt v. Roper, ante, p. 722, we held that a verdict and judgment tinctured with this manifest infirmity could not receive an unqualified affirmance by this court, and that plaintiff would have to choose between a drastic remittitur and a new trial. No less heroic treatment will justify this court in dealing with the case at bar. A careful study of this record constrains us to hold that the judgment is excessive; that it must be reduced to $2,500 with the alternative that a new trial be granted, at the.option of the plaintiff, and the cause should be remanded to the district court with instructions to that effect. Some other objections to the judgment are urged. These have been considered, but none of them is of sufficient gravity to affect the general result, nor do they require discussion. The cause is remanded to the district court with instructions to give plaintiff the option of a judgment for $2,500 or a new trial.

The opinion of the court was delivered by Harvey, J.: This was an action on a “statement of indebtedness.” The trial court sustained a demurrer to the petition. Plaintiffs have appealed. The question presented is whether the three-year or the five-year statute of limitations applies. We are told the specific question presented is new in this state, and this reminds us of the language used by Chief Justice Crozier in Searle and Others v. Adams, 3 Kan. 515, 518, when, in August, 1866, upon a “day of wilted collars and oily butter,” he marveled that a new question should arise under the statute of limitations. The petition, filed August 5, 1938, alleges that Dr. J. B. Morton died in Kingman county February 4, 1933, and that plaintiffs were duly appointed and qualified as administrators of his estate, and have continued to act as such; that at the time of his death defendant was owing him an open account for medicine and medical services in the sum of $373.50; that thereafter and on September 1,1933, defendant, for a valuable consideration, executed and delivered to plaintiffs an instrument in writing, of which the following is a copy: “Statement of Indebtedness “No. 544. Sept. 1, 1933, the undersigned hereby acknowledges and agrees to pay the following items to— “Charles Morton and E. W. Strong, as administrators of J. B. Morton, deceased. “An open account of $373.50 with 6% per annum interest from Feb. 4, 1933, until paid. “A note of $-, dated-drawing-% per annum interest until due, namely, -, and -% per annum interest thereafter until paid. “The undersigned state and represent that they believe they can pay a part or all of said indebtedness on or commencing with-, 193 — . “If any error in account, to be corrected. “Belle Leslie, Nashville, Ks., “Debtors owing Dr. J. B. Morton in his lifetime.” It is further alleged that defendant had neglected and refused, on demand, to pay such indebtedness, and there was due thereon the sum of $496.75, with interest, for which sum judgment was prayed. The demurrer was upon the ground that the petition failed to state a cause of action, and particularly that it shows upon its face that the purported cause of action is barred by the statute of limitations. It will be observed the action was brought more than three years but less than five years after the statement of indebtedness was executed. G. S. 1935, 60-306, provides that civil actions other than for the recovery of real property can only be brought within five years upon any agreement, contract, or promise in writing, and within three years upon a contract not in writing, express or implied. Appellants argue that since the instrument sued upon is in writing and contains within it an agreement to pay, it is governed by the five-year clause of G. S. 1935, 60-306. In their brief they express uncertainty as to how this instrument should be classified — whether it should be regarded as a nonnegotiable note, or whether it should be regarded as an account stated. In support of the first view appellants stress the phrase “agrees to pay.” This does not differentiate it from an account stated, which always contains an express or implied promise to pay. Perhaps the instrument may be classified as an account stated. Obviously the amount due was agreed upon, hence the items which go to make up the account are no longer important, unless error should be discovered. It was agreed that any error in the account is to be corrected, but an agreement to correct errors in the account does not prevent it from being an account stated. (1 C. J. S. 704.) The promise to pay an account rendered converts it into an account stated. (1 C. J. S. 713.) Ordinarily the statute of limitations on an account stated is three years. (Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P. 2d 896; McNab Bess Oil Co. v. Commonwealth O. & C. Co., 142 Kan. 739, 52 P. 2d 363.) If the agreement to pay, in an account stated, carries any greater significance than the implied promise to pay the account, there must be a new consideration for such agreement. (1 C. J. S. 714.) An executor may sue on an account stated. (1 C. J. 703.) A question is suggested as to whether plaintiffs, as administrators, had any authority to take an account stated unless specifically authorized by the court to do so, since it had the effect of making a new obligation, which took the place of the old one-, and extended the time for the debtor to pay. We find it unnecessary to decide this specific question, and therefore pass it. It is clear from an examination of the instrument sued upon that the parties did not intend to change the account into a note, for the parts of the instrument to be used for that purpose were left blank. Obviously they still thought of it as being an account. Appellee invokes the provisions of our statute, G. S. 1935, 60-312, which reads: “In any case founded on contract, when any of the principal or interest shall have been paid, or an acknowledgement of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” Under this section any of three things, (1) payment on an existing debt, or (2) the acknowledgment in writing of an existing liability thereon, or (3) a promise in writing to pay the same, starts anew the statute of limitations which would have been applicable had an action been brought on the original debt or claim. In other words, had the original debt been evidenced by a promisory note to which the five-year statute of limitations applied, the partial payment, or the acknowledgment in writing of an existing liability, or a promise in writing to pay, would start again the five-year statute of limitations. If the original debt or claim is one to which the three-year statute of limitations would have applied, under G. S. 1935, 60-306, the partial payment, or the acknowledgment in writing of an existing liability, or the promise in writing to pay, would start anew the three-year statute of limitations. We think this statute is not only available to the defendant, but that in the situation here presented the plaintiffs are bound by it; that is to say, at the time this action was brought an action on the original account would have been barred by the statute of limitations. They are forced to claim that the statute began to run anew under and by virtue of this section and because of the statement of indebtedness defendant signed. This statement of indebtedness contains no more than two of the three things, any one of which under this section would have started anew the running of the statute of limitations. The statute of limitations which was started anew was the one applicable to the account, which defendant, in 'writing, acknowledged and promised to pay, as she was authorized to do under this section. This section states the effect to be given to such a written acknowledgment and promise. The result of this analysis is that the trial court correctly held the three-year statute of limitations applicable. Some authorities are cited from other states, which we have examined and find not to be very helpful, for the reason that the statutes being construed differ materially from our own. For the same reason the general authorities on the question are not very pertinent. Counsel recognize the authorities cited are not directly in point, but quote or refer to certain language used which they deem persuasive. It would serve no useful purpose to refer to and analyze these authorities, for, after all, our decision must be based on an interpretation of our own statutes. We are convinced the instrument sued on is one authorized by our- statute (G. S. 1935, 60-312); that it must be interpreted in harmony with that statute, and so interpreted that it did no more than to start again the running of the three-year statute of limitations on the original account. We find no error in the record. The judgment of the court below is affirmed.

OPINION ON REHEARING The opinion of the court was delivered by Smith, J.: This was an action to partition real estate. The trial court granted the prayer of an intervening petition, reformed a conveyance and held the intervenor to be the owner of certain real estate. This appeal is here on a rehearing. (For original opinion of reversal see ante, p. 132, 91 P. 2d 41.) After that opinion was handed down a rehearing was allowed and the hearing set for October. It will not be necessary to set out the facts in this opinion, since they are set out fully in the former opinion. The trial court granted reformation of the conveyance on an intervening petition. This court on the previous appeal held that the relief for which the intervenor asked in his petition was barred by the statute of limitations, and reversed the judgment of the trial court. The intervening petition charged the plaintiff with fraud in securing the conveyance or, in the alternative, with mistake. The trial court did not find the plaintiff guilty of fraud, but did find that both grantor and grantee had been mistaken as to the actual interest in the real estate owned by the grantor. In the petition for a rehearing, and later, in the argument in this court, intervenor complains that this court considered the appeal as though the trial court had found the plaintiff guilty of fraud, whereas the court found mutual mistake. We have examined the record again and have concluded that there is some ground for the criticism. Our opinion is not as clear as it should be. Accordingly we have examined the authorities on the point of when the statute of limitations begins to run against a cause of action to reform a conveyance on account of mutual mistake. This conveyance was made September 27, 1927. The defendant became of age September 26, 1927. He filed this petition in April, 1937. The intervenor argues that he did not learn of the mistake until a short time before he brought his action and that the statute did not begin to run until he had discovered it. The reference to fraud in the former opinion was brought about by the fact that the court found a confidential relationship existed between the intervenor and his father from the time when the conveyance was made in 1927 until just before he filed his action in 1937. At the same time that the intervenor urges that the trial court took fraud out of the case by the findings made he argues the case here as though this relationship of the parties prevented the statute of limitations from running against his cause of action. The trouble about that argument is that if the father was mistaken, as the trial court found, then the relationship with his son, confidential or otherwise, would have no effect on the running of the statute of limitations. He could not be guilty of fraud if he was mistaken about the true facts. It appears that the will of Isaac Nees, the grandfather of the intervenor, was filed for probate in Jewell county June 12, 1922, and under it appellant’s mother was given a fee-tail estate. The partition action of Allen v. Nees was filed in the Jewell county district court and decided before the death of the mother, and hence before the execution of the deed we are considéring. In that action her title in fee tail on lands partitioned to her was adjudicated. When the intervenor became of age he was bound to take notice from the public records of his own title to the property; These records would have advised him that the court had held in effect that he had inherited one-fifth of the property. Irrespective of whether the statute started to run when the claimed mistake was made or when it was discovered, it was running against this cause of action when the deed was given September 27, 1927. There remains, then, the question of what statute applies. The intervenor argues for the first time on the rehearing that the action was one for recovery of real property and that the statute of limitations which applies to it is G. S. 1935, 60-304, 4th subdivision. This section provides that the period within which such actions may be brought is fifteen years. We are not furnished any authorities to this effect and we have concluded that the section does not apply. Since this is an action for relief on the ground of mutual mistake, we hold that it is governed by G. S. 1935, 60-306, 6th subdivision. That section reads: “An action for relief not hereinbefore provided for can only be brought within five years after the cause of action shall have accrued.” As has been demonstrated heretofore, about ten years elapsed between the time when the statute started to run and the commencement of this action. The question of whether the statute was tolled was settled by the former opinion and will not be reconsidered here. In addition to what has been said here there is another reason why the decision announced in the former opinion will not be disturbed. In that opinion we said: “This action was one to declare a constructive trust to set aside or reform a deed. It was a suit in equity. Apart from any question of statutory limitation, courts of equity will discourage laches and delay in the enforcement of rights. - We have concluded that there was such a change of circumstances here, in that the land has depreciated to such an extent that the plaintiff will not realize the amount he put into it, and the plaintiff having paid off a large mortgage in reliance upon the agreement, the above facts, together with the delay in bringing the action, constituted laches. (See Thompson v. Milliken, 93 Kan. 72, 143 Pac. 430; Rice v. Kilworth, 132 Kan. 418, 295 Pac. 700; Edwards v. Moore, 143 Kan. 447, 54 P. 2d 983, 19 Am. Jur. 339.)” (p. 142.) Nothing was said in the petition for a rehearing or in the briefs on the rehearing to cause us to change the above. We therefore adhere to our original opinion of reversal.

The opinion of the court was delivered by Harvey, J.: This appeal involves the question of the authority of the state tax commission to make an assessment of income taxes on November 20,1937, of income for the year 1933. The S. H. Kress and Company, hereinafter called the taxpayer, is a Colorado corporation authorized to do business in this state, and engaged in the mercantile business. On April 12, 1934, it filed its income-tax return for the calendar year 1933 and paid the taxes shown thereby. On November 29, 1936, it filed an amended return showing an additional tax, which was paid, and on February 13, 1937, the tax commission assessed an additional tax for interest as shown by the amended return, and this was paid. There is no controversy now about any of these assessments or payments. After an audit of the books of the taxpayer, and on November 20, 1937, the tax commission assessed an additional tax for the year 1933 for a sum which, after a hearing, and on June 28, 1938, was reduced to $1,025.71, and the tax commission issued its order requiring that sum to be paid. The taxpayer appealed to the district court, where it was stipulated that the sum last determined should be paid if the assessment was made within the time authorized by statute, but if the assessment had not been so made then the tax should not be paid. The trial court ruled the assessment was made in time. The taxpayer has appealed. Our first income-tax statute was enacted in 1933 (Laws 1933, ch. 320). It contained forty sections, which became sections 79-3201 to 79-3240 of the 1933 Supplement to our Revised Statutes of 1923. By its terms it applied to incomes for the calendar year 1933 and subsequently. By section 21 of the act the taxpayer was required to file his return on or before the fifteenth day of the fourth month following the close of the taxable year, unless the tax commission, under its rules and regulations, should grant a reasonable extension of the time, and section 30 of the act (R. S. 1933 Supp. 79-3230) read: “(a) The amount of income taxes imposed by this act shall be assessed within three years after the return was filed, and no proceedings in court for the collection of such taxes shall be begun after the expiration of such period. (b) In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun at any time within three years from the time of filing or failure to file said return, (c) No refund or credit shall be allowed by the tax commission after three years from the date of payment of the tax as provided in this act unless before the expiration of such period a claim therefor is filed by the taxpayer, (d) In case a taxpayer has made claim for a refund, he shall have the right to commence a suit for the recovery of the same at the expiration of six months after the filing of his claim for refund, or within sixty days after notice has been mailed to him, as herein provided, that his claim for refund has been disallowed by the commission.” In 1935 the legislature passed an act (Laws 1935, ch. 312) entitled: “An Act relating to income taxes, amending sections 79-3205, 79-3206, 79-3207, 79-3209, 79-3210, 79-3212, 79-3213, 79-3215, 79-3216, 79-3220, 79-3230 and 79-3234 of the Revised Statutes Supplement of 1933, and repealing said original sections.” Section 1 of the act reads: “That the provisions of this act shall apply only to taxable years beginning after December 31, 1933.” Sections 2 to 13, inclusive, specifically amended the sections of the 1933 act referred to in the title. Section 12 specifically amended section 30 of the 1933 act by changing the word “three” in the second line to “four,” so that the first sentence read: “The amount of income taxes imposed by this act shall be assessed within four years after the return was filed, and no' proceedings in court for the collection of such' taxes shall be begun after the expiration of such period.” That was the only amendment made in that section; otherwise it was reenacted in the same wording as it appeared in the 1933 act. Sections 14 and 15 read: “Sec. 14. That original sections 79-3205, 79-3206, 79-3207, 79-3209, 79-3210, 79-3212, 79-3213, 79-3215, 79-3216, 79-3220, 79-3230 and 79-3234 of the Revised Statutes Supplement of 1933, be and the same are hereby repealed. “Sec. 15. This act shall take effect and be in force from and after its publication in the official state paper.” The tax commission contends that since the enactment of chapter 312, Laws 1935, which by section 14 specifically repealed section 30 of the 1933 act, there is no statute which fixes any limit of time for making an income-tax assessment for the year 1933. The trial court took this view. We are convinced it is erroneous. Section 1 of the 1935 act cannot be said to apply to all of the provisions of the act except section 14. The legislature has seen fit to say that the entire act shall apply only to the taxable years beginning after December 31, 1933. We see no reason why this declaration should not apply to section 14 as well as to any other sections of the act. Counsel speak of the time within which the tax commission must make an assessment as a statute of limitations. More accurately, it is a condition under which the state is authorized to collect the tax or to maintain an action therefor. Prior to 1933 we had no income-tax statute in this state. When the statute was enacted, as a condition for its collection, among other things, it was provided that the tax must be assessed within three years after the return was filed. In this respect it is analogous to our wrongful-death statute. (G. S. 1935, 60-3203. See Rodman v. Railway Co., 65 Kan. 645, syl. ¶ 2, 70 Pac. 642; Bowles v. Portelance, 145 Kan. 940, 67 P. 2d 419.) If it were not for section 1 of the 1935 act the amendment and repeal of section 30 of the 1933 act would be construed in harmony with our statute (G. S. 1935, 77-201, first clause) for the construction of statutes. In such a situation it might with reason be argued that the effect of this would be that after the enactment of the 1935 act the tax commission would have had four years to make the assessment from the time a return was made for the 1933 income. However, this question is not before us, for this view is precluded by the declaration of the legislature in section 1 of the 1935 act. In drafting our 1933 and subsequent income-tax statutes our legislature has taken the. federal income-tax act and its amendments as a pattern, and has followed them in their general purpose and in many of their specific provisions. The amendments of the federal act each contain, in the first section, a declaration similar to the first section of our 1935 act, but with an added clause which makes it clear that the former statute applied to the taxes of the earlier years. This added clause was not used by our legislature, obviously with the thought that the meaning would be the same whether the added clause was used or not. We think the effect is the same. The result is the 1935 act had no effect upon taxes upon incomes for the year 1933. Any tax assessed by the tax commission on incomes for the year 1933 had to be assessed within three years after the return was filed. Otherwise it could not be collected. Here the return was made April 14,1934. The tax sought to be collected was assessed November 20, 1937. We feel compelled to hold it cannot be collected. The judgment of the court below is reversed with directions to enter judgment for appellant.

The opinion of the court was delivered by Thiele, J.: Plaintiff brought an action to recover damages sustained by reason of an alleged defect in a bridge on a state highway. The trial court sustained a demurrer to his evidence, and he appeals. As far as it is now necessary to notice, plaintiff’s petition alleged that about 2 o’clock a. m. on July 18, 1937, he was driving his automobile south on highway 63 at a point where a highway bridge crossed Bartlett creek one-half mile northwest of Emmett, Kan.; that not exceeding thirty minutes prior to the time plaintiff reached the bridge it had collapsed and fallen into the creek; that plaintiff approaching the bridge was not aware of the fact the bridge had fallen until he had reached a point not exceeding five feet north of the bridge; that he was driving in a careful and prudent manner at a rate of speed not to exceed forty miles per hour and was catapulted through space and down to the floor of the collapsed bridge, damaging the automobile and permanently injuring the plaintiff. It was further alleged that the injuries and damages sustained by plaintiff were due to the negligence, carelessness and omissions of defendant in that (a) the bridge was worn, rusted and unsafe for ordinary public travel; (6) that a truss rod connecting the top truss rod and the lower steel work of the bridge was completely broken and dangling in the air; (c) that the end truss beam was rusted, bent and broken; (d) that bolts connecting the joint of the top truss beam and end truss beam or batter post were not in place and were gone; (e) holes for bolts were rusted out and broken; (/) truss rods were rusted loose, bent and unfit, and the structure was not anchored to the abutments; (g) the timber in the bridge was old, rotten and broken; (h) bolts and rivets were rusted, loose and weak; (i) there was a broken shoe resting on the northwest corner of the abutment, and (;) the tie block was old and broken. It was further alleged generally that the defendant had more than five days’ notice and specifically that the patrolman Kennedy had more than five days’ actual notice of the defective condition of the bridge. There was also appropriate allegation of notice of claim to the highway commission. We need not detail plaintiff’s claim of injury and damage, for that is not presently involved. Defendant’s answer denied-generally all allegations of the petition not admitted, and denied specifically existence of any defect in the bridge. Defendant admitted, among other things, the highway was a part of the state system of roads and that notice of plaintiff’s claim had been filed, and denied specifically the damage was caused by reason of a highway defect. It was alleged that the damages of which plaintiff complained were directly and proximately caused by the negligence of one Carl Eichman, who carelessly and negligently drove his automobile into the guardrails and batter post on the northwest corner of the bridge, causing the bridge to fall, and through no fault of defendant. At the trial the defendant demurred for the assigned reason the evidence failed to show the requisite five days’ notice and “wholly fails to show the giving of notice of any particular defect which produced a dangerous condition in said bridge,” and that the evidence failed to show “any defect or combination of defects that caused any bridge failure,” and that the evidence failed to show any proximate cause. The trial court’s ruling sustaining this demurrer is assigned as error. In considering whether the trial court erred, we shall review the evidence, bearing in mind two often stated rules. One is that in con sidering a demurrer, the court considers the evidence in the light most favorable to the party adducing it, all inferences being resolved in his favor (Fodor v. Interstate Transfer Lines, 149 Kan. 174, 86 P. 2d 574; Morrison v. Bandt, 149 Kan. 200, 86 Pac. 480); the other that the evidence of the party adducing it shall be considered as true, that unfavorable parts shall be disregarded, contradictions and differences between direct and cross-examination shall not be weighed, and if there is any evidence which sustains plaintiff’s case, the demurrer must be overruled (Parker v. City of Wichita, 150 Kan. 249, 250, 92 P. 2d 86, and cases cited). The real question is, Did plaintiff’s evidence make a prima facie case showing there was a defect in the highway and that the state highway commission had notice of it? It may be remarked that plaintiff, apparently anticipating the defense that the proximate cause of the plaintiff’s damage was that the bridge was caused to fall by reason of Eichman’s driving into the batter post and guardrails, offered the evidence of Eichman and a passenger in his car that the car had not struck the bridge in any manner; that the Eichman car was proceeding south at about twenty miles an hour and just as he drove on the bridge it collapsed and the car and its occupants fell with the bridge. Not a great while thereafter and while the Eichman car and its occupants were on the collapsed bridge, the plaintiff’s car came along, reached the fallen bridge, jumped over the Eichman car and stopped on the floor of the collapsed bridge. Plaintiff personally testified he was proceeding south in his car at about thirty miles an hour; he came under a nearby railroad underpass and as he made a swing in the road he saw the banisters of the bridge in the glare of his lights and noticed nothing wrong until he got to where his lights would show the floor of the bridge and there was a black hole; it was too late to stop, and he went off into space and his car landed half way down across the bridge. By one witness the plaintiff showed that three or four years before the bridge collapsed a complaint was made to one of the highway commissioners that the bridge was unsafe for heavy travel. An additional floor and perhaps some other work was done and use of the bridge continued. About a year before the accident witness’ truck had slid crosswise of the bridge and struck one of the side pieces of the bridge, but he had not told any employee of the highway commission about it. By another witness it was shown that four to six months prior to the accident he had noticed a broken rod with a turnbuckle on it that was broken, part of it hanging down under the bridge, and that he talked with Kennedy, the highway patrolman; that he and Kennedy looked at the bridge, he had hold of the rod; they talked about what the rod was for, what damage it would do to the bridge, what support it gave to the bridge and why it was not fixed, and Kennedy said he did not think it made any difference, they were going to build a new bridge. Another witness testified to seeing a broken truss rod hanging down, saw the middle post of the bridge, saw where something ha'd hit it and that it was twisted. Other witnesses, testified to substantially the same thing, and that the bridge was about forty-five to fifty years old. Still another witness stated that in 1934 or 1935 a truck ran into the bridge, and at that time it shifted about two inches to the north. The above witnesses and others testified to conditions observed by them after the bridge had fallen; that the batter post (sometimes called the end truss beam) which had been on the northwest corner of the bridge was rusted through in places; the stringers of the bridge at the north end were rotten; that there was a broken tie rod at the south end of the bridge. It was an old break, not broken off, but looked as though it had rusted in two; that there was a broken rod on the west side of the bridge; that one of the shoes (on which the bridge rested on the abutments) was completely broken in two and was an old break. An engineer testified the effect of a weakened batter post would cause “eccentricity in the column,” would increase the stress above what it would be if the post were' not damaged; he explained the purpose of the truss rods was to take up and even the stress of a load on the bridge, and if the particular truss rod was broken it would lessen the capacity. Certain pieces of the collapsed bridge were in court and referred to by this witness. He explained that a certain piece was called a rocker, the purpose of which was to transfer the load of the bridge down on the bearing plate or shoe, and the purpose of the latter was to spread the load on the stone or cement abutment. Certain photographs were introduced showing the bridge in question to have been constructed with iron or steel trusses, with a wooden floor, and that the wooden sill or piece resting on the north abutment was badly rotted. Under the rule above stated, we need not notice other testimony from which conclusions or inferences unfavorable to the plaintiff might be drawn. Under G. S. 1935, 68-419, any person who shall, without contributory negligence on his part, sustain damage by reason of a defective bridge on a state highway may recover damages from the state of Kansas, if any patrolman had notice of the defect five days prior to the time when the damage was sustained. The evidence here shows the plaintiff sustained his damage at the collapsed bridge and that he was without contributory negligence. To justify the ruling which it sought and obtained from the trial court, appellee in its brief selects portions of the testimony of various witnesses, the inferences from which are unfavorable to the appellant, and from the conclusions thus reached, it is argued there was no evidence of any defective condition of the bridge. Faced with the brutal fact the bridge fell, and the necessity of explaining, appellee asks us to ignore the testimony of the occupants of the Eichman car that their car did not strike the batter posts or some other part of the bridge thus causing it to fall, because, it is argued, it is unescapable from the photographs that the Eichman car did strike the northwest corner of the bridge. We see nothing about the photographs that leads to any such unescapable conclusion. They show much wreckage, but an examination of them alone leads as much to the conclusion that- some part of the east part of the bridge failed as that the northwest post was hit and broken. If we indulge in surmises, the pictures show the bridge in falling went to the east, therefore the east side gave way, for had the northwest post broken then the bridge would have fallen to the westward. The credibility to be given to the testimony of the occupants of the Eichman car, and the inferences to be drawn from the photographs were for the jury, and it may not be said the evidence discloses there was no defect in the bridge. On the contrary, the evidence shows that doubt of the safety of the bridge had existed in the minds of some people for some time. It is true that when complaint was made some years ago, some repairs were made on the bridge, and we assume for present purposes that the condition of the bridge was then ascertained and adequate repairs were made. Thereafter, however, if the testimony is to be credited, as indeed it must be at this time, a truck slid into the side of the bridge and damaged one of the parts of its framework, the bridge slipped endways on its abutments or foundation, one or more of its truss rods were broken or loosened and hung down. With the bridge in this condition, attention of the patrolman was directed to the broken rod and its effect was discussed with him. He stated he did not think it made any difference, they were going to build a new bridge. A good many inferences could be drawn from this testimony, but we shall not attempt any statement. Was it necessary that some person tell the highway commission or one of its employees specifically what was wrong with the bridge? We think not. The complaint having been made of the defect, even though it might have been minor instead of major, was sufficient that proper inspection of the bridge be made. The complaint was within four to six months of the date the bridge fell. An inspection would have shown not only the broken truss rod, but also the damaged middle post of the bridge, the broken shoe, the rotten timber resting on the abutment, the badly rusted batter post, and possibly that the bridge had slipped on its foundation. Appellee directs our attention to Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449, as being quite in point. That case deals principally with notice. Although there are quotations therein as to particularity of notice of defect, we do not believe they are decisive here. In the case before us, there was specific notice of a defect, which was apparently ignored. It is true the highway commission is not an insurer of the safety of travelers on its highways, but it may not ignore specific complaint of a defect, nor •the existence of defects which would be disclosed if inspection were made following complaint of specific defects, and thus escape liability. The theory of the statutes creating the commission and defining its powers, duties and liability includes the duty of maintenance and contemplates the doing of what is necessary in the way of inspection to determine what maintenance is necessary. The evidence is the highway patrolman thought the broken truss rod made no difference and the inference from the remainder of his statement is, Why do anything about the present bridge when a new one was to be erected? and that nothing was done. We shall not devote much time to the question of what particular defect in the bridge caused its fall. We do not think the plaintiff had to prove beyond a doubt that a particular piece gave way first. Some of the' evidence tends to show the bridge was like the “one-hoss shay” and when any part failed the whole would fall. The plaintiff’s evidence tended to show a series of defects which, coupled together, caused its fall, and in that view it is not very material which particular element failed first. We are of opinion the trial court erred in sustaining the defendant’s demurrer. Its ruling is reversed and the cause remanded.

The opinion of the court was delivered by Thiele, J.: This is an appeal from .a ruling sustaining a demurrer to evidence. On May 13, 1938, Louis Hammond filed in the probate court a claim against the estate of his deceased father for sixty months’ labor at $50 per month, from November, 1924, to. November, 1929, amounting to $3,000, and for moneys advanced on February 11, 1931, amounting to $199.11, with interest on the total. Credits were noted consisting of $175 paid in September, 1925, a yearling heifer sold August 7, 1935, and check for $12.41 on January 10, 1934. A demurrer was sustained to claimant’s evidence and he appealed to the district court. In the district court the claimant filed a bill of particulars, setting forth an oral contract of employment with his father on November 5, 1924, to labor on the father’s farm at an agreed wage of $50 per month; that the employment continued for sixty months until the father had a public sale and moved to Texas; that the father was without funds to pay claimant, and it was then agreed between the father and claimant that claimant should be paid out of the father’s estate upon his decease. Credits were set forth, as in the original claim, and recovery of the balance was asked. The executor of the father's estate filed an answer consisting of a' general denial and of an allegation that if claimant had ever been employed as alleged he had been paid in full. - At the conclusion of claimant’s evidence in support of his demand, the executor interposed á demurrer on the principal ground the claim was barred by the statute of limitations. This demurrer was sustained and the claimant appeals to this court. Appellant has failed to include in his abstract any specification of error, but in his brief he contends that the defendant waived the bar of the statute of limitations by failure to plead it, and if he had pleaded it, it would not avail, as the statute did not begin to run until the death of the father, and the claim was filed within one year from the date of death. It will be observed that the claim as filed in the probate court was based on a hiring under oral contract which began in November, 1924, and was completed in November, 1929, and would have been barred by the statute of' limitations in November, 1932, unless by reason of the claimed credits, and that by the bill of particulars a second contract is introduced, that is, that claimant was not to be paid until after his father’s death. We shall assume that claimant süstained the burden of proving the original contract. Appellant contends that by not pleading the bar of the statute of limitations the executor waived it, and it was unavailable to the executor in connection with the ruling on the demurrer. Appellant relies on Chellis v. Coble, 37 Kan. 558, 15 Pac. 505; Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; and Boston Safe Deposit Co. v. Boyd, 144 Kan. 429, 61 P. 2d 1339, and a quotation from 37 C. J. 1215. Each of the above decisions was in an action regularly filed by a plaintiff against a defendant and triable under the code of civil procedure. In the instant case a different procedure was applicable and was followed. The claim was filed in the probate court. Under the statutes with reference to the exhibition and establishment of claims against estates of decedents the claimant must file his claim under oath. The statute reads: “The affidavit in this section shall not be received as evidence of the demand, but the same shall be established by competent testimony before it is allowed or adjusted.’’ (G. S. 1935, 22-709, italics inserted.) The probate code prevents a default judgment on a claim, and there is no provision for any answer or other pleading by an executor or administrator. If, in the proof of the claim, it develops it is barred, it is the duty of the probate court to disallow the claim- — -the executor has no power to waive it. (See Hanson v. Towle, Adm’r, 19 Kan. 273, 282; Bristow v. First Trust Co., 140 Kan. 711, 721, 38 P. 2d 108.) And on appeal to the district court the same situation would obtain. The fact the answer of the executor to the bill of particulars filed in the district court did not plead the statute of limitations does not alter the situation. The executor was without power to waive it, whether by inadvertence or by intention. We shall first consider the oral contract of employment made in November, 1924, and terminated in November, 1929. Waiving any question whether the statute of limitations might have run on the amount due each month, it is quite clear that it'began to run on any amount due as of November, 1929. It is claimed it did not run by reason of payments made. The burden of proving those payments was on the claimant. The item of $175 paid in September, 1925, obviously cannot help. There was no proof that any check was given or other payment made on January 10,1934. With reference to the credit of $18 for the heifer allegedly sold to' claimant by his father on August 7, 1935, and assumedly not paid for by claimant, there is an entire lack of evidence as to whether it was a payment to apply on the loan of $199.11 made in February, 1931, the amount due for unpaid wages, or on any specific debt. But 'further than that, the testimony most favorable to claimant was that of his mother, who said he got the calf in 1935. She did not specify any month and there was no proof that it was within three years immediately preceding the filing of the claim on May 13, 1938. Although discrepancies in testimony are not to be considered in determining sufficiency of testimony, we observe that on cross-examination the mother stated the calf transaction was in 1928. What of the agreement allegedly made in November, 1929, that the amount then due was to be paid out of the father’s estate at his death? The testimony goes no further than that the father had told his wife, his daughter and a friend that he couldn’t pay his son and would have to pay him out of his estate. There is no testimony the father ever told his son anything about payment in the future or that there was an agreement between them as to payment out of the father’s estate at his death or any other time. Had the latter elements been proved, it is doubtful if the agreement would have been enforceable, not being in writing. The supposed agreement was made, not at the beginning of the employment, but at the termination thereof, and at a time when what was claimed to be due was an existing liability, debt or claim. Under such circumstances, in order to be enforceable, the acknowledgment of the existing liability, debt or claim must be in writing, signed by the party to be charged thereby. (G. S. 1935, 60-312; Stone v. Barr, 111 Kan. 775, 779, 208 Pac. 624.) The order of the trial court sustaining the demurrer was not erroneous, and it is affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action to recover for services rendered under an oral contract. Plaintiff prevailed, and defendant appeals. Three principal contentions are made by appellant: That the claim was barred by the statute of limitations, that the contract was unenforceable under the statute of frauds, and that a mistrial should have been declared on account of improper comment made by the plaintiff’s attorney in his argument to the jury. The record is quite lengthy, with many details recited. However, for purposes of this review the story may be briefly told. Ada Richard, the appellee, is the former wife of Grant R. Kilborn, the defendant. They were married in 1920. For about two years Kilbom had work of various sorts, but with little financial success, and became discouraged. Different plans to better their condition were discussed by the husband and wife, and he finally decided he would like to become a dentist, but had no means of financing such an education. Prior to her marriage the wife had been a stenographer and bookkeeper, and in September, 1922, he proposed to her that if she would get a job and pay their living expenses and his school expenses at a dental college he would fully repay her. She accepted the proposition. Defendant does not deny the agreement. The principal disagreement relates to the time of payment to which reference will later be made. The petition alleged that he agreed “as soon as he was able to borrow a sufficient sum of money to repay plaintiff and to finance the completion of the course himself, or at the death of his mother.” When the contract was made the Kilboms were living at Anthony, Kan., and Kilborn accompanied his wife to the office of an Anthony lawyer, where the plan was fully explained and where she secured a job. Kilborn entered a dental school in Kansas City. His wife worked for some time at Anthony and then went to Kansas City, where she found employment in a law office and where she continued to work, faithfully performing her part of the contract. She was evidently an efficient stenographer, earning at times $200 or more a month. The arrangement was continued throughout the dental course, and in June, 1927, Kilborn started to practice at Oxford, Kan. The plaintiff spent a few weeks at Oxford, but as Kilborn was not doing very well financially they agreed that she should return to Kansas City and resume her work in the law office, under the same arrangement. She continued her work there until the latter part of 1929, when as a result of domestic troubles, not made a part of this record, she secured a divorce. Five or six months thereafter the defendant remarried. Defendant did not make repayment. His mother died on December 24, 1936, leaving him property valued at about $8,000. In March, 1937, Mrs. Kilborn brought action on the contract in Sumner county. A demurrer to an amended petition was sustained and a second amended petition filed. Thereafter the plaintiff secured service of summons upon the defendant in Cowley. county and dismissed the action pending in Sumner county. The petition filed in Cowley county is substantially the same as the second amended petition just referred to, but differs in some particulars from the petitions previously filed. Plaintiff alleged in her petition that from September 15, 1922, to October 1, 1929, she earned and advanced to the defendant $10,066.03. An itemized account showing remittances covering that amount was set forth. The case was tried before a jury in January, 1939, and judgment rendered for the plaintiff for $6,213.51 with interest from December 24, 1936. Appellant’s specifications of error center around three propositions: 1. That the action was barred by the statute of limitations. Appellant contends that the time for payment was indefinite and that the obligation- would mature within a reasonable time after he started to practice in 1927, or upon demand for payment by plaintiff, or upon payment made by him, or at least at a time indicated by the plaintiff’s prior interpretation of the contract. The appellee interprets the agreement to be that the appellant would repay when he was able to do so or could borrow the money, but in any event upon the death of his mother. Under that interpretation the statute would not start to run until the obligation to pay definitely and certainly matured upon the mother’s death. When did the obligation to pay mature? There is comparatively little disagreement about what was said when the agreement was made. The divergence is in the interpretation of the language. Kilborn had tried to borrow money from his mother in order to go to dental college, but in this and other efforts of the sort he was unsuccessful. He told his wife, in substance, that he fully recognized that it was his business to provide the living, but that if she would go to work and make a living for both of them and pay his way through school he would see that she was repaid as soon as he was able to do it or when he could borrow the money, and he stressed the point that he could pay upon the death of his mother, whose property he knew would come to him. At the time the contract was made there were reasons to believe that the mother would not live very long, and Kilborn made it clear that he certainly could pay when she died. Appellant says that the plaintiff made various “demands” for payment during the years immediately after he began to practice and particularly in 1929, when she sent him two notes to sign. Plaintiff concedes that she made various efforts to secure payment prior to the death of the mother, but without success, and the record shows that within a short time after the mother’s death she again went from Kansas City to Oxford, insisted, upon payment, and not being successful, brought this action. Whether the earlier impor tunities of the plaintiff to secure payment constitute “demands” within the strict legal interpretation of the word is of no consequence if the appellee’s interpretation of the contract is correct. Appellant’s contention is predicated upon the idea that the time of payment was indefinite and that a “demand” would therefore start the running of the statute. The cases cited by appellant have no application if the certain and definite time when the defendant promised to pay was upon the death of the mother. Appellant further contends that he made two $50 payments by check in November and December, 1927, and that the acceptance of these payments started the statute. The appellee testified these checks were not in payment on the account, but were for repayment of a loan of $100 which she had been compelled to secure to help the defendant, and were so used. In reply to a special question submitted by the defendant, the jury answered that no payments on the account were made by the defendant. But assuming that such payments were made, they also would not start the statute if the promise to pay did not definitely mature until the death of the mother. This is not a case of a payment which revives a claim already barred. If the time for payment was indefinite, payments would have significance in determining when the statute would begin to run, but if no right of action arose until the death of the mother, a payment and its acceptance prior to that time would not affect the rights of the claimant. A further contention of appellant is that under an, interpretation theretofore placed upon the contract by the plaintiff herself the statute began to run long prior to the death of the mother. This contention is based largely upon the fact that the petition filed in Sumner county only alleged that the defendant promised tó pay as soon as he was able, and that he first became able to make payment when his mother died. Any divergence, however, in the allegations of the various petitions cannot be given controlling weight as against the allegations and the evidence in the case here presented. No citations of authority are required in support of the well-established principles that the statute of limitations does not begin to run against the party to a contract until a right of action on the contract accrues (37 C. J. 813, § 161); that the question of whether the accrual of a right of action depends upon a contingency must be determined by the intention of the parties to be gathered from their agreement (37 C. J. 820); that where a contract provides that performance of an agreement to pay shall take place upon the happening of a certain event the cause of action does not accrue until the happening of the event (37 C. J. 812-818, §169). The testimony before us has been carefully examined in the light of the rules of law just stated. While there is some disagreement as to the precise language used, we think it is entirely clear, not only from the testimony of the parties themselves but from testimony of other witnesses concerning statements made to them by Kilborn that he was certain he would receive considerable property from his mother upon her death and that whatever else he might or might not be able to do, he would certainly pay his wife when his mother died. He might make payments prior to that time if he found himself able to do so, but no uncertainty was left as to his obligation to pay upon his mother’s death. The jury made no special findings on the question, but it did fix the running of interest from December 24, 1936, the date of the mother’s death, which is in line, at least, with that interpretation of the contract. We conclude that the statute did not begin to run until the death of the mother. 2. The second contention is that the contract is unenforceable under the provision of the statute of frauds (G. S. 1935, 33-106), that an action cannot be brought upon a contract not in writing “that is not to be performed in the space of one year from the making thereof.” To this contention appellee makes two answers: first, that the contract could have been completed by the death of the mother within a year, and second, that complete performance by the plaintiff of her part of the contract takes the contract out of the operation of the statute. We do not find the first point entirely free from doubt, as it depends largely upon the interpretation of the contract. Both parties agree and both cite decisions to that effect, that if a contract is capable of entire performance within a year it is not within the statute even though the parties may contemplate the probability of much longer continuance, and the contract is in fact not performed within a year. The question is, Could the instant contract be performed within a year? Appellee says that the mother might have died within a year, thus concluding the period covered by the contract. Appellant disagrees, because the defendant had at least three more years of his dental course to complete. But if the mother had died within the year and the defendant had received her property, it would not then have been necessary for the plaintiff to work and earn a living during the completion of de fendant’s course. However, a determination on that point is made unnecessary by the fact that the plaintiff fully performed her part of the contract. The great weight of authority is that the statute of frauds is not applicable where there has been a full and complete performance by one of the contracting parties, and that the party who has fully performed may sue in a court of law and is not required to abandon the contract and sue in equity or upon a quantum meruit. (27 C. J. 350.) This is especially true in the case of a contract for services for a period longer than a year, which has been fully performed and nothing remains to be done by the defendant but to make payment according to the contract. (25 R. C. L. 464.) Decisions of this court are in line with this doctrine. A familiar application of the same principle is to be found in the case of oral contracts for transfer of interest in real estate. (Jay v. Ellis, 135 Kan. 272, 10 P. 2d 840; Craig v. Sanders, 133 Kan. 97, 298 Pac. 792; McDowal v. Miller, 1 Kan. App. 666, 42 Pac. 402; A., T. & S. F. Railroad v. English, 38 Kan. 110, 16 Pac. 82.) Application of the principle has been clearly extended to contracts not to be performed within a year. (Longhofer v. Herbel, 83 Kan. 278, 111 Pac. 483; Heery v. Reed, 80 Kan. 380, 384, 102 Pac. 846; Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825; and see Anderson v. Anderson, 75 Kan. 117, 126, 88 Pac. 743; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396.) Two Kansas cases have been noted which might possibly be used in support of the other view. The first is Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862. In that case recovery was denied under the contract, but was permitted under the theory of quantum meruit, and the court stated that the fact that a void contract was recited in the petition would not make it demurrable if the other facts stated therein constitute a cause of action, and quoted approvingly a statement in Deisher v. Stein, 34 Kan. 39, 7 Pac. 608, that— “All that a plaintiff needs to do in stating his cause of action is to state the facts of his case; and if such facts would entitle him to recover in any form of action, either at law or in equity, he will be entitled to recover under such statement.” (p. 41.) The other case is Cates v. Syndicate Oil Corp., 132 Kan. 272, 295 Pac. 649, which we think is plainly distinguishable from the present case. The plaintiff asked specific performance of a contract to convey an interest in real estate, and the court said that since compensation could be made in money the statutory exception relative to the application of the statute of frauds did not apply and therefore the contract was unenforceable. In the case at bar there is no other remedy but payment as prayed for in the petition. 3. The third principal contention of the appellant is that there was improper and prejudicial conduct by the plaintiff’s attorney in his argument to the jury and that a mistrial should have been declared and a new trial granted. It appears that counsel for the defendant, in the presence of plaintiff’s counsel, asked the court to submit no instructions on the subject of the statute of limitations, preferring to leave that issue for determination on the answer to a special question as to whether the defendant had made payments on the account. Accordingly, no instruction on the statute of limitations was submitted, the court simply stating “the defendant further claims in his answer that the purported cause of action in plaintiff’s petition is barred by the statute of limitations and is also barred by the statute of frauds.” There was no further statement concerning either statute or their significance as applied to the facts in the case. This question was submitted, and answered as follows: “Q. Do you find that the defendant, Grant R. Kilborn, ever made any payments to the plaintiff, Ada Richard, upon her claim? A. No.” In his argument counsel for the plaintiff commented on the special question, saying in substance that the defendant desired to have it answered in the affirmative and that it would then be contended that the plaintiff could not recover anything. Objection was made to the comment and the court admonished counsel that it was improper. Motion to declare a mistrial was refused. Upon the hearing of motion for a new trial two of the jurors, including the foreman, were examined and gave testimony substantially to the same effect. They testified that when the jury started to consider the case the first thing done was to vote upon the question of whether anything at all was due to the plaintiff. Upon that the first ballot was unanimous in the affirmative. The next question balloted upon was whether they thought anything had been paid on the contract, and upon that the first vote stood either nine to three or ten to two; that after some discussion all voted that no payment had been made. The record is not clear as to just what was said about the statute of limitations or its significance in the case. We agree with_ the trial court that the comment of counsel was improper, and it is not here condoned. The court had instructed the jury that the de fendant was claiming the defense of the statute of limitations, and counsel was entitled to make any proper argument with reference to the statute and its application to the facts of the case, but the comment which he made went beyond the proprieties, especially in view of the fact that he apparently offered no objection when the court agreed, upon request of the defendant, to give no special instruction concerning the statute. The trial court, however, stated that it did not regard the improper comment sufficiently prejudicial to require a new trial. In that we also agree. Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must appear that such misconduct prejudiced the rights of the defeated party. (Murphy v. Edgar Zinc Co., 128 Kan. 524, 278 Pac. 764.) This is in harmony with the general rule, many times stated by this court, that trial errors will be disregarded unless it affirmatively appears that they have prejudicially affected the substantial rights of the complaining party and where it appears upon the whole record that substantial justice has been done, and in harmony with the provisions of the statute to that effect (G. S. 1935, 60-3317). Our conclusion that the improper remarks of counsel in the instant case did not prejudicially affect the substantial rights of the defendant is based largely upon the view that it would have made no difference in the ultimate result even if the jury had answered that the two $50 payments were made as claimed by the defendant. The matter of credit on account is not important, since the jury only allowed the plaintiff something over half the amount asked for. Moreover, it is apparent that the real significance attached by the appellant to the question of payments had to do with the statute of limitations. For reasons heretofore stated the payments, if made, would not have started the running of the statute. The judgment is affirmed.

The opinion of the court was delivered by Harvey, J.: This was an action for the specific performance of a contract for the sale of a hotel property in Independence. Upon plaintiff’s application, and after a hearing, the court appointed a receiver for the property pending the action. Also, the court overruled defendant’s demurrer to plaintiff’s amended petition. Defendant has appealed from the order appointing the receiver, and also from the order overruling its demurrer. The order appointing the receiver was made January 25, 1939. The notice of appeal was filed May 4, 1939. This was more than two months after the order, and the appeal is too late. (G. S. 1937 Supp. 60-3309.) Appellant cites G. S. 1937 Supp. 60-3314a, which relates to appeals after final judgment. There has been no trial on the merits and no. final judgment in this case, hence this provision is not available to appellant. We turn now to the ruling of the court on the demurrer. The amended petition was in four counts. Briefly stated, the first count alleged that on and prior to August 20,1930, plaintiff and her sister, Hattie F. Conger, were the owners of two described lots in the city of Independence, together with the building and improvements thereon, known as the Carl-Leon Hotel; that plaintiff owned an undivided two-thirds interest and her sister the remaining one-third interest in that property; that on August 20, 1930, plaintiff and her sister, as parties of the first part, entered into a written contract with G. L. Holvey, as party of the second part, whereby the parties of the first part agreed to sell to the party of the second part, and he agreed to purchase from them, the real property described, for the sum of $40,000. A separate paragraph specifically provided how this sum should be paid — $2,050 cash on the execution of the contract, 139 monthly installments of $350, and the 140th of $235, to be paid between the first and tenth of each month, the first installment to be paid September 1, 1930, and the payment of $3,000 on August 20,1935, making the total amount payable, including interest on deferred payments, the sum of $53,935. The second party also agreed to pay all taxes and assessments upon the property when the same were due and payable and to keep the property insured in a sum not less than $22,000. The time for the performance of these payments was specifically made the essence of the contract. It further provided that the party of the second part proposed to organize a corporation under the laws of the state of Kansas for the purpose of engaging in the hotel business, and upon the organization of the company to turn over the contract to it under the terms and conditions contained therein. It further provided that upon the full performance by the party of the second part, or its assignee, of the terms of the contract the parties of the first part would make and deliver to the party of the second part, or the hotel company, a good and sufficient warranty deed in fee simple conveying full title to the property to party of the second part, or the hotel company. Further provisions of the contract need not be specially noted. It was further alleged that soon thereafter Holvey did cause to be organized the Independence Hotels Company, which took over the contract on behalf of the party of the second part, went in possession of the property, and assumed the obligations of the party of the second part thereunder; that the hotel company made the installment payments, except the installment due and payable between the first and tenth days of November, 1938, which payment had not been made; that the plaintiff paid the taxes levied and assessed on, the property for the years 1931 and 1932 and paid the taxes upon one of the lots for the year 1933, but not upon the other. It was alleged that G. L. Holvey, until the defendant assumed the contract, on or shortly after January 28, 1931, and the defendant after it assumed the contract, had made to plaintiff ninety-eight of the payments, commencing with September, 1930, and concluding with September, 1938, at the rate of $233.33 each month, aggregating $22,866.34; that there remained forty-two payments to be made, of which her share aggregated $9,880.32. It was alleged that defendant neglected, refused and omitted to pay the November, 1938, installment, and that the same was in default; that plaintiff had failed to pay the taxes on one of the lots for the years 1933 to 1937, inclusive, and upon the other lot for the years 1934 to 1937, inclusive, which taxes, with interest and penalties, amounted to $7,504.27. It was further alleged that the defendant had failed to keep plaintiff informed as to whether the insurance had been kept in force, which was the contract. It was alleged defendant was insolvent, and other facts were alleged tending to show that a receiver should be appointed. It was further alleged that plaintiff had kept and performed all of the provisions of the contract on her part and was entitled to have it performed by defendant, and she offered to execute, deliver and tender a good and sufficient warranty deed, as the court might direct, fully to cany out the contract on her part. Briefly, the second and third causes of action grew out of the $3,000 payment, which by the terms of the contract was to be made August 20, 1935. Plaintiff’s share of that was $2,000. Defendant paid $1,100 and gave its note for the other $900. Facts respecting that are alleged in the second cause of action, and the suit was for $54 interest on the $900 note from February 1, 1937, to February 1, 1938. The third cause of action was for the interest on the same note for the next year. The fourth cause of action stated more specifically the allegations for the appointment of a receiver. The general prayer was that plaintiff have judgment against de fendant for the specific performance of the contract for the sale of -the property, that she have judgment on the several causes of action, that specific items of relief, not necessary now to be noticed, be adjudged, and that plaintiff have such other and further relief as may be just and equitable. Appellant first contends that appellee cannot maintain this action for the reason that her amended petition, and the amendments thereto, disclose that she has not complied with our statute relating to mortgage registration fee (G. S. 1935, 79-3101 et seq.). This was raised by the demurrer and also by a motion to dismiss. There was some controversy as to whether the instrument was one that required the payment of the registration fee. Either conceding that the instrument was one on which such a fee should be paid, or to avoid any further question about it, plaintiff had the register of deeds compute the amount of the fee and paid the sum so computed, $94.75, and was issued a receipt by that officer showing the registration fee paid. By leave of court the amended petition was amended or supplemented by an allegation of such payment. Thereupon the court overruled the motion to dismiss, and also the demurrer to the amended petition, as so amended. Appellant now argues that the payment was not made soon enough and that the amount paid was insufficient to pay the proper registration fee. G. S. 1935, 79-3102 provides for the payment of this fee before the mortgage is recorded', and G. S. 1935, 79-3107 contains a similar provision, “and such mortgage shall not be received in evidence.” Hence, the penalties for the mortgage holder are that the instrument cannot be recorded nor received in evidence unless the fee is paid. The record before us does, not show when, if at all, the instrument was filed for record. Since the payment was made while the issues were being made up, we think the payment was in time. The amount of the registration fee paid is a matter which concerns the taxing authorities. A similar question arose in Coryell v. Hardy, 144 Kan. 194, 58 P. 2d 1151, where a contract quite similar in its broad aspects to the one before us was being considered, and where the registration fee was paid after the action had been filed but before the trial on the merits. The court said: "The statute defines the term ‘mortgage’ to include executory contracts for the sale of real estate, and provides such a ‘mortgage’ shall not be received in evidence unless the tax is paid. Prior to the time the contract was offered, tax was paid. That it was not paid immediately after the contract was made makes no difference; that the amount of tax that was paid may not have been fully sufficient cannot avail appellant — that is the concern of the tax-collecting authorities.” (p. 202.) Appellant argues the demurrer to the amended petition should have been sustained for the reason that the petition was drawn on confusing theories. Counsel for appellant expresses confusion as to whether plaintiff seeks to forfeit the contract, or to have it specifically performed, or to foreclose it as a mortgage, or to have the property partitioned. We think it clear the petition states a cause of action for the specific performance of the contract, with such incidental or varied relief as a court of equity might properly decree. The suggestion about plaintiff’s seeking a partition of the property apparently grows out of these facts: Plaintiff lives at Minneapolis, Minn. She owned an undivided two-thirds interest in- the property at the time and before the contract for its sale was made. Her sister, Hattie F. Conger, lives at Hollywood, Cal., and owned an undivided one-third interest in the property. As we understand the record, monthly payments always were made two-thirds to plaintiff and one-third to her sister. The original petition alleged that about January 31, 1936, defendant purchased from Hattie F. Conger her undivided one-third interest in the property and became the owner thereof. Since that time apparently the parties have treated the contract with plaintiff as one to purchase her two-thirds interest in the property, and the .payments made to her and what she seeks to recover in this action is two-thirds of the sum of the respective payments provided for in the contract. Appellant argues that it now has become a tenant in common with plaintiffs, that a fiduciary relation exists between tenants in common, hence that plaintiff could not maintain specific performance or foreclose the contract as a mortgage. The only authority cited in support of this view is 62 C. J. 466, to the effect that one cotenant cannot buy up an outstanding mortgage and foreclose it as against his cotenant. Obviously the citation is not in point. We see no reason a court of equity should not now treat the relation of the parties the same as if defendant had purchased the share or interest of Hattie F. Conger in the property and then had made a contract with plaintiff to purchase her interest for two-thirds of the sum provided for in the contract made. We find no reason to disturb the rulings and judgment of the trial court, and they are affirmed.

The opinion of the court was delivered by Dawson, C. J.: This appeal presents the question whether a railway company may deduct from its net annual income so much thereof as it earned carrying the United States mails in computing its annual income tax. For the years 1935 and 1936 the railway deducted from its Kansas allocable income so much of its net earnings as it received from the federal government for hauling the mails and paid an income tax only on the remainder. The state tax commission rejected that basis of computation and assessed additional income taxes against the company in the sums of $3,039.81 for 1935 and $4,626.33 for 1936. An amicable lawsuit to settle the matter was arranged between the parties, and the pertinent facts were stipulated, including the following: “It is stipulated that the M.-K.-T. R. R. is a corporation organized under the laws of Missouri; that it is an interstate common carrier of freight and passengers for hire, and carries the United States mail; that its lines extend from St. Louis and Kansas City, Mo., and Junction City, Kan., on the north, through intermediate stations in the states of Missouri, Kansas, and Oklahoma, to Oklahoma City, Okla., and Galveston and San Antonio, Tex., on the south; that the tax assessed was based upon the application of the Kansas rate to the additional amount of income which the railroad received for transporting mail over and above that which the railroad returned in its income tax return, which income tax return did not include the revenue received from the United States government for the transportation of mail.” The manager of plaintiff’s mail, baggage and express department-testified that there was n.o contract or agreement between the federal government and the railway company relating to the carrying of the mails; the Postmaster General designated the trains on which the mails should be carried, also the routes; and the Interstate Commerce Commission fixed defendant’s compensation for this service. A voluminous mass of statutory provisions and postal regulations, summarized in ten printed pages of the abstract, was submitted in evidence. These showed how completely the railway company is now subjected to federal regulation and control in respect of this service, from all of which it is argued for the railway company that it is an employee of the United States government so far as its service of carrying the mails is concerned, and that its compensation as such federal employee is exempt from the Kansas income tax under the terms of our local statute, which, so far as here pertinent, reads: “(b) Gross income does not include the following items which shall be exempt from taxation under this act: ... (9) salaries, wages or compensation paid by the United States to its officials or employees, including members of the army, navy and marine corps.” (G. S. 1935, 79-3205.) The trial court held that the railway company must pay the additional amounts demanded by the tax commission, and the case is brought here for review. It cannot be denied that at one time and another the courts have held that in respect to the business of carrying the United States mails, a railroad (or a steamship company) is an agency of the federal government and performing a governmental function. (Bankers’ Mutual C. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 117 Fed. 435; United States v. Hamburg-Amerikan., etc., Gesellschapt, 212 Fed. 40, 43; Atchison, T. & S. F. Ry. v. United States, 225 U. S. 640; Boston Ins. Co. v. C., R. I. & P. R’y Co., 118 Ia. 423, 92 N. W. 88, 59 L. R. A. 796.) When the foregoing decisions were rendered, railroads (other than land-grant railroads) carried the mails pursuant to contracts awarded by the federal postal authorities. Now this service is required of railroads by statute, so it is argued that in respect to carrying the mails a railroad company is more clearly than heretofore an agency of the government. This point may be conceded with whatever legal conclusions necessarily follow, but it must also be kept in mind that both federal and state courts in recent years have come to view claims to exemption from the common burdens of taxation much more strictly than formerly. (Clinton v. State Tax Commission, 146 Kan. 407, 71 P. 2d 857, and federal and state cases cited therein; Capitol B. & L. Ass’n v. Commission of Labor & Industry, 148 Kan. 446, 83 P. 2d 106; O’Malley v. Woodrough, 59 S. Ct. 838, decided May 22, 1939.) See, also, “Important Shifts in Constitutional Doctrines” in the American Bar Journal for August, 1939, p. 629. A question similar to the one of present concern came before the supreme court of North Carolina in R. R. v. Maxwell, Comr. of Revenue, 207 N. C. 746, 178 S. E. 592. There the taxing authority exacted a tax on the entire net income of the Atlantic Coast Line Railroad Company allocable to North Carolina, rejecting the railway company’s contention that so much of its income as was derived from carrying the United States mails was exempt from the state income tax. The railway company paid accordingly and sued for its recovery. The trial court gave judgment for defendant and the supreme court affirmed the judgment, saying— “Nor can. the contention of the plaintiff that, in transporting the mails under the direction of the Postmaster General during the year 1931, the plaintiff was a public agent of the United States government, and as such was performing a governmental function, and that for this reason the compensation which the plaintiff received from the United States government for transporting the mail was not subject to taxation as income by the state of North Carolina, be sustained.” (p. 750.) We note that in the case just mentioned the court also ruled against the railway company on the ground that under the North Carolina statute only individuals, and not corporations, could claim exemption from the state income tax for compensation received for services performed on behalf of the United States government. Be cause of that fact, and also because, as counsel for appellant now contend, the North Carolina decision cites no precedents, we will not emphasize its significance in the case at bar. However, a diligent search on our own part has revealed no other authorities on either side of this precise question. Be that as it may, we conclude that the fact that the railway company is an involuntary agency of the federal government so far as its service of carrying the mail is concerned, does not constitute it an employee of the United States so as to make the compensation paid it by the government for that service exempt from our local income tax of 1933 and amendments (G. S. 79-3201 et seq.; G. S. 1937 Supp. 79-3206 et seq.). The judgment is affirmed.

The opinion of the court was delivered by Thiele, J.: This is an appeal from an award under the workmen’s compensation act. The examiner found that the claimant was suffering from a temporary total disability arising out of his employment, and an award in his favor was made. This award was affirmed by the commission, and, on appeal, was affirmed by the district court. The appeal to this court followed. The only error assigned is that there is not sufficient evidence as a matter of law to support the award and judgment. In March, 1938, claimant was employed by respondent as a shift engineer and worked until October 15,1938. Claimant testified that he was in good physical condition until September 23,1938, and that he had never been subject to any heart trouble. There was no evidence introduced to contradict, the testimony as to his previous good health. On September 23, 1938, claimant and one Barackmann, another engineer, were endeavoring to start a large steam-driven ice machine. The undisputed testimony is they tried for some fifteen or twenty minutes and were unable to start the machine. There was a lever on the machine two and one-half to three feet long which was pulled up and down to “rock” the valves and start the machine. The claimant Ear hart testified he was pulling on this lever; that it was necessary to a give a short, quick jerk to operate it; that he felt a sudden pain in his left side over the heart, like a knife. He got dizzy for a little while and stepped back, He continued to work out his shift, which ended at four o’clock in the afternoon. He went home, but continued to feel ill; about six o’clock he walked some two blocks to a drugstore. While in the drugstore he became dizzy, fainted, and was taken home by one of the employees. The family physician was called, but did not come to see claimant that night. Claimant went to work the next day, but his wife and son got in touch with a physician who sent claimant some medicine and instructed him to go home and go to bed. The son brought the medicine to the plant, but claimant did not go home. He was examined by the physician that night. The physician diagnosed the trouble as an organic heart condition — something permanently wrong with the heart — prescribed certain medicines and advised claimant to lie on his back as much as possible with his feet up. He also suggested to claimant that he not go to work for a while. However, claimant continued to work until October 15,1938. Claimant’s superior at the ice plant, a witness on behalf of appellant, testified that he was standing close to the claimant and observed him rocking the valves; they were having trouble in getting the machine started; they were more than fifteen minutes getting it started. In answer to the question if he saw claimant “exert any effort to speak of in rocking those valves,” the witness stated: “Well, yes, he did, they were hard to move at that time, and he was trying to move them, but they failed to move right then.” A part of the testimony of claimant’s family physician was as follows: “Q. Now, Doctor, assuming that prior to the twenty-third day of September, 1938, the claimant, Mr. Earhart, was in apparent good physical condition, and that he had not complained of any pains in his heart, or ailments, and that on the twenty-third day of September, 1938, he was working for the respondent, the Wible Ice and Cold Storage Company, and in the act of starting an ice machine, which required him to lift up on a lever which required considerable lifting, and that while doing so he felt a sharp pain strike in and about the heart, and that he became dizzy and since that time has been suffering with dizzy spells and weakness, and had the heart which you found to exist at your examination on the twenty-fourth day of September, 1938, I will get you to state if, in your opinion, the lifting and the jerking on the handle in starting that ice machine as testified to, could produce the condition you found in Mr. John Earhart, the claimant? A. I think it could. “Q. I will ask you to state if, in your opinion, assuming those facts to be true, if, in your opinion, that would produce the condition you found in Mr. Earhart? A. It would. “Q. Doctor, the condition, an organic heart condition, as you found, I will ask you to state whether or not it takes very much of a strain to produce a condition like that. A. It does not in many cases take very much strain if a person is in a certain position, especially a lifting position.” A physician called on the part of appellant testified that a heart lesion could be made worse by a strain, and that the jerking and straining by claimant in an effort to start the machine could have aggravated a latent heart disability. A second physician, called on the part of the appellant, testified in part as follows: “A. I said the enlargement may be due to disease of the heart valves, the enlargement. The enlargement would show, but I cannot tell from the electrocardiogram whether this enlargement is due to, maybe a rupture of the heart valves or disease of the kidneys, or a disease of blood vessels, I cannot tell. I can only say this heart must be larger on the left side. “Q. And that could be caused by a valvular heart lesion? A. Yes, it could be caused by a valvular heart lesion. “Q. A valvular heart lesion can be caused by a rupture, or is a rupture of a vessel or of a valve? A. Yes. They have been described, ruptures of the valves by accident. “Q. An accident or sudden strain could cause a rupture of the heart, couldn’t it, of the valve? A. It may. “Q. And the rupture of the valve itself could cause an enlargement of the heart? A. It could.” A neutral physician testified that claimant’s physical condition was such that he could not engage in manual labor — “I would say almost totally disqualified to do any manual labor in his present condition.” In Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 113, the factual situation was similar to the case at bar. In that case it was said: “In our judgment, the evidence before the commissioner, and later before the district court, warranted the conclusion that even though claimant, unknown to himself, had an affliction of his heart or circulatory system that eventually might cause his death or render him incapable of manual labor, the hard pull on the wrench aggravated his condition, and caused a speeding up of a result that might or might not have occurred in the future. Certainly as to the claimant, it cannot be said he intended by the pull on the wrench to cause a thrombosis that might cause his death or render him an invalid. When claimant braced his feet and exerted a strong pul] on the wrench, so far as he or anyone else was concerned, what then happened to him was undesigned, sudden, unexpected and of an afflictive character — or, in shorter form, it was an accident. It arose out of and in the course of his employment, and the district court properly held he was entitled to compensation.” (p. 659.) It was the duty of the trial court to weigh the evidence. This court can do no more than pass on the question of law as to whether there is testimony to sustain the findings. We think the judgment was sustained by substantial, competent testimony, and under the rule often announced (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Hill v. Etchen Motor Co., supra), the judgment of the trial court must be affirmed. It is so ordered.

The opinion of the court was delivered by Harvey, J.: This is an original proceeding in mandamus. The motion for the writ alleges that the Kansas City Life Insurance Company, hereinafter called the plaintiff, is a corporation organized under the laws of Missouri, is engaged in the life insurance business, and is authorized to do business in Kansas; that prior to February 16, 1939, plaintiff became temporarily seized and possessed in satisfaction of debt of certain described land in Jackson county, Kansas, and that in accordance with the laws of Missouri plaintiff made and executed its note and deed of trust to the superintendent of insurance of that state, a copy of which was attached to the petition and is set forth in the margin; that on March 4,1939, plaintiff presented the deed of trust to the defendant, as register of deeds of Jackson county, for record, and tendered therewith the regular recording fee; that defendant refused to record the deed of trust unless there was paid thereon a registration fee for each $100, or major fraction thereof, mentioned in the note, the sum of 25 cents, assigning as his reason for so refusing to record the deed of trust that it is a mortgage, as defined in G. S. 1935, 79-3101, 79-3102 and 79-3103, and therefore subject to the registration fee provided for in the statute. Plaintiff further alleged that it was organized and is doing business under article 2, chapter 37 of the Revised Statutes of Missouri for 1929, and that the laws of the state of Missouri governing and con trolling such life insurance company in relation to their* deposits to the superintendent of insurance of the state are as follows: “All life insurance companies organized under the provisions of article 2, chapter 37, Revised Statutes of Missouri, 1929, shall deposit with the superintendent of the insurance department, in addition to other amounts required by law to be deposited by life insurance companies before such companies are permitted to engage in the business of issuing policies of life insurance and annuity bonds, cash or securities of the kind and type in which life insurance companies are required to invest their funds under section 5921, R. S. of Mo. 1929, as same now is or as same may be hereafter amended, in an amount sufficient to equal the net value on all policies or annuity bonds hereafter issued by such companies, the amount thereof to be determined by an evaluation made in accord with the provisions of this chapter.” (Laws of Missouri, Extra Session, 1933-1934, § 5704.) “After making the deposits mentioned in section 5704, the company shall issue its policies of insurance or annuity bonds, having upon the face a certificate in the following words: ‘This policy is registered and the net reserves secured by a pledge of bonds or deeds of trust on real estate deposited with this department’; such certificate shall be signed by the superintendent of the insurance department or his authorized deputy and sealed with the seal of his office; and such policies and annuity bonds shall be known as registered policies and annuity bonds. The superintendent shall prepare and keep a permanent register thereof so that he and his successors will be enabled to compute the net value of such policies or annuity bonds at any time. The provisions of this section pertaining to the registration of policies shall not apply to policies issued on the industrial or prudential plans except when such policies exceed five hundred ($500) dollars in amount.” • (Laws of Missouri, Extra Session, 1933-1934, § 5705.) “On the first days of January and July of each year, or within sixty days thereafter, the superintendent shall cause the registered policies and annuity bonds of each company outstanding and in force to be carefully valued, and whenever the total of the actual net value of such policies and annuity bonds exceeds the market value of the securities on deposit, the company issuing such policies or annuity bonds shall immediately deposit sufficient securities of the same kind and type provided for in section 5921 to equal the net value of such policies and annuity bonds so that the market value of the securities deposited shall always be equal to the actual net value of the registered policies and annuity bonds issued by such company and still in force.” (Laws of Missouri, Extra Session, 1933-1934, § 5706.) “Should any company depositing under section 5704 become the owner of real estate for its own use and accommodations, or become temporarily seized and possessed of real estate, in satisfaction of debt, for which such real estate was pledged for security, such company may execute its own note for the value of such real estate, payable to the superintendent, as trustee, and secure the said notes or bonds by duly recorded deeds of trust of said real estate; which notes or bonds thus secured may be deposited with said superintendent as proper security, under and according to the' provisions of this article^ said value to be subject to the approval of the superintendent of the insurance department.” (Revised Statutes of Missouri, 1929, §5709.) “The securities deposited under the provisions of section 5704 shall be legally transferred to the superintendent of the insurance department, and so large an amount thereof as may be necessary to equal, at all times, the net value of the outstanding registered policies and annuity bonds, less such liens not exceeding such value as the company may hold against them, shall be held by him in trust for the purposes of this article, until the obligations of said companies, under said registered policies and annuity bonds shall, to the satisfaction of the said superintendent, be fully liquidated, canceled or annulled.” (Revised Statutes of Missouri, 1929, § 5713.) Plaintiff further alleged that there is no indebtedness secured by the deed of trust, and that it is not indebted to the superintendent of insurance of Missouri; that the sole purpose of the deed of trust and the recording thereof is to comply with the statutes of Missouri in the transfer of the title to the real estate described therein to the superintendent of insurance, to be held by him in trust in accordance with the statutes of that state; and it is alleged that the deed of trust is not a mortgage as defined by the statutes of Kansas and is not subject to the registration fee. The prayer is that defendant be commanded to record the deed of trust on the payment of the recording fee without charging the registration fee provided for the registration of mortgages. Defendant has filed a motion to quash. This is tantamount to a demurrer and raises the question whether the facts stated in the petition are sufficient to entitle plaintiff to the relief sought. Generally speaking, our statutes (G. S. 1935, 79-3101, 79-3102 and 79-3103) provide that when a mortgage of real property is recorded there shall be paid, in addition to the regular recording fees, a registration fee of 25 cents for each $100, or major fraction thereof, of the note or debt secured by the mortgage, and that upon such payment the mortgage and the .note to be secured shall not be taxable otherwise. The statute (G. S. 1935, 79-3101) defines certain words and phrases used therein. The one pertinent here reads: “The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property.” Therefore, the primary question is whether the deed of trust in question is an “instrument by which a lien is created or imposed upon real property.” We think a reading of the, deed of trust and the note makes it clear that the instrument created or imposed a lien upon the real property described therein. That is declared in the note and repeatedly stated in the deed of trust. We have printed these instruments and italicized certain phrases to make that clear. They need not be repeated here. Plaintiff argues that in reality there is no debt secured by this deed of trust, and therefore it is not a mortgage. The point is not well taken. A valid mortgage may be made to secure future advances as well as for an existing liability. (Union State Bank v. Chapman, 124 Kan. 315, 259 Pac. 681, 41 C. J. 462.) Also, a valid mortgage may be given to indemnify against a contingency which in fact may never happen. (Garden City Nat’l Bank v. Gann, 121 Kan. 159, 246 Pac. 971.) It need not be founded on a present debt. It may be given to secure the performance of obligations. (41 C. J. 459, 19 R. C. L. 295.) Under the statutes of Missouri above quoted, plaintiff is required to secure its policyholders to the extent stated in the statutes. This is done by depositing with the superintendent of insurance securities of certain classes. Mortgages on real property, or deeds of trust in the nature of such mortgages, may be used for that purpose. From the record it appears plaintiff previously had a deed of trust in the nature of a mortgage on the real property covered by the instruments here in question, which it foreclosed, and plaintiff acquired the title to the real property by a sheriff’s deed. The Missouri statutes then permitted plaintiff to execute a note, payable on demand, to the superintendent of insurance, as trustee, for the amount it had invested in the property and secured the note by a deed of trust, which is in the nature of a mortgage, and deposit those with the superintendent of insurance in lieu of the mortgage it previously held on the same land. This is to secure its liability to its policyholders. We see no reason for saying that it does not “create or impose” a valid lien on the property. Any purchaser of the property from plaintiff would be bound to see that the note secured by this deed of trust was paid. Any attachment or execution against plaintiff levied on this property would be subject to the deed of trust and the note secured thereby. We think any title examiner, passing on an abstract of title to the property, would be remiss in his duty if he did not advise his client that the deed of trust evidences a lien upon the property for the amount of the note secured thereby. Plaintiff points out that our statute (G. S. 1937 Supp., 40-404a) provides in substance that when a life insurance company that has.a mortgage on a piece of property, which mortgage had been deposited with the commissioner of insurance as security for its reserve, has to foreclose the mortgage, and becomes temporarily the owner of the land, it may convey the land to the commissioner of insurance, the title to be held as security for the reserve. It is argued that the Missouri transaction is the same, that in legal effect the title to the property is conveyed to the superintendent of insurance of Missouri, and that there should be no tax on the instrument. The difficulty with the argument is that the statutes of Missouri do not authorize the execution of the deed to the superintendent of insurance of Missouri in such a situation; neither does the deed of trust attempt to transfer title to the real property from plaintiff to the superintendent of insurance. In McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 Pac. 507, it was held: “Where a deed of trust is executed with the understanding betweeen the parties that the title is to be transferred forever from the grantor to the grantee and his heirs or grantees, such deed of trust is not a mortgage; but where the deed of trust is executed with the understanding between the parties that it is a mere security for a debt, and that when the debt is paid the title shall be again placed in the grantor, such deed of trust is a mere mortgage. ...” (Syl. il 2.) See, also, 41 C. J. 283. For the purpose of foreclosure our statute (G. S. 1935, 60-3107) treats this kind of a deed of trust as a mortgage, and many of the instruments sued upon in the foreclosure cases in this state are in the form of deeds of trust. The fact that the statutes of Kansas authorize a life insurance company, which becomes temporarily possessed with a title to real property by foreclosure action, to deed the property to the commissioner of insurance to be held as a part of its reserve, and the statutes of Missouri do not authorize such a deed to be made, does not convert the deed of trust authorized and executed under the Misspuri statute into a deed. It remains under the Missouri statute a deed of trust to secure a note for a specified amount, satisfaction of which note "may be enforced only by payment, substitution or foreclosure;” and the deed of trust provides, upon failure of plaintiff to pay'the amount of the note, or to deposit other securities in lieu thereof, “the said note shall be deemed to be due and payment thereof in default, and second party may take such action at law or in equity as may be appropriate and effective to enforce said note and to foreclose the lien therein created and to subject the title in fee simple of the above-described real estate and premises by sale or otherwise to the satisfaction of the same.” It is clear no title to the real property passes by the deed of trust alone. Such title does not pass until there is default in the payment of the note, or in substituting other security for it, and after appropriate legal procedure for the foreclosure and sale of the real property. Plaintiff points out that under the decision of the supreme court of Missouri (State, ex rel. Hyde, v. Falkenhainer, 309 Mo. 381, 274 S. W. 722) the superintendent of insurance of that state is the custodian of the securities deposited with him by life insurance companies to secure their liabilities on policies, but that he has no authority to maintain an action to foreclose mortgages so placed with him; that this must be done by a receiver appointed by the court. Similar holdings have been made with respect to similar securities deposited for the same purpose with the commissioner of insurance, as required by the laws of this state. (See Hobbs v. Occidental Life Ins. Co., 87 F. 2d 380; Meyers v. State Corporation Comm., 139 Kan. 890, 33 P. 2d 308.) We are not concerned so much here with what official has authority to maintain a foreclosure action; the real point is whether, if the condition arises that justifies it, an action can be maintained to foreclose this deed of trust as a mortgage. Unquestionably that can be done both under the authorities of Missouri and of Kansas. Lastly, plaintiff argues that this deed of trust should not be regarded as a mortgage because of our retaliatory statute (G. S. 1935, 40-253), which provides that if a foreign state imposes taxes on Kansas insurance companies authorized to do business in that state, that Kansas may impose like taxes, and that the state of Missouri has a similar statute (R. S. Mo. 1929, § 5935). We think the point is not important here. This is not a case dealing with the reciprocal tax features. That question can be determined when a case properly presenting it is before us. From what has been said it necessarily follows that the writ prayed for should be denied. It is so ordered. Exhibit A. “DEED OF TRUST (Italics inserted) “This indenture, made and entered into this the 16th day of February, a. d. 1939, by and between Kansas City Life Insurance Company, a corporation organized and existing under the provisions of article II, chapter 37, of the Revised Statutes of Missouri for 1929, with its principal office in Kansas City. Jackson county, Missouri, party of the first part (herein called first party) and the superintendent of the insurance department of the state of Missouri, and his successors in office, as trustee, party of the second part (herein called second party)— “Witnesseth: Whereas, First party has become, and now is, seized and possessed of the following described real estate and premises, to wit (Here follows description), which said real estate and premises it has acquired in satisfaction of debt for which the same was pledged to it as security by written instrument recorded in book 84 at page 7 of the land records of the county of Jackson, in the state of Kansas, identified on the books of the first party as Loan No. 6,007, and which is now free and clear of liens and encumbrances; and “Whereas, Prior to the acquisition of said real estate the note or other obligation evidencing such indebtedness to first party and secured by the instrument aforesaid had been on deposit with second party under the provisions of section 5,704, page 61, Laws of Missouri, extra session, 1933-1934, and section 5,921, page 64, Laws of Missouri, extra session, 1933-1934, as a part of the deposit of reserves required of said first party; and “Whereas, It is the present purpose and intention of first party to make said real estate and premises available for deposit as provided in section 5,709, Revised Statutes of Missouri, 1929, in lieu of the aforesaid note or obligation, to the extent of the value of the aforesaid real estate and premises, and, in furtherance of such purpose, has made, executed and delivered to second party its note, as follows,’ to wit: “Note “88,444.66 Kansas City, Mo., February 16, 1939. “On demand, the undersigned, Kansas City Life Insurance Company, a corporation organized and existing under the provisions of article II, chapter 37, of the Revised Statutes of Missouri, 1929, with its principal office in Kansas City, Jackson county, Missouri, for value received, promises to pay to the superintendent of the insurance department of the state of Missouri, and his successors in office, as trustee, the sum of eight thousand and four hundred forty-four and 66/100 dollars (8,444.66). “This note is described in, and is executed in connection with, a deed of trust of even date herewith, so- as to pledge, and to convey a first lien on, the unencumbered real estate in said deed of trust described, for the purpose of depositing this note and said deed of trust under the provisions of section 5,709, Revised Statutes of Missouri for 1929, and section 5,704 and section 5,921, respectively, Laws of Missouri, extra session, 1933-1934. The duties and obligations of this maker under these said statutes is the sole and only consideration for the execution and delivery of this note and said deed of trust. “Neither this note, nor any right, benefit or .claim based upon, or growing-out of it, is assignable, either directly or indirectly, except by operation of law, and satisfaction hereof may be enforced only by payment, substitution or foreclosure under the terms of the said deed of trust in connection with which it is executed. Kansas City Life Insurance Company, By Wood Arnold, Vice-President. “Attest: C. N. Sears, Secretary. (Seal.) “Now, Therefore, First party, for the purpose of secwing second party in the satisfaction of the aforesaid note, and in consideration of the sum of one dollar (81) to it paid, the receipt of which is hereby acknowledged, and in further consideration of the premises herein stated, does hereby pledge the aforesaid real estate and premises to second party, and does hereby give, grant and convey to second party a first lien thereon, upon the following express conditions and covenants, to wit: “1. The purpose hereof is to make the aforesaid note and this conveyance a reserve deposit of first party with second party under the provisions of section 5,709, Revised Statutes of Missouri for 1929, to the extent of the value of said real estate and premises, in the same manner and under the same conditions as reserve deposits are made and held under the provisions of section 5,704 and section 5,921, respectively, Laws of Missouri, extra session, 1933-1934. “2. First party shall remain in the sole and exclusive possession, management and control of said real estate with the right to lease, rent and contract for the use and occupation thereof for its own use and benefit, and to make leases, grant easements and rights of way, and to enter into contracts with the government of the United States, and of the state and county in which said real estate and premises are located, and agencies thereof, pertaining solely to the use and improvement thereof, the lien hereof being expressly .subordinated thereto. “3. First party shall pay all taxes levied against said property promptly when due, and discharge all liens and claims which might become superior to the lien hereby created, and fully protect the same from any lien, encumbrance or claim of any kind superior to the first lien herein created. “4. First party shall keep the buildings now, or hereafter erected on said premises, insured against loss from fire and tornado in such amount as the value of such buildings bears to the amount of the aforesaid obligation. “5. First party may enter into valid contracts for the sale of said real estate and premises, or any part thereof, but, before conveyance thereof, shall secure the release of the lien thereon hereby created in the manner hereinafter provided. “6. First party may, at its discretion, and at any time deposit with second party securities of the character specified in said section 5704 and section 5921, respectively, Laws of Missouri, extra session, 1933-’34, in lieu of the aforesaid note and this conveyance, and said second party shall immediately execute, acknowledge and deliver to first party an appropriate release hereof in writing, if he shall be satisfied, and only if satisfied, that such securities are of the value equal to or in excess of the face amount of said note. “7. Neither this conveyance, nor any part of it, nor any right, benefit or claim based upon or growing out of it, is assignable, either directly or indirectly, except by operation-.of law. “8. Whenever the aggregate amount of deposits made by first party and held on deposit by second party under the provisions of section 5704 and section 5921, respectively, Laws of Missouri, extra session, 1933-1934, and section 5709, Revised Statutes of Missouri for 1929, exclusive of the amount stated in the aforesaid note, shall exceed the aggregate amount of deposits by first party required by law, then all obligations in the aforesaid note and this conveyance shall immediately terminate, and said second party -shall, upon demand, and at the first party’s cost, execute, acknowledge and deliver to first party an appropriate release hereof in writing. “9. Upon satisfaction of the aforesaid note, and the lien herein created, by substitution of other securities, by payment of the amount thereof or otherwise, second party shall make, execute, acknowledge and deliver to first party at its cost an appropriate instrument in writing, acknowledging full satisfaction of the aforesaid note and release of the lien herein created and all rights, interest and claim of second party hereunder, which acknowledgment of satisfaction and release shall be in writing and duly executed and acknowledged by second party and delivered to first party. “10. Second party may give, first party written demand and notice by mail to pay the amount of said note, or to withdraw the aforesaid note and this conveyance as a reserve deposit, stating therein the reasons therefor and objections thereto, and, unless first party shall, within thirty days after receipt thereof, submit to second party evidence to his satisfaction (and of which he shall be the judge) that the aforesaid note and this conveyance, together with the first party’s other reserve deposits, meet the second party’s requirements with reference to the amount and- solvency of the reserve deposits to be maintained by said first party, first party shall either pay the amount of said note to the second party or deposit other securities to the satisfaction of second party, and of the character specified in section 5704 and section 5921, respectively, Laws of Missouri, extra session, 1933-1934, equal in amount to the aforesaid note, in lieu hereof, and thereupon all obligations in said note, and in this deed of trust herein created, shall ipso facto terminate, and acknowledgment of satisfaction and release hereof by written instrument shall be made, executed, acknowledged and delivered by second party to first party, at the first party’s cost. In the event the first party shall pay the amount of the said note to the second party, the second party shall invest the amount so paid in securities of the character specified in sections 5704 and 5921, Revised Statutes of Missouri, 1929, as amended by extra session, 1933-1934, and hold the same on deposit under the requirements of the law. “11. Upon failure of first party to pay the amount of said note, or to deposit other securities in lieu thereof, as provided in paragraph 10, the said note. shall be deemed to be due and payment thereof in default, and second party may take such action at law or in equity as may be appropriate and effective to enforce said note and to foreclose the lien therein created and to subject the title in fee simple of the above-described real estate and premises by sale or otherwise to the satisfaction of the same. If proceedings for the enforcement of this conveyance shall result in the sale of the aforesaid real estate and premises, any balance from the proceeds of such sale remaining after satisfaction of said note, and payment of the costs of such proceedings, including a reasonable charge for legal services, shall be payable to first party, except that if a deficiency then exists in the reserve deposit of first party, second party shall retain the entire proceeds from the sale of said real estate and premises, after payment of costs incident to such sale, and invest any sum retained in the character of securities specified in sections 5704 and 5921, respectively, Laws of Missouri, extra session, 1933-1934, as a reserve deposit of the first party. “12. Nothing contained in the aforesaid note and in this instrument shall be deemed or regarded as any waiver, release or forbearance of the provisions of law which limit the period of time which the first party may hold, without disposal, the above-described real estate. “In witness whereof, the said first party has caused these presents to be signed by its vice-president and attested by its secretary, and the corporate seal to be hereto attached, the day and year first above written. “Kansas City Life Insurance Company, “By Wood Arnold, Vice-President. “C. N. Sears, Secretary. (Seal).” The instrument was duly acknowledged.

The opinion of the court was delivered by Allegrucci, Luckert, Gernon, and Beier, JJ.: This is an appeal by the defendant, Michael L. Marsh II, from convictions of capital murder of Many Elizabeth Pusch (M.P.), first-degree premeditated murder of Marry Ane Pusch (Marry), aggravated arson, and aggravated burglary. Marsh has been sentenced to death for the capital offense, life imprisonment with a mandatory minimum term of 40 years for the murder of Marry, 51 months for aggravated arson, and 34 months for aggravated burglary. The district court ordered the last three sentences to be served consecutively. On appeal, Marsh raises 18 issues arising from the guilt phase of the trial and 16 issues from the penalty phase. We begin by observing that there is a heightened scrutiny of trial proceedings in a capital case. Beck v. Alabama, 447 U.S. 625, 637-38, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). However, because we conclude K.S.A. 21-4624(e) is unconstitutional on its face, precluding application of the death penalty, we will not apply a heightened scrutiny standard of review to the remaining issues on appeal. We deem the following issues to be controlling: (1) Is there substantial competent evidence to support each of Marsh’s convictions? (2) Was evidence improperly excluded by the district court? (3) Is K.S.A. 21-4624(e) unconstitutional on its face? (4) Is there substantial competent evidence to support imposition of a hard 40 sentence for the premeditated murder of Marry? and, (5) Is the hard 40 sentencing scheme set forth in K.S.A. 2003 Supp. 21-4635(a) unconstitutional? FACTS On the evening of June 17, 1996, Marry and her 19-month-old daughter, M.P., were murdered in their Wichita home. Marry died as a result of multiple gunshot wounds to her head and a knife wound to her heart. The perpetrator or perpetrators apparently did not physically harm M.P before setting the house afire and leaving the child to die in the ensuing conflagration. M.P. sustained severe bums to her body, resulting in multiple organ failure and death on June 23, 1996. Fire investigators determined the fire was intentionally started with an accelerant applied to Marry’s body. An autopsy revealed Marry had been shot 3 times, stabbed in the heart, and her throat slashed. The county coroner concluded Marry had died as a result of her wounds, with her body set afire after death. In the initial stages of investigation, detectives interviewed Marry’s husband, Eric Pusch (Pusch), who mentioned having spent most of June 17 with a friend, Michael Marsh, before going to work at approximately 4:30 p.m. as a delivery man for a local Pizza Hut. This led the police to interview Marsh. A series of interviews with Marsh resulted in his confession to shooting Marry and abandoning M.P. when he fled the residence. He told the detectives his motive was to obtain money from the Pusch family. According to Marsh, he planned to be in the home when Marry and M.P. arrived, tie them up, and wait until Pusch got home. He would then threaten Pusch with harm to his wife and child to obtain the money needed for a trip to Alaska. Marsh indicated his plan went awry when Many and M.P. arrived at the house earlier than he had anticipated; he panicked and shot Marry. Initially, he told detectives he could not recall how many times he pulled the trigger; subsequently, he indicated firing the gun once. Marsh was equivocal regarding the fire. At one point he indicated he probably did set the fire; at another point he stated he could not remember; and, finally, he denied setting the fire. Marsh denied Pusch was in any way involved in committing the crimes. There was substantial evidence corroborating Marsh’s confession. Marsh lived with his grandparents. Keys to the Pusch home were found discarded in a yard next to the grandparents’ home. Among the items recovered during execution of a search warrant at the grandparents’ residence were a .25 caliber pistol with five cartridges in the magazine, Marsh’s bloodstained tennis shoes, a pillow with bullet holes in it wrapped in duct tape, and a water bottle with duct tape around its neck. Expert testimony at trial established the pillow and bottle could be used as a makeshift silencer. Both Marry’s and M.P.’s clothing tested positive for medium petroleum vapors consistent with lighter fluid. However, Marsh’s clothing and shoes tested negative for vapors. Marry’s blood was found on one of Marsh’s tennis shoes; inexplicably, so also was the blood of Pusch. Prior to trial, the State filed a motion in limine to prevent Marsh from introducing circumstantial evidence suggesting that Pusch stabbed Marry and set the fire killing M.P. The State contended that Kansas law would prevent admission of circumstantial evidence tending to implicate Pusch in the face of direct evidence Marsh killed Marry and set the fire. Marsh’s trial counsel argued there was substantial evidence linking Pusch to the crimes and proffered the evidence the defendant sought to introduce at trial. The district court granted the State’s motion in limine, reasoning that the State’s evidence against Marsh was direct and thus the defense could not present the proffered circumstantial evidence to implicate Pusch. The jury found Marsh guilty of capital murder of M.P., first-degree murder of Many, aggravated arson, and aggravated burglary. At the penalty phase of the trial, the State relied upon the following statutory aggravating factors to support a death sentence: (1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; (2) he committed the crime in order to avoid or prevent a lawful arrest or prosecution; and (3) he committed the crime in an especially heinous, atrocious or cruel manner. See K.S.A. 21-4625. The jury found all three aggravating circumstances existed and were not outweighed by any mitigating circumstances and unanimously agreed to a sentence of death. At sentencing, the trial judge found sufficient evidence to support the sentence of death recommended by the jury. See K.S.A. 21-4624(f). The trial judge also found the same three aggravating circumstances were not outweighed by mitigating circumstances to support imposition of a hard-40 sentence. See K.S.A. 2003 Supp. 21-4638. Marsh also was sentenced to 51 months for aggravated arson and 34 months for aggravated burglary, with all sentences to be served consecutively. SUFFICIENCY OF THE EVIDENCE The issue on appeal is limited to whether the evidence was sufficient to support the juiy’s verdict finding Marsh guilty of capital murder. Marsh contends the evidence was insufficient to establish that: (1) he set the fire; (2) M.P.’s bums were the proximate cause of her death; or (3) he intentionally killed M.P. with premeditation. When a sufficiency of the evidence issue is raised, our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001). Marsh confessed to the crime of aggravated burglary. He admitted hiding in the Pusch home and shooting Marry in the head when she came into the bedroom. The .25 caliber pistol used to shoot Marry was subsequently found in Marsh’s 'backpack at his grandparents’ home. He admitted to attempting to start a fire with matches to conceal his crimes but claimed this was unsuccessful. Nonetheless, we know from the uncontroverted evidence there was a fire that caused burns to more than 75 percent of M.P.’s body. Although there is no direct evidence Marsh set the fire, the circumstantial evidence is sufficient for a rational factfinder to conclude beyond a reasonable doubt that he did so and that he abandoned M.P. to die in the fire. Marsh also argues the evidence was insufficient to establish M.P.’s bums were the proximate cause of her death. This argument must fail. Both the treating physician and the medical coroner testified M.P.’s cause of death resulted from the extensive bums to her body and the related failure of internal organs. Conversely, both doctors concluded the drugs given to M.P. at the hospital did not cause her death. A conviction of even the gravest offense may be sustained by circumstantial evidence, State v. Penn, 271 Kan. 561, 564, 23 P.3d 889 (2001), and it is the function of a jury and not an appellate court to weigh evidence and pass on the credibility of witnesses. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). After considering all of the evidence presented to the jury for its consideration upon this issue, we conclude Marsh’s sufficiency of the evidence arguments must fail. THE EXCLUSION OF MARSH’S EVIDENCE Marsh contends the district court erred in excluding evidence connecting Pusch to the crimes. Marsh argues the court’s pretrial order in limine excluding the evidence was erroneous for two reasons: First, the Kansas third-party evidence rule only excludes motive evidence in the absence of other relevant evidence, circumstantial or direct, to connect a third party to the crime; and second, after Pusch testified as a witness for the State, the “door was opened” and the order in limine should have been disregarded. “ ‘The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.’ ” State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002) (quoting Brunett v. Albrecht, 248 Kan. 634, 638, 810 P.2d 276 [1991]). A party whose evidence is excluded by a motion in limine has the responsibility of proffering sufficient evidence to preserve the issue on appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). We observe the State does not challenge the sufficiency of Marsh’s proffer to the district court. We conclude the issue has been properly preserved for appeal. We acknowledge our standard of review to be as stated in Evans: “K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. State v. Leitner, 272 Kan. 398, Syl. ¶ 7, 34 P.3d 42 (2001); State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994). “Errors in violation of a constitutional right of a party are governed by the federal constitutional error rule. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999). Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be found harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before the court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Leitner, 272 Kan. 398, Syl. ¶ 8; State v. Clark, 261 Kan. 460, 469, 931 P.2d 664 (1997); State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996). “This court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a. defendant’s fundamental right to a fair trial. Mays, 254 Kan. at 486 (quoting State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 [1978]); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). ‘ “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” ’ Gonzales, 245 Kan. at 699 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 [1973]). The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714.” State v. Evans, 275 Kan. at 102. With the above standards in place, we turn to the substantive issue: Did the district court err in concluding as a matter of law that circumstantial evidence connecting Pusch to the crimes, as outlined in Marsh’s proffer, was irrelevant? The general rule is that, unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999). We have also recognized the “probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.” State v. Scott, 271 Kan. 103, Syl. ¶ 2, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Under the above rules of evidence, we have said: “Where the State relies on direct rather than on circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is incompetent absent some other evidence to connect the third party with the crime.” (Emphasis added.) State v. Neff, 169 Kan. 116, Syl. ¶ 7, 218 P.2d 248, cert. denied 340 U.S. 866 (1950). We said in Neff that evidence of a third person’s motive alone would not have any tendency to prove a material fact, but instead would serve to “confuse the juiy, to permit [jurors] to indulge in speculations on collateral matters wholly devoid of probative value rel ative to who committed the [crime] and to divert their attention from the main issue they were sworn to try.” 169 Kan. at 123. Thus understood, the so-called third-party evidence rule has limited application and is most assuredly subordinate to the general rules of evidence and the statutory definition of relevancy in K.S.A. 60-401(b). Our recent decision in State v. Evans also helps to clarify the limited application of the rule excluding third-party motive evidence. In Evans, the State asserted it would call two eyewitnesses to testily Evans shot the victim. In opposing the State’s motion in limine, the defendant proffered the testimony of several witnesses who said they saw a third person, Reed, holding the murder weapon immediately after the shot. Thus there was direct evidence Evans shot the victim, and there was circumstantial evidence Reed shot the victim. The district court excluded the circumstantial evidence under the third-party evidence rule. 275 Kan. at 97-98. We reversed, noting that, in terms of probative value, there was no distinction between direct and circumstantial evidence. 275 Kan. at 105. We further stated: “The trial court’s exclusion of the proffered evidence was inconsistent with substantial justice and infringed upon Evans’ substantial rights. The evidence Evans sought to present in this case was more than just that someone other than the defendant may have committed the crime. There was evidence that linked Reed to the commission of the crime — witnesses saw Reed holding the gun immediately after the shot was fired — and evidence that Reed subsequently admitted to shooting [the victim] and dumping his body. Under these circumstances, it was erroneous for the trial court to have excluded Evans from presenting the proffered circumstantial evidence.” 275 Kan. at 106. Both Neff and Evans clarify that, while evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime. A corollary rule is that circumstantial evidence connecting a third party to a crime will not be excluded merely because the State relies upon direct evidence of the defendant’s guilt. In short, there is no bright line rule. Instead, there must be the sound exercise of judicial discretion dependent on the totality of facts and circumstances in a given case. Here, Marsh did not merely proffer evidence of Pusch’s motive. Rather, he also proffered other evidence of Pusch’s connection to the crime. This required the district judge to consider whether the evidence was relevant under K.S.A. 60-407(f), and his failure to do so constitutes error. We recognize there are decisions of our court arguably suggesting we should apply the third-party evidence rule more broadly. See State v. Bedford, 269 Kan. 315, 320, 7 P.3d 224 (2000); State v. Bornholdt, 261 Kan. 644, 666, 932 P.2d 964 (1997); State v. Beckham, 255 Kan. 310, 321, 875 P.2d 257 (1994); State v. Calvert, 211 Kan. 174, 179, 505 P.2d 1110 (1973). To the extent these cases are inconsistent with Evans, they are disapproved. There are additional reasons the district court’s refusal to admit the third-party evidence constituted error. First, even under the State’s inflated view of the third-party evidence rule, the rule should not have been applied as to the capital murder and the aggravated arson charges. The State’s evidence on those crimes was circumstantial, not direct, because Marsh specifically denied setting the fire leading to M.P.’s death. See Evans, 275 Kan. at 105-06. There also is merit to Marsh’s contention that, regardless of the propriety of the district court’s order in limine, it erred in failing to admit the proffered evidence after Pusch testified at trial. Marsh argues that Pusch’s testimony “opened the door” to evidence connecting Pusch to the crime. A party, through testimony, may open the door for otherwise inadmissible evidence. State v. Bedford, 269 Kan. at 322; State v. McClanahan, 259 Kan. 86, 94, 910 P.2d 193 (1996). The admission of circumstantial evidence of a third person’s culpability is constitutionally required where that third person is a government witness. 2 Jones on Evidence § 13:38 (1994) (citing the United States Supreme Court’s decisions in Olden v. Kentucky, 488 U.S. 227, 102 L. Ed. 2d 513, 109 S. Ct. 480 [1988]; and Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 [1974]). In both Olden and Davis, the Court held a defendant’s constitutional right of confrontation was violated upon a showing he was prohibited from engaging in “otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Olden, 488 U.S. at 231; Davis, 415 U.S. at 318. As has been noted, “[w]hat greater motive could a witness have to lie, than to deflect suspicion from himself or herself?” 2 Jones on Evidence § 13:38. Evidence that a witness was in fact the person who committed the crime is almost always relevant and should be admissible where the witness testifies against the defendant. However, we did uphold a district court’s refusal to allow such evidence in State v. Bedford. It is on this case that the State bases its argument that Pusch’s testimony did not open the door to evidence of his involvement in the crime. In Bedford, our decision was based upon unique circumstances. Although the estranged husband in Bedford testified on behalf of the State, his testimony simply showed that the victim went to a bar on the day of the murder, after which he never saw the victim again. 269 Kan. at 319-321. There was apparently no testimony by him in any way connecting the defendant to the murder and thus little need to question his credibility. Having concluded the district court erred in entering an order in limine, we turn to the issue of whether the exclusion of the third-party evidence violated Marsh’s fundamental right to a fair trial. We will not unduly extend the length of this opinion with an exhaustive review of the evidence proffered by Marsh that tended to connect Pusch to the crime. The fact is the district court misconstrued the third-party evidence rule and did not determine whether the proffered evidence was otherwise admissible under the rules of evidence. Clearly,' much of the evidence sought to be introduced demonstrated more than mere motive, and we are not prepared to say beyond a reasonable doubt that the district court’s error had little, if any, likelihood of altering the jmy’s determination that Marsh committed capital murder. See Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Upon remand, the district court must carefully consider the relevancy of each “piece” of challenged evidence to avoid prejudicing Marsh’s right to present his theoiy of defense. We conclude a new trial must be ordered for the crimes of capital murder and aggravated arson. CONSTITUTIONALITY OF K.S.A. 21-4624(e) At the penalty phase of Marsh’s trial, the district court’s jury instructions and verdict forms followed the language of K.S.A. 21-4624(e) by requiring a death sentence if the jury found aggravating circumstances were not outweighed by mitigating circumstances. The governing statute reads: “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.” K.S.A. 21-4624(e). Under the authority of this provision, Marsh’s jury was directed that a tie must go to the State. In the event of equipoise, i.e., the jury’s determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required. Since Marsh’s sentencing proceeding, we decided State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001). In Kleypas, we first held that the weighing equation in K.S.A. 21-4624(e) as written was unconstitutional under the Eighth and Fourteenth Amendments. We avoided striking the statute down as unconstitutional on its face only by construing it to mean the opposite of what it said, i.e., to require aggravating circumstances to outweigh mitigating circumstances. 272 Kan. 894, Syl. ¶ ¶ 45-48. This reasoning compelled us to vacate Kleypas’ death sentence and remand the case for reconsideration of the death penalty under proper instructions on the weighing equation. 272 Kan. 894, Syl. ¶ 49. In Kleypas, after the majority determined that K.S.A. 21-4624(e) as written violated the Eighth and Fourteenth Amendments, it added: “Our decision does not require that we invalidate K.S.A. 21-4624 or the death penalty itself. We do not find K.S.A. 21-4624(e) to be unconstitutional on its face, but rather, we find that the weighing equation impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” 272 Kan. at 1016. “The legislative intent in passing the death penalty act is obvious. K.S.A. 21-4624 provides for a death sentencing scheme by which a sentence of death is imposed for certain offenses. By simply invalidating the weighing equation and construing K.S.A. 21-4624(e) to provide that if the juiy finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 exists and, further, that such aggravating circumstance or circumstances outweigh any mitigating circumstance found to exist, the defendant shall be sentenced to death, the intent of the legislature is carried out in a constitutional manner. So construed, we hold that K.S.A. 21-4624 does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Our holding requires that this case be remanded for the jury to reconsider imposition of the death penally.” 272 Kan. at 1018. Here, Marsh correctly notes, and the State concedes, that Kley-pas requires us to vacate Marsh’s death sentence and remand for reconsideration of the death penalty under proper instructions on the weighing equation. Marsh makes the further argument, however, that K.S.A. 21-4624(e) is unconstitutional on its face and that the portion of our Kleypas decision that saved the statute through judicial construction must be overruled. We agree. After a discussion of applicable case law, the Kleypas majority succinctly summarized why K.S.A. 21-4624(e) as written did not comport with the Eighth and Fourteenth Amendments: “The legislature cannot mandate a death sentence for any category of murder. The legislature is limited to defining who is eligible, within constitutional limits, to receive the death penalty. It is for the jury, within permissible guidelines, to determine who will live and who will die. The issue is not whether the penalty of death is per se cruel and unusual punishment. Furman [o. Georgia, 408 U.S. 238] did not hold that the death penalty was cruel and unusual punishment per se under the Eighth Amendment. Here the issue, as that before the Furman court, is whether the process used to select which defendant will receive the irrevocable penalty of death ‘comports with the basic concept of human dignity at the core of the [Eighth] Amendment.’ Gregg [v. Georgia,] 428 U.S. at 183. “Is the weighing equation in K.S.A. 21-4624(e) a unique standard to ensure that the penalty of death is justified? Does it provide a higher hurdle for the prosecution to clear than any other area of criminal law? Does it allow the jury to express its ‘reasoned moral response’ to the mitigating circumstances? We conclude it does not. Nor does it comport with the fundamental respect for humanity underlying the Eighth Amendment. Last, fundamental fairness requires that a ‘tie goes to the defendant’ when life or death is at issue. We see no way that the weighing equation in K.S.A. 21-4624(e), which provides that in doubtful cases the jury must return a sentence of death, is permissible under the Eighth and Fourteenth Amendments.” 272 Kan. at 1015-16. In dissent, Justice Davis disagreed with the majority’s holding that the weighing equation as written in K.S.A. 21-4624(e) was unconstitutional. 272 Kan. at 1125. Chief Justice McFarland joined in the dissent, and Justice Abbott, writing separately, concurred with Justice Davis. 272 Kan. at 1136. Since Kleypas was decided, there have been no persuasive Eighth or Fourteenth Amendment cases helpful to a resolution of the facial constitutionality questions. Although Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), overruled Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), which had been relied upon by the Kleypas majority, it did so only on a distinct point of law, i.e., whether a jury or a judge must make the findings required on aggravating and mitigating circumstances. In their dissents today, Justices Davis and Nuss nevertheless revisit the constitutionality of K.S.A. 21-4624(e) as written. They, joined by Chief Justice McFarland, argue first that equipoise will be rare. We cannot know this. Second, they focus on cases that predate Walton and analyze distinct statutory language, asserting these decisions mean the Constitution guarantees capital defendants only an opportunity to have mitigating evidence considered by the jury. These cases, obviously, do not control. Finally, our dissenting colleagues protest that we should rely on language in Justice Blackmun’s Walton dissent to conclude that a majority of the United States Supreme Court has already implicitly decided that the equipoise provision before us is constitutional. Simply stated, that position failed to draw a majority in Kleypas; Justices Lockett, Allegrucci, Six, and Larson voted against it. It still fails to draw a majority for good reason. Although we do not believe any useful purpose is served by further extensive restatement of the opposing rationales of the Kleypas majority and dissent, we feel compelled to re-emphasize that a majority of the United States Supreme Court has never squarely addressed or decided the facial constitutionality of the equipoise provision before us. This remains true, no matter how lower federal courts or other state courts have interpreted the ruling in Walton. The Arizona statute at issue in that case was worded differently; and, as Justice Nuss acknowledges, Justice White’s plurality decision neither used the word “equipoise” nor specifically referred to situations in which aggravating and mitigators are in balance. After full reconsideration, we reject reliance on Justice Blackmun’s Walton dissent and continue to adhere to the Kleypas majority’s reasoning and holding that K.S.A. 21-4624(e) as written is unconstitutional under the Eighth and Fourteenth Amendments. This brings us to the next issue: whether Kleypas properly construed the statute to reverse the effect of equipoise under the weighing equation. As Justice Davis recently emphasized, “ ‘it is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]’ ” State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 339, 76 P.3d 1000 (2003) (quoting In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). We also are mindful of additional canons of statutory interpretation related to constitutional challenges: “The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond a reasonable doubt. [Citation omitted.]” State v. Engles, 270 Kan. 530, 531, 17 P.3d 355 (2001). “[A] statute apparently void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled ‘The Bet’, 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).” ’ ” Kleypas, 272 Kan. at 1017. Applying these two canons in Kleypas, we held that the unconstitutional weighing equation in K.S.A. 21-4624(e) could be construed to carry out the legislature’s intent to enact a constitutional death penalty statute. 272 Kan. at 1018. This approach is commonly referred to by legal scholars as the “avoidance doctrine” or the “rule of constitutional doubt.” As articulated by the United States Supreme Court, the rule of constitutional doubt is that the Supreme Court will not strike down a statute as unconstitutional if the statute can be construed, in a manner consistent with the will of Congress, to comport with constitutional limitations. This rule of constitutional construction was described as follows in Almendarez-Torres v. United States, 523 U.S. 224, 238, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998): “ ‘This canon is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations.’ [Citations omitted.] The doctrine seeks in part to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections. It is not'designed to aggravate that friction by creating (through the power of precedent) statutes foreign to those Congress intended, simply through fear of a constitutional difficulty that, upon analysis, will evaporate. Thus, those who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held [to be] unconstitutional. Only then will the doctrine serve its basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made. For similar reasons, the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a ‘fair’ one.” In short, the United States Supreme Court is willing to exercise its power to construe statutes in a constitutional manner to save a legislative enactment rather than strike it down. However, both the United States Supreme Court and this court have acknowledged that the power to construe away constitutional infirmity is limited. “ ‘Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature.’ ” Salinas v. United States, 522 U.S. 52, 59-60, 139 L. Ed. 2d 352, 118 S. Ct. 469 (1997). “We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.” United States v. Locke, 471 U.S. 84, 96, 85 L. Ed. 2d 64, 105 S. Ct. 1785 (1985). The maxim cannot apply where the statute itself is unambiguous. United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494, 149 L. Ed. 2d 722, 121 S. Ct. 1711 (2001). Our formulation of the avoidance doctrine is similar to that of the federal courts. In State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174 (1989), we stated: “This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute.” These cases make plain that the avoidance doctrine is applied appropriately only when a statute is ambiguous, vague, or over-broad. The doctrine is not an available tool of statutory construction if its application would result in rewriting an unambiguous statute. The court’s function is to interpret legislation, not rewrite it. State v. Beard, 197 Kan. 275, 278, 416 P.2d 783 (1966); Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611 (1919). It is apparent to us that Kleypas failed to apply the fundamental rule of statutory construction as stated in State ex reí Graeber before moving to application of the canons that support the avoidance doctrine. Indeed, the fundamental rule of statutory construction was not even noted in the majority’s discussion and resolution of the equipoise issue. Moreover, the Kleypas court’s rationale for the rewriting of K.S.A. 21-4624(e) rested entirely upon the premise that the legislature intended to pass a death penalty statute that was constitutional. 272 Kan. at 1018. This begged the question of whether the legislature actually succeeded in doing so. It also constituted an insufficient justification for application of the avoidance doctrine to an unambiguous statute. Such construction by any other name is a usurpation of the legislative prerogative. See Beard, 197 Kan. at 278; see also People v. LaValle, 3 N.Y. 3d 88, 817 N.E. 2d 341 (2004) (state’s highest court cannot rewrite unconstitutional death penalty provision; it lacks legislative power to fill void left by elimr ination of invalid provision). This point was not lost upon Justice Davis in his Kleypas dissent. His explanation was, and still is, persuasive: . “The majority reverses the weighing equation adopted by the legislature in K.S.A. 21-4624(e) with the idea that the intent of the legislature is to be carried out in a constitutional manner. There is no question, based on the express language of the legislature, that it intended to mandate the imposition of a death sentence where the existence of such aggravating circumstances is not outweighed by any mitigating circumstances found to exist. The precise question was brought to the attention of the legislature in testimony by the attorney general, who recommended that the statute provide for the aggravating circumstances to outweigh the mitigating circumstances before a death sentence may be imposed. The legislature rejected that suggestion of the attorney general and adopted our present statute. “The majority, however, replaces the express language with its own language based upon its conclusion that this new language carries out the intent of the legislature in a constitutional manner. Because the new language mandated by the majority is contrary to the expressed intent and language adopted by the legislature in K.S.A. 21-4624(e), I believe the majority invades the province of the legislature. In the face of a clearly expressed legislative intent, the majority not only strikes this clear language as unconstitutional but adopts language exactly the opposite of what the legislature stated. If the language of the statute offends the Constitution, the appropriate judicial solution, in my opinion, is to so hold and let the legislature resolve the matter consistent with the court’s opinion.” 272 Kan. at 1124-25. We agree with Justice Davis’ reasoning and conclusion that the Kleypas majority erred in substituting a weighing equation with exactly the opposite effect of the equation provided by the legislature. The holding eviscerated the legislature’s clear and unambiguous intent regarding equipoise and thus overstepped the judiciary’s authority to interpret legislation rather than make it. Chief Justice McFarland’s dissent, which argues that the legislature apparently did not mind the interference misses the point. (It also reads too much into its inaction when the court had removed its incentive to act.) Justice Davis had it exacdy right: The appropriate, limited judicial response to the problem identified for the first time in Kleypas was to hold K.S.A. 21-4624(e) unconstitutional on its face and let the legislature take such further action as it deemed proper. This was especially true given the legislative history. As the Kley-pas majority observed: “It is important to note that on March 14, 1995, the attorney general analyzed the statute and recommended in the House Judiciary Committee of the Kansas Legislature that the statute be amended to require that aggravating circumstances outweigh mitigating circumstances, stating: “Now if they are equal, ‘tie’ goes to state. We’re proposing ‘tie’ goes to defense. . . .” Unfortunately, the legislature did not follow the attorney general’s recommendation.” Kleypas, 272 Kan. at 1014-15. In Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), the bedrock principle of separation of powers in our tripartite form of government was at issue and eloquently explained. Padilla, an American citizen, was being held by the United States as an “enemy combatant” associated with Al Qaeda at a naval brig in South Carolina. He filed a habeas petition, relying primarily upon 18 U.S.C. § 4001(a) (2000), which provides: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In support of its motion to dismiss, the Government argued a literal reading of 18 U.S.C. § 4001(a) would conflict with Article II, section 2, clause 1 of the Constitution, which makes the President of the United States “Commander in Chief of the Army and Navy of the United States.” In rejecting the government’s argument, the court stated: “The government suggests that because reading the statute to impinge on the President’s Article II powers, including detention of enemy combatants, creates a danger that the statute might be found unconstitutional as applied to the present case, a court should read the statute so as not to cover detention of enemy combatants, applying the canon that a statute should be read so as to avoid constitutional difficulty. See, e.g., Jones v. United States, 529 U.S. 848, 857, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000) (citing ‘the guiding principle that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” ’) (quoting United States ex rel. Attorney General v. Delaware A Hudson Co., 213 U.S. 366, 408, 29 S. Ct. 527, 53 L. Ed. 836 (1909)). “However, this doctrine of constitutional avoidance ‘ “has no application in the absence of statutory ambiguity.” ’ HUD v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 1235, 152 L. Ed. 2d 258 (2002) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001)). Any other approach, as pointed out in Rucker, ‘ “while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution." ’ Id. at 1235-36 (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)). That is, if a court read an ambiguity into an unambiguous statute simply for the purpose of avoiding an adverse decision as to the constitutionality of that statute, the court would be exercising legislative powers and thereby usurping those powers. There is no ambiguity here. The plain language of the statute encompasses all detentions of United States citizens. Therefore, the constitutional avoidance canon cannot affect how the statute is read.” 233 F. Supp. 2d at 597. Our holding that K.S.A. 21-4624(e) is unconstitutional on its face presumptively requires that we overrule that portion of KLeypas upholding the statute through application of the avoidance doctrine. The only contrary argument left for our consideration is that the doctrine of stare decisis should prevent us from doing so. In Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541(1990), overruled on other grounds Bair v. Beck, 248 Kan. 824, 811 P.2d 1176 (1991), we stated: “It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised. Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by this court. . . . The application of stare decisis ensures stability and continuity— demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law. ". . . The general American doctrine as applied to courts of last resort is that a court is not inexorably bound by its own precedents but will follow the rule of law which it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is not longer sound because of changing conditions and that more good than harm will come by departing from precedent.” This is consistent with the United States Supreme Court’s 2003 decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 525, 123 S. Ct. 2472 (2003), in which the Court overruled its 1986 decision in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986). The Court stated: “The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828, 115 L. Ed.2d 720, 111 S. Ct. 2597 (1991) (‘Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision, [however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience]” ’ (quoting Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed. 604, 60 S. Ct. 444 (1940)).” 539 U.S. at 577. Similarly, in Ring, 536 U.S. 584, the Court observed that, “[although ‘ “the doctrine of stare decisis is of fundamental importance to the rule of law[,]” . . . [o]ur precedents are not sacrosanct.’ Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989), (quoting Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 494 (1987). ‘[W]e have overruled prior decisions where the necessity and propriety of doing so has been established.’ 491 U.S. at 172.” In particular, the United States Supreme Court has frequently emphasized that stare decisis has less persuasive force in constitutional adjudication. As Justice Scalia stated in Vieth v. Jubelirer, 541 U.S. 267, 305-06, 158 L. Ed 2d 546, 124 S. Ct. 1769, 1792 (2004), which overturned precedent concerning congressional redistricting: “Considerations of stare decisis do not compel us to allow Bandemer to stand. That case involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress. See Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2697, 115 L. Ed. 2d 720 (1991). They are doubly weak in Bandemer because the majority’s inability to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience. And they are triply weak because it is hard to imagine how any action taken in reliance upon Bandemer could conceivably be frustrated — except the bringing of lawsuits, which is not the sort of primary conduct that is relevant. “While we do not lightly overturn one of our own holdings, ‘when governing decisions are unworkable or are badly reasoned, “ ‘this Court has never felt constrained to follow precedent.’ ” Id., at 827, 111 S. Ct. 2597 (quoting Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 2d 987 (1944)). Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and de cline to adjudicate these political gerrymandering claims.” See also Harris v. Untied States, 536 U.S. 545, 581, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (Thomas, J., dissenting) (when court “has wrongly decided a constitutional question, the force of stare decisis is at its weakest”; relative recency of rule also weakens precedential value). Furthermore, a rule not previously subjected to “full-dress argument” is rightly examined more closely before it is applied a second time. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 571, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993). Such should be the case with our sua sponte application of the avoidance doctrine in KLeypas. Although we should not casually discard precedent, neither should we shy away from admitting “ 'when governing decisions are unworkable or are badly reasoned.’ ” United States v. Dixon, 509 U.S. 688, 712, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993) (citing Payne v. Tennessee, 501 U.S. at 827). The Chief Justice’s dissent focuses on factors listed by Justice O’Connor in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992), “prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.” 505 U.S. at 854-55. But Justice O’Connor explicitly labeled “examples.” Any exhaustive list of such considerations necessarily would also include whether the court now recognizes that its earlier ruling was incorrect, unwise, or did violence to the roles assigned the various branches of government. We conclude that the second holding of KLeypas — that the equipoise provision could be rescued by application of the avoidance doctrine — is not salvageable under the doctrine of stare decisis. That holding of KLeypas is overruled. Stare decisis is designed to protect well settled and sound case law from precipitous or impulsive changes. It is not designed to insulate a questionable constitutional rule from thoughtful critique and, when called for, abandonment. This is especially true in a situation like the one facing us here. KLeypas’ application of the avoidance doctrine was not fully vetted. It is young and previously untested. Its rewriting of K.S.A. 21-4624(e) was not only clearly erroneous; as a constitutional adjudication, it encroached upon the power of the legislature. Our decision today to confine the application of the avoidance doctrine to appropriate circumstances recognizes the separation of powers and the constitutional limitations of judicial review and rightfully looks to the legislature to resolve the issue of whether the statute should be rewritten to pass constitutional muster. This is the legislature’s job, not ours. This decision does more in the long run to preserve separation of powers, enhance respect for judicial review, and further predictability in the law than all the indiscriminate adherence to stare decisis can ever hope to do. HARD 40 SENTENCE — SUFFICIENCY Marsh contends there was insufficient evidence to support the district court’s finding of aggravating circumstances not outweighed by mitigating circumstances. See K.S.A. 2003 Supp. 21-4635. Where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 proceeding, the standard of review to be applied is whether, after reviewing all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found the existence of the aggravating circumstances by a preponderance of the evidence. In imposing the hard 40, the district court found the same ag-gravators as did the jury in imposing the death penalty: (1) the defendant knowingly or purposely killed or created a great risk of death to more than one person; (2) the killing was especially heinous, atrocious, or cruel; and (3) the killing was committed in order to avoid or prevent a lawful arrest or prosecution. Further, in applying the weighing equation as required in K.S.A. 2003 Supp. 21-4635, the district judge stated: “I believe that these aggravating factors, each one individuallythat you wouldn’t necessarily need to take the three of them as a whole combinedthat any one of those three are sufficient to outweigh any mitigating circumstances in this case regarding the death of [Marry], which would require the imposition of the maximum penalty.” (Emphasis added.) Because we have concluded Marsh is entitled to a new trial on the charge of capital murder, a finding he knowingly or purposely killed or created a great risk of death to more than one person is problematic. Likewise, the district court’s failure to admit evidence of Pusch’s possible involvement could arguably influence the finding that Many’s killing was especially heinous, atrocious, or cruel. There does exist, however, sufficient evidence to support the district court’s finding that Many’s murder was committed by Marsh to avoid or prevent a lawful arrest or prosecution. In his confession to investigators, Marsh indicated that, after he entered the Pusch residence, he decided not to carry out the extortion; but Many’s early arrival threw him into a panic, and he shot. her. The district court could reasonably infer Marsh shot Marry to avoid lawful arrest or prosecution for aggravated burglary. Conversely, the mitigating evidence presented by Marsh consisted of several character witnesses who testified to Marsh’s character at the time they had known him. We conclude, based upon the district court’s statement, that any one of the aggravating circumstances was not outweighed by mitigating circumstances. The district court’s imposition of the hard 40 sentence is upheld. See State v. Lopez, 271 Kan. 119, 141, 22 P.3d 1040 (2001) (stating the district court’s weighing of aggravating and mitigating circumstances is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.) HARD 40 SENTENCE — CONSTITUTIONALITY Marsh argues the Kansas hard 40 sentencing scheme is unconstitutional because K.S.A. 2003 Supp. 21-4635 does not require aggravating circumstances to be submitted to a jury and proved beyond a reasonable doubt. He contends State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), should be overruled. This argument was not made to the district court. Normally, constitutional grounds asserted for the first time are not properly before this court for review. State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, we have long recognized three exceptions to this rule: (1) where the newly asserted claim involves only a question of law arising on proved or admitted facts and determinative of the case; (2) where consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) where the district court is right for the wrong reason. See Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). Here, the issue raised by Marsh requires we address only a question of law. In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the United States Supreme Court held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Conley, we held the hard 40 sentencing scheme did not increase the statutory maximum, but rather simply set a statutory minimum. See 270 Kan. at 33-34. We also concluded our holding was consistent with the United States Supreme Court’s pronouncement in McMillan v. Pennsylvania, 477 U.S. 79, 88-89, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). In McMillan, the Court held a judicial finding of aggravating factors that only raises the minimum sentence that may be imposed by the district court was permissible. 477 U.S. at 89. Marsh argues the United States Supreme Court’s ruling in Ring v. Arizona, 536 U.S. 584, requires us to reverse our holding in Conley. We disagree. In State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), this court addressed a constitutional challenge to the hard 50 sentencing scheme under K.S.A. 2001 Supp. 21-4635. The court noted the defendant’s reliance on Ring but found no reason to alter its reasoning and holdings in State v. Douglas, 274 Kan. 96, 49 P.3d 446 (2002), Conley, and State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002). Boldridge, 274 Kan. at 812. Additionally, Marsh contends we misread McMillan in deciding Conley. This is not a novel argument. We have consistently declined to overrule Conley and have rejected the argument that our reliance on McMillan was misplaced. See State v. Albright, 273 Kan. 811, 826-27, 46 P.3d 1167 (2002). The decision in Harris v. United States, 536 U.S. 545, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002), decided the same day as Ring, reaffirms the continuing validity of McMillan. In Harris, the Supreme Court considered Apprendi but held that increasing a defendant’s minimum sentence based upon a judge’s finding that a weapon was brandished did not violate the Fifth or Sixth Amendments. Harris, 536 U.S. at 568. For the foregoing reasons, we reject Marsh’s argument that Conley was wrongly decided and should be overruled. CONCLUSION We conclude K.S.A. 21-4624(e) is unconstitutional on its face, thus rendering moot guilt and penalty phase issues dependent on imposition of the death penalty. We have carefully considered all of the issues of trial error raised by Marsh; we hold those not discussed in this opinion insufficient to constitute reversible error in this case. We affirm Marsh’s convictions and sentences for aggravated bur-glaiy and the premeditated murder of Many; we reverse and remand for new trial Marsh’s convictions for the capital murder of M.P. and aggravated arson. Davis, J., dissenting: I respectfully dissent from the majority’s holding that the weighing equation in K.S.A. 21-4624(e) is unconstitutional on its face. In my opinion, K.S.A. 21-4624(e) was constitutional when it was passed by the Kansas Legislature and remains constitutional today. The majority holds that the Kansas death penalty is unconstitutional on its face under the Eighth Amendment to the United States Constitution. According to the majority, the offending provision lies in the following weighing equation found in K.S.A. 21-4624(e): “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.” (Emphasis added.) In State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), the majority held that the above weighing equation was unconstitutional but attempted to salvage the death penalty by rewriting the equation language to provide that the aggravating circumstances must outweigh .the mitigating circumstances before death may be imposed. The majority today holds that the attempt in Kleypas was erroneous and that the entire death penalty is unconstitutional under the Eighth Amendment. The majority, in this case, voids the entire death penalty law because in the extremely unlikely event that a jury would find that the aggravating circumstance or circumstances exactly equal the mitigating circumstances, death must be imposed. The majority claims that in such an unlikely event a tie must go to the defendant. According to the majority, because under the weighing equation adopted by the Kansas Legislature the tie goes to the State, the entire death penalty is unconstitutional. I begin with the majority’s conclusion that in order for the death penalty to be constitutional in Kansas, a tie in the aggravating circumstances and mitigating circumstances must go to the defendant under the Eighth Amendment. I agree with the majority that the Kansas Legislature consciously chose the weighing equation but strongly disagree that the language used is unconstitutional under the Eighth Amendment. I may personally disagree with the legislature’s policy decision that a tie goes to the State but I cannot conclude that its enactment is unconstitutional because of that language unless the United States Constitution, as interpreted by the United States Supreme Court, supports such a conclusion. An analysis of the United States Supreme Court jurisprudence, as well as other decisions addressing this point, does not support such a conclusion and, in fact, supports the opposite conclusion. As a prelude to my analysis, I think it is important to stress just how unlikely it is that the “tie” envisioned by the majority would ever occur. First, before the weighing equation is even implicated, it must be proven beyond a reasonable doubt that the defendant is guilty of the crime of capital murder. Thus, for the defendant to even be eligible for the death penalty, a juiy must find the existence of one or more of the following factors that make the murder committed more serious then even first-degree murder: (1) the intentional and premeditated killing of any person in the commission of kidnapping or aggravated kidnapping with the intent of holding such person for ransom; (2) the intentional and premeditated killing of any person pursuant to contract or agreement; (3) the intentional and premeditated killing of any person by an inmate or prisoner; (4) the intentional and premeditated killing of the victim of rape, criminal sodomy, or aggravated criminal sodomy; (5) the intentional and premeditated killing of a law enforcement officer; (6) the intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; or (7) the intentional and premeditated killing of a child under the age of 14 in the commission of kidnapping or aggravated kidnapping where such crime was committed with the intent to commit a sex offense upon or with the child or with intent that the child commit or submit to a sex offense. See K.S.A. 21-3439. Once the defendant has been convicted of capital murder, he or she is death eligible. However, the death sentence may still not be imposed without a consideration of an additional set of aggravating circumstances and a consideration of mitigating circumstances. The aggravating circumstances are set forth in K.S.A. 21-4625, as follows: “(1) The defendant was previously convicted of a felony in which die defendant inflicted great bodily harm, disfigurement, dismemberment or death on another. “(2) The defendant knowingly or purposely killed or created a great risk of death to more than one person. “(3) The defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value. “(4) The defendant authorized or employed another person to commit the crime. “(5) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution. “(6) The defendant committed the crime in an especially heinous, atrocious or cruel manner. “(7) The defendant committed the crime while serving a sentence of imprisonment on conviction of a felony. “(8) The victim was killed while engaging in, or because of the victim’s performance or prospective performance of, the victim’s duties as a witness in a criminal proceeding.” These eight categories of aggravating circumstances, all extremely serious, qualify a defendant for death only after the prosecution has proved the existence of one or more of them beyond a reasonable doubt. However, death may still not be imposed without consideration of mitigating circumstances. A nonexclusive list of mitigating circumstances that a defendant may present to the jury are set out in K.S.A. 2003 Supp. 21-4626: “(1) The defendant has no significant history of prior criminal activity. “(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbance. “(3) The victim was a participant in or consented to the defendant’s conduct. “(4) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor. “(5) The defendant acted under extreme distress or under the substantial domination of another person. “(6) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired. “(7) The age of the defendant at the time of the crime. “(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by the victim.” As stated above, these mitigating circumstances are nonexclusive. Thus, the juiy is instructed that mitigating circumstances it may consider also include that “[a] term of imprisonment is sufficient to defend and protect the people’s safety from the defendant” as well as “any other aspect of the defendant’s character, background or record, and any other aspect of the offense which was presented in either the guilt or penalty phase which you find may serve as a basis for imposing a sentence less than death.” See PIK Crim. 56.00-D (2003 Supp.). Note again the serious nature of the mitigating circumstances and the fact that there is no limit on mitigating circumstances that a defendant may present to the jury. Also note that the defendant is not required to prove these circumstances beyond a reasonable doubt. For example, assume that a defendant Mils a witness who was to testify against him in his upcoming criminal trial (aggravating circumstance). Assume further that the defendant is 19 years old at the time, came from a broken home, was abused as a child, and has no significant past criminal history (mitigating circumstances). Once the prosecution has presented evidence of the aggravating circumstance(s) and the defendant has presented as much mitigating evidence as he wishes to the jury, it is now up to the jury to determine whether to impose the death sentence. Under our law, if the mitigating circumstances outweigh the aggravating circumstance^) death cannot be imposed. If aggravating circumstances outweigh mitigating circumstances death is imposed. Before deliberations, the juiy is instructed similar to the following: 1. If the jury unanimously finds beyond a reasonable doubt that the aggravating factor exists, and that the aggravating factor outweighs the mitigating circumstances found to exist, the sentence is death. • 2. If the jury unanimously finds beyond a reasonable doubt that the aggravating factor exists, and that the mitigating circumstances found to exist outweigh the aggravating circumstance, a prison sentence is the sentence. 3. If the jury unanimously finds beyond a reasonable doubt that the aggravating factor exists, and that the aggravating factor is not outweighed by any mitigating circumstances found to exist (this would include situations where aggravating factor and mitigating circumstances are equal), the defendant is sentenced to death. Each member of die jury then decides whether the aggravating factor has been proven beyond a reasonable doubt. Unless the jury unanimously concludes that at least one aggravating factor has been proven, death cannot be imposed. Once an aggravating factor has been proven, each juror decides what weight to give that aggravating factor and then what weight to give the mitigating factors. The total weight of the aggravating factor and the mitigating factors are then compared. In order to impose death, each member of the jury must find that the aggravating factor is not outweighed by the mitigating factors. If even one member of the jury finds that the aggravating factor is outweighed by the mitigating factors, then the defendant cannot be sentenced to death. Further, as noted above, the jury is not limited on what mitigating evidence it can consider. Thus, even if a juror in our example determines that the mitigating circumstances offered by the defendant, i.e., that he was 19 years old at the time, came from a broken home, was abused as a child, and has no significant criminal history, are insufficient to outweigh the aggravating factor, that juror still does not have to vote for death if there is any other circumstance or circumstances which in the juror’s mind pushes the weight of the mitigating circumstances past the aggravating circumstance. Such circumstances can include the juror’s feeling that life in prison is a sufficient sentence or simply that the defendant does not deserve to die. As can be seen by the above example, the weighing process is not just a process of counting aggravating and mitigating circumstances. It is a process of assessing intangibles: looking at the total weight of the aggravating factors and comparing it to the total weight of the mitigating circumstances. It is for this reason that it is highly unlikely the jury will conclude that the aggravating circumstances and mitigating circumstances are exactly equal. Either the mitigating circumstances will outweigh the aggravating circumstances and a life sentence will be imposed or the aggravating circumstances will outweigh the mitigating circumstances and death will be imposed. In the extremely unlikely event that the jury does find the aggravating circumstances and the mitigating circumstances to be exactly equal, K.S.A. 21-4624(e), as written, does mandate that the sentence be death. However, a careful examination of the United States Supreme Court’s death penalty jurisprudence shows that this result does not violate the Eighth Amendment. There is no question that the Eighth Amendment imposes several requirements with regard to capital sentencing. First, states are required to limit and channel the discretion of judges and juries “so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). In order for a capital sentencing scheme to pass constitutional muster, it must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). The Kansas Death Penalty Act narrows the class of persons eligible for the death penalty in two ways. First, it requires a conviction of capital murder for death penalty eligibility rather than simply applying the death penalty to all first-degree murders. Second, it narrows that eligibility even further through the weighing of aggravating and mitigating factors during the penalty phase. Thus, the Kansas Legislature has limited and channeled the discretion of judges and juries “so as to minimize the risk of wholly arbitrary and capricious action” in accord with Gregg v. Georgia. Further, even though the Eighth Amendment requires that jury discretion be guided, it also requires that the sentencer be allowed to retain sufficient discretion to consider all relevant mitigating evidence, so that it can ensure that “ ‘death is the appropriate punishment in a specific case.’ ” Lockett v. Ohio, 438 U.S. 586, 601, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976). To this end, the sentencer cannot “be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604. Further, the sentencer must be able to “give effect” to this evidence. Penny v. Lynaugh, 492 U.S. 302, 328, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). Again, it must be noted that Kansas lists eight important mitigating circumstances and puts no limit on the number of such circumstances a defendant may present. The jury is instructed that it must consider and give effect to this evidence. Once these core principles are satisfied, however, the Eighth Amendment requires no more. Rather, the Supreme Court has made it clear that within the above guidelines, states are given wide latitude to adopt the procedure through which these principles are carried out. See Zant v. Stephens, 462 U.S. at 890-91 (stating that “the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances”). (Emphasis added.) The majority opinion says that the failure of the legislature to allow death only when aggravating circumstances outweigh mitigating circumstances is unconstitutional. In enacting its death penalty statute, Kansas has chosen to follow the Florida system, which provides for aggravating circumstances which are then weighed against any mitigators found to exist as set forth above.. See Stringer v. Black, 503 U.S. 222, 229-231, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992). The Supreme Court held that the Florida system satisfied constitutional requirements in Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976). In states which follow the Florida system, i.e. “weighing states,” questions have arisen over the composition of the weighing equation. The Supreme Court answered those questions in a series of three cases: Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990); Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990); and Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), overruled on other grounds Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). In Blystone, the question was whether having a mandatory weighing equation which required death where the jury found that the aggravating circumstances outweighed the mitigating circumstances violated the Constitution. The argument was that this mandatory penalty somehow “limited the discretion of the jury” in contravention of Lockett’s requirement that a capital jury be allowed to consider and give effect to all relevant mitigating evidence. See Blystone, 494 U.S. at 303. The Supreme Court held that the Pennsylvania scheme satisfied the Lockett requirement for two reasons. First, the statute did not limit the mitigating factors that could be taken into account (Kansas does not limit the mitigating factors). Second, it did not automatically mandate death upon conviction for certain types of murder (nor does Kansas); rather, it mandated the imposition of death only after a finding that the aggravating circumstances outweighed the mitigating circumstances. 494 U.S. at 305-06. The Supreme Court stated that “[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” 494 U.S. at 307. Further, the Supreme Court noted that it was not particularly concerned with the form or procedure used in establishing weighing equations so long as the requirement that the jury be allowed to consider and give effect to all relevant mitigating evidence is satisfied, stating: “Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” (Emphasis added.) 494 U.S. at 309. The next case concerning weighing equations, Boyde v. California, addressed a similar question with regard to California’s weighing equation, which mandated death upon a jury’s finding that the aggravating circumstances outweigh mitigating circumstances. The Supreme Court in Boyde, for the same reasons as in Blystone, found the statute constitutional. In the process, the Supreme Court reiterated that “ ‘[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence’ ” and further stated that “there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” 494 U.S. at 377. Blystone and Boyde stand, therefore, for the proposition that it is not unconstitutional for a weighing equation to mandate death upon certain findings, so long as the juiy is allowed to consider and give effect to all relevant mitigating circumstances. They also confirm that a weighing equation which mandates death upon the jury’s finding that aggravating circumstances outweigh mitigating circumstances satisfies this standard. They did not, however, address whether other versions of the weighing equation, specifically the weighing equation used in K.S.A. 21-4624(e), meet this standard. That question was left for the next “weighing equation” case, Walton v. Arizona, 497 U.S. 639. Walton is particularly important to this case because of the similarities between the weighing equation at issue in Walton and that in K.S.A. 21-4624. The Arizona weighing equation in Walton provided that the sentencer (in that case, a judge) was to weigh the aggravating circumstances against the mitigating circumstances and impose death if there were “no mitigating circumstances sufficiently substantial to call for leniency.” Walton, 497 U.S. at 643-44. Although the words used are different, Arizona, then and now, has interpreted this weighing equation to mean exactly the same as the one used in K.S.A. 21-4624(e): Death is the penalty unless the aggravating circumstances are outweighed by the mitigating circumstances. See State v. Gretzler, 135 Ariz. 42, 53-55, 659 P.2d 1 (1983); State v. Ysea, 191 Ariz. 372, 375, 956 P.2d 499 (1998) (stating that “[i]f the judge finds one or more of the aggravating factors listed in § 13-703[F], the defendant is death eligible, and if the aggravating factors are not outweighed by mitigating factors listed in § 13-703[G], the resulting sentence is death”). See also Walton, 497 U.S. at 687 (Blackmun, J., dissenting) (stating that “[t]he Arizona Supreme Court repeatedly has indicated that a defendant’s mitigating evidence will be deemed 'sufficiently substantial to call for leniency’ only if the mitigating factors ‘outweigh’ those in aggravation”). Further, one of the issues in Walton was the same equipoise question faced in Kleypas and now in this case, the validity of the weighing equation under the Eighth Amendment. See Walton, 497 U.S. at 651-52. In order to understand the Court’s holding on the issue, it is important to note that Walton reached the Supreme Court in part as the result of a split between the Arizona Supreme Court and the Ninth Circuit Court of Appeals on the equipoise issue. In Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc), the Ninth Circuit Court of Appeals held that the Arizona death penalty scheme was unconstitutional for the same reason the majority opinion in this case holds the Kansas statute K.S.A. 21-4624(e) unconstitutional: “While the statute does require balancing, it nonetheless deprives the sentencer of the discretion mandated by the Constitution’s individualized sentencing requirement. This is because in situations where the mitigating and aggravating circumstances are in balance, or, where the mitigating circumstances give the court reservation but still fall below the weight of the aggravating circumstances, the statute bars the court from imposing a sentence less than death. Thus, the presumption can preclude individualized sentencing as it can operate to mandate a death sentence, and we note that ‘[presumptions in the context of criminal proceedings have traditionally been viewed as constitutionally suspect.’ ” 865 F.2d at 1043-44. (Emphasis added.) This ruling, however, conflicted with the decision of the Arizona Supreme Court which summarily upheld the constitutionality of the Arizona death penalty scheme in State v. Walton, 159 Ariz. 571, 584-85, 769 P.2d 1017 (1989). In order to resolve this split between the two cases, the United States Supreme Court granted certiorari in Walton. See Walton, 497 U.S. at 647 (“Because the United States Court of Appeals for the Ninth Circuit has held the Arizona death penalty statute to be unconstitutional for the reasons submitted by Walton in this case, see Adamson v. Ricketts [citation omitted], we granted certiorari ... to resolve the conflict and to settle issues that are of importance generally in the administration of the death penalty.”). The Supreme Court of the United States addressed Walton’s argument that because the Arizona statute provided that the court must impose the death penalty if one or more aggravating circumstances are found and tire mitigating circumstances are insufficient to call for leniency, this created an unconstitutional presumption that death was the proper sentence. 497 U.S. at 651-52. The Court rejected this contention, stating: “Our recent decisions in Blystone v. Pennsylvania [citation omitted] and Boyde v. California [citation omitted] foreclose this submission. Blystone rejected a challenge to a jury instruction based on a Pennsylvania statute requiring the imposition of the death penalty if aggravating circumstances were found to exist but no mitigating circumstances were present. We pointed out that ‘[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence,’ [citation omitted] and concluded that because the Pennsylvania statute did not preclude the sentencer from considering any type of mitigating evidence, [citation omitted] it was consonant with that principle. In addition, the Court concluded that the statute was not ‘impermissibly “mandatory” as that term was understood’ in Woodson v. North Carolina [citation omitted] and Roberts v. Louisiana [citation omitted] because it did not automat ically impose death upon conviction for certain types of murder. [Citation omitted.] The same is true of the Arizona statute. “Similarly, Boyde v. California, supra, upheld a pattern jury instruction which stated that ‘[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.’ [Citation omitted]. The Court specifically noted that ‘there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” [Citation omitted.] “Walton’s arguments in this case are no more persuasive than those made in Blystone and Boyde.” (Emphasis added.) 497 U.S. at 651-52. Justices Blackmun, Brennan, Marshall, and Stevens dissented from this holding, arguing that the fact that the Arizona statute required death if the aggravating and mitigating circumstances were in equipoise violated the Eighth Amendment. See 497 U.S. at 687 (Blackmun, J., dissenting). The dissenting opinion in Walton is the reason the majority in this case holds K.S.A. 21-4624(e) unconstitutional. Walton, however, rejected the equipoise argument, holding just the opposite of the majority opinion in this case. Walton not only reaffirmed the holdings in Blystone and Boyde that it is not a violation of the Eighth Amendment to mandate death upon certain findings, such as that the aggravating factors outweigh the mitigating factors, but also extended that rationale to a weighing equation such as that used in Arizona which mandated death unless the mitigating factors were sufficiently substantial to call for leniency, that is, unless aggravating factors were not outweighed by the mitigating circumstances. It is clear to me that the United States Supreme Court’s opinion in Walton answered the equipoise question. The Ninth Circuit certainly thought it did. In Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir. 1992), it recognized that Walton overturned its decision in Adamson v. Ricketts regarding the constitutionality of the Arizona death penalty. The Idaho Supreme Court also thought so. In State v. Hoffman, 123 Idaho 638, 646-47, 851 P.2d 934 (1993), the Idaho Supreme Court found that under State v. Walton, its statute which required a defendant to prove mitigating circumstances which outweighed aggravating circumstances was constitutional. The Illinois Supreme Court, in a decision which actually predated Walton, cited Blystone for this same proposition. See People v. Thomas, 137 Ill. 2d 500, 542, 561 N.E.2d 57 (1990). Cases decided by the United States Supreme Court since Bly-stone, Boyde, and Walton have continued with the theme established in those cases. In Harris v. Alabama, 513 U.S. 504, 512, 130 L. Ed. 2d 1004, 115 S. Ct. 1031 (1995), the Supreme Court, in finding that Alabama’s death penalty scheme was not unconstitutional even though it did not give the judge guidance in determining whether to accept the juiy’s advisory verdict, reiterated: “We have rejected the notion that ‘a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.’ ” Similarly, in Buchanan v. Angelone, 522 U.S. 269, 276, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998), the Court stated: “In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. [Citations omitted.] However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. [Citations omitted.] Our consistent concern has been that restrictions on the juiy’s sentencing determination not preclude the juiy from being able to give effect to mitigating evidence. “But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.” (Emphasis added.) Given the United States Supreme Court’s continued insistence that the Constitution does not require a specific method for balancing aggravating and mitigating circumstances, and its specific approval of Arizona’s weighing equation which is identical in practice to that in K.S.A. 21-4624(e), I find it difficult to understand how the majority comes to its conclusion that K.S.A. 21-4624(e) is unconstitutional on its face. Certainly, the conclusion cannot come from the cases which have addressed the subject. The few cases from other jurisdictions which might lend support the majority’s conclusion are entirely unpersuasive. Besides our opinion in Kleypas, a weighing equation such as the one used in K.S.A. 21-4624(ej has been declared unconstitutional in only four cases: the aforementioned Ninth Circuit opinion in Adamson v. Ricketts, 865 F.2d 1011; Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993); People v. Young, 814 P.2d 834 (Colo. 1991); and State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987). The circumstances of each of these cases, however, give them little weight. First, Adamson, as the Ninth Circuit Court recognized, was abrogated by the Supreme Court’s opinion in Walton v. Arizona. See Adamson v. Lewis, 955 F.2d at 619. This abrogation also causes problems for Hulsey v. Sargent, in that the federal district court in that case relied entirely on Adamson v. Ricketts for its decision and did not even mention the effect of Walton. See 868 F. Supp. at 1103. It is highly questionable whether the decision in Hulsey would have survived review by the Eighth Circuit Court of Appeals, given its express reliance on Adamson v. Ricketts and the Ninth Circuit’s determination that Adamson v. Ricketts was abrogated by Walton. The State’s appeal in Hulsey, however, was dismissed by the Eighth Circuit because the State failed to timely file its notice of appeal. See Hulsey v. Sargent, 15 F.3d 115, 118-19 (8th Cir. 1994). Nor are the two state cases, Biegenwald and Young, persuasive. Biegenwald was decided in 1987, before Blystone, Boyde, and Walton. The New Jersey Supreme Court in Biegenwald found that “fundamental fairness” required that the defendant get the benefit of the doubt where the “explanations for his misconduct were equally as significant as the culpable aspects of that misconduct.” See 106 N.J. at 62. However, this argument for fundamental fairness was not keyed to the United States Constitution but rather to New Jersey’s “traditional concern for the rights of defendants charged with capital offenses” and the legislative history of the adoption of the weighing equation which suggested that the New Jersey legislature had actually meant to adopt a different equation requiring the aggravating factors to outweigh the mitigating factors. See 106 N.J. at 59-60. Similarly, in Young the Colorado Supreme Court determined that a weighing equation which mandated death when the aggravating and mitigating factors were in equipoise would violate the requirement that a death penalty scheme would be rational and reliable. See 814 P.2d at 845. In reaching this conclusion, the court distinguished the holding in Walton by clearly misinterpreting the Arizona weighing equation, stating that under the Arizona weighing equation, “[t]he sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors ... or, stated alternatively, are sufficient to call for leniency.” 814 P.2d at 846. As noted above, the Arizona weighing equation is in reality, the opposite. See Walton, 497 U.S. at 687 (Blackmun, J., dissenting); State v. Gretzler, 135 Ariz. at 53-55. This misconstruction allowed the Young court to lump Walton’s approval of the Arizona weighing equation in with the Supreme Court’s approval of the weighing equations in Blystone and Boyde to conclude that Walton did not address the equipoise question. See 814 P.2d at 846. In the end, however, the Young court appeared unsure of its construction of the United States Constitution and instead held that even if its determination that the weighing equation violated the United States Constitution was incorrect, the weighing equation would violate the Colorado Constitution. 814 P.2d at 845-46. This, then, is the sum total of authority for the proposition that a weighing equation which mandates death when aggravating and mitigating factors are in equipoise violates the Eighth Amendment: A Ninth Circuit case which the Ninth Circuit has recognized as having been abrogated by the United States Supreme Court; a federal district court case based entirely on that Ninth Circuit Court case; a New Jersey state case which predates any United States Supreme Court discussion of the issue and which is primarily based not on the United States Constitution but instead on New Jersey’s “traditional concern for the rights of defendants charged with capital offenses,” and a Colorado state case based primarily on the Colorado state constitution. This authority pales in comparison to that of a decision of the United States Supreme Court expressly authorizing such a weighing equation, see Walton v. Arizona, 497 U.S. 639, and the repeated assertions of the United States Supreme Court that no specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. Buchanan v. Angelone, 522 U.S. 269, 276, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998). See Walton, 497 U.S. at 651-52; Boyde v. California, 494 U.S. at 377; Blystone v. Pennsylvania, 494 U.S. at 309. There seems to be a general feeling among the majority that the weighing equation which mandates death in the highly unlikely event that the juiy finds the aggravating and mitigating circumstances to be exactly equal in weight is somehow “unfair.” While it is certainly within the province of this court to interpret the Eighth Amendment, we cannot do so in a vacuum. We cannot simply rely on our own inchoate feelings, but instead have a duty to examine, analyze, and apply the United States Supreme Court’s jurisprudence on the matter. This is especially true in cases such as the one before us where the majority of the court holds that a statute enacted by the legislature violates the Constitution on its face and is, therefore, invalid. We have held: “The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. . . . Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.” State v. Groschang, 272 Kan. 652, 668, 36 P.3d 231 (2001). This is not to say that we should not strike down statutes which clearly infringe on the Constitution. However, when a court takes such a step it is imperative that a clearly articulated reason be given and that it be explained how that reason fits into the United States Supreme Court’s jurisprudence on the issue. The cases examined compel the opposite conclusion from the majority’s decision. It is ironic that the majority appears more than ready to adopt my dissenting opinion in Kleypas on the question of whether the statute could be saved if it did in fact violate the Constitution. That part of the dissent was written in an unsuccessful effort to compel the Kleypas majority to squarely address the question of the statute’s constitutionality and to articulate its reasoning as to why K.S.A. 21-4624(e) violates the Constitution. It is unfortunate that the majority rushes to give me perhaps too much credit for my dissenting opinion that the statute, if unconstitutional, is unconstitutional on its face, but completely disregards the overriding theme of my dissent, which is that the statute is not unconstitutional at all. See Kleypas, 272 Kan. at 1124 (Davis, J., dissenting). I respectfully dissent from the majority opinion because I conclude that K.S.A. 21-4624(e), as passed by the Kansas Legislature in 1994, was and is today constitutional under the Eighth Amendment to the United States Constitution.

The opinion of the court was delivered by Smith, J.: This was an action by parents to recover for the death of their son, who was killed in a collision between the car he was driving and the defendants’ truck. Judgment was for plaintiffs. Defendants appeal. The plaintiffs are the father and mother of Stanley Thomas. He would have been twenty-one years old on August 26, 1938. He was killed in the collision out of which this action arose on July 26, 1938. The defendant Meyer was in the commission business in Hutchinson, and in that business used a 1935 model Ford V-8 truck. This truck weighed 5,200 pounds, bed and all, and was seventeen feet long and seven and one-half feet wide. Defendant George Y. Keen, Meyer’s employee, was driving the truck at the time of the collision. Meyer was asleep in the hammock with which the truck was equipped. Stanley Thomas was driving a 1935 Ford de luxe four-door sedan. The collision occurred on highway 81, a north- and-south road, between eight and nine miles north of Wellington. The highway at that point is practically level, with an eighteen-foot slab, and dirt shoulder of about ten feet in width on each side. The time of the collision was about 2:10 in the morning. The Meyer truck was going north so that it belonged on the east half of the slab. The Thomas car was going south so that it belonged on the west side of the slab. Meyer was asleep at the time of the collision. Thomas never regained consciousness. There were no impartial witnesses. The evidence as to' where the collision occurred- was largely circumstantial. The petition charged the defendants with several acts of negligence. The charge with which we are mainly interested is the following: “In driving the said truck across the center line of said highway and colliding with the said automobile of the said Stanley Thomas on the latter’s own or west side of the said highway. “In driving the said truck on the wrong side of center line of the said highway.” In the answer of defendants they denied any negligence and alleged that Thomas was guilty of negligence because he drove his car on the east side of the road. In answer to special questions, the juiy found that the point of impact of the two vehicles was about the center of the west side of the slab — this finding put the truck on the left-hand side of the road — that Thomas was not guilty of any negligence, and plaintiffs were guilty of the negligence of driving the truck on the wrong side of the highway. The jury also found that the defendant’s truck left the west edge of the concrete slab forty-nine steps south of the Thomas car and continued north seventeen steps before returning to the pavement. The left tracks on the east side of the highway, about even with the Thomas car, continued in a northeast direction off the pavement and continued north for several yards or paces, thence in a northwest direction to the west side of the road. The defendants filed motions to strike out these and answers to other questions, for judgment on the answers to special questions, and for a new trial. All these motions were overruled and judgment was entered for the amount found by the jury. Hence this appeal. The first point argued by the defendants is that the trial court erred in the admission of evidence. It will be noted from an examination of the special finding just set out that there must have been evidence in the record from which the jury received the idea of the route traveled by the truck just before the collision. This testimony was that of the sheriff of Sumner county. It is this testimony which defendants contend it was error on the part of the trial court to admit. This witness testified that he arrived at the scene of the collision shortly before three o’clock. He testified as follows: “I examined the tires on the truck. The tracks that went off next to the Thomas car and the ones that went off the slab on the northeast were the same as the ones on the truck. “A. From where the truck left the pavement on the west side — after coming back on the pavement it traveled diagonal northeast for a distance of forty steps, leaving the pavement and traveled off the pavement on the east side, the two outside wheels, for a distance of thirty-eight steps. “Q. Then where did it go? A. It seemed to swing back on the pavement sharply and swung to the left for a distance of thirty-eight steps and turned almost completely around on its left side. “Q. You spoke of the tracks south of the Thomas car — how far south of the Thomas car were those tracks? A. How far south of the Thomas car? “Q. Yes. A. Forty-nine steps from where the Thomas car came to rest. “Q. Which tracks showed where they left the pavement? A. The tracks made by the dual wheels on the truck. “Q. Which truck? A. The one in this lawsuit. “Mr. Siefkin: Object to that and move to strike it out as a conclusion. . . “To the best of m,y knowledge, the tracks I observed south of the Thomas car checked identically with the tread of the tires on the Meyer’s truck. The tracks left the pavement forty-nine steps south of the Thomas car, traveled along the west edge of the pavement for seventeen steps to the north, came back on the pavement and traveled diagonally northeast for forty steps, then traveled along the east edge of the pavement for thirty-eight steps, came back on the pavement and traveled diagonally to the northwest and completed the movement by making a turn to the right and going over on the left side.” It will be noted that the jury evidently believed this testimony because they followed it in returning the finding set out above. Of course, if the truck was off the west side of the slab forty-nine steps before it hit the Thomas car, then the jury was warranted in finding that it was on the left-hand side of the slab when the collision occurred. The defendants argue that this testimony was incompetent because it was an opinion on the ultimate fact to be decided by the jury, and ignored the physical facts, and the witness would not or could not state the facts upon which the opinion was based. Defendants quote from 9 Blashfield Cyclopedia of Automobile Law, page 582, as follows: “But, if the witness saw the wrecked machine and observed the tracks leading up to it, he could easily and reliably trace the tracks backward along the road and determine, as a fact, from his personal observation, the exact point where the skidding commenced.” The paragraph following this is as follows: “Where a witness has given special attention to tracking automobiles by the marks of their tires, the admission of his opinion as to the identity of an automobile which he tracked is not error, although the subject matter of his testimony is an ordinary one, not calling for the knowledge of an expert.” The above statement is supported by the holding in Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834. In that case the court held, in substance, that a witness who has testified that on arriving at the scene of an automobile collision which had happened shortly before, but which he did not see, he observed tracks leading up to a wrecked truck, may properly be asked whether in his opinion the tracks observed by him on the right-hand side of the road were made by that truck. (See, also, the annotation on the subject at 92 A. L. R. 475; also, Bierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1.) We have concluded that the rule announced above is the one which is in point in this case. Defendants make a vigorous argument that the witness ignored or refused to consider physical facts surrounding these tracks and the scene of the collision. These physical facts about which the witness was interrogated, and concerning which other witnesses were permitted to testify, go to the weight to be given the testimony rather than to its admissibility. The jury evidently believed the witness. These physical facts do not require us to say that the testimony of the sheriff should not have been given to the jury. What has been said here disposes of the argument of the defendants on the admissibility of the testimony of other witnesses. There was other evidence that might have had a great deal of weight with the jury on the question of which vehicle was on the wrong side of the road. The sheriff testified that when he first arrived the driver of the truck told him he went off the pavement on the west side. Defendant points out apparent discrepancies in the testimony of the sheriff as to when the driver told him that. These discrepancies appear to be more apparent than real. At any rate, they only go to the weight of the evidence rather than to its admissibility. There was other testimony of two witnesses that the truck driver stated, when asked what happened, “I don’t know.” There was ample evidence to support the verdict in this case. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Harvey, J.: Appellant was charged under G. S. 1935, 21-584, with willfully setting fire to and burning insured property with the intent to injure and defraud the insurer. Upon a trial he was found guilty and sentenced. He has appealed and contends the trial court erred: (1) In overruling his motion to quash the information; (2) in overruling his motion to be discharged, or for an instructed verdict, on the ground that the evidence was insufficient to sustain a conviction; (3) in refusing to give a requested instruction; (4) in a ruling on admission of evidence, and (5) in overruling his motion for a new trial. The information was in three counts. Defendant’s wife also was charged in a separate information in one count. They were being tried together. The written motion to quash was for the reason “that said informations each fail to charge a public offense under the laws of the state of Kansas.” The court sustained this motion as to the second count of the information against appellant and overruled it as to the first and third counts, and also overruled it as to the information filed against the wife of appellant. At the close of the state’s evidence defendant moved that the state be required to elect as to whether it would ask for a conviction of appellant on the first or on the third count of the information against him. The court sustained the motion and the state elected to proceed with the trial on- the first count only, and the third count was dismissed. The court also sustained a motion to dismiss as to the wife of appellant. The case then proceeded to trial against appellant upon the first count of the information against him. Appellant now argues that the first count of the information does not charge the offense as “direct and certain as regards the party and the offense charged,” as is required by G. S. 1935, 62-1004 and 62-1005. This question was not raised in the trial court, hence it is not available to appellant here. (State v. Hancock, 127 Kan. 510, 274 Pac. 209; State v. Cross, 144 Kan. 368, 59 P. 2d 35.) Here the information is direct as to the person charged. It may be open to the criticism that it is not as direct as it might have been as to the offense charged. Had that question been raised on the motion to quash, it could have been corrected readily. Apparently appellant then thought the charge was sufficiently direct. There is no suggestion now that he was in any way hampered in his defense by the lack of a more direct charge. Had the question been specifically and directly raised, there is authority to the effect that the information was not so defective in this particular as to be in violation of the statute. (State v. Hewes, 60 Kan. 765, 57 Pac. 959; State v. Justus, 86 Kan. 848, 122 Pac. 877; State v. Hutzel, 108 Kan. 456, 195 Pac. 887; State v. Sanders, 127 Kan. 481, 274 Pac. 223; 31 C. J. 764, 771.) The first count of the information was substantially in the language of the statute. Ordinarily that is sufficient. (State v. Wahl, 118 Kan. 771, 772, 236 Pac. 652.) If there was any defect in this regard it was one that did not affect the substantial rights of appellant, and by statute (G. S. 1935, 62-1718) this court must give judgment without regard to it. The evidence tending to support the verdict may be summarized as follows: For several years prior to the date of the fire in question appellant and his wife lived in a one-story cottage in Elkhart, the title of the property being in the name of the wife. The reasonable market value of the property at the time of the fire was $500 and of the contents about $600. There were unpaid taxes on the property since 1930, aggregating $419.41. About a month earlier appellant stated to one of his neighbors that he would like to get as large a loan on the property as he could and let the mortgage company take it. On January 15, 1938, appellant took out a new insurance policy for $1,500 on the residence and $1,500 on the contents, which previously had been insured for $1,000. On February 2, 1938, about 11 o’clock a. m., fire was discovered burning from the inside through the walls of the house, and the fire department was called. The chief of the fire department, the sheriff and others entered the building. The house contained a bedroom, living room, breakfast room, kitchen and basement. In the bedroom all the furniture had been pulled from against the walls, doors opened, bedding removed from the bed and placed on the floor, which extended into the living room, and from there one line of bedding and clothing led to the far corner of the living room. Another chain of bedding and clothing led through the breakfast room and the kitchen and down the stairway to the basement. From over the stairway leading to the basement was hanging a blanket connected with the other chain of clothing. In the living room an upholstered wicker set was piled together in the center of the room and connected with the clothing on the floor. All the bed clothing, rugs and furniture had been soaked with some inflammable substance believed to have been kerosene and crank case drainings. In the kitchen on the top of the worktable was a partially burned candle, originally twelve inches in length. On the kitchen cabinet was an old cap, a ball of twine and a dish towel leading from the candle to the window curtain. The fire had burned a large hole in the floor of the bedroom, extended into the closet, and burned clothing, books and magazines which had been dumped from the shelves to the floor, and had burned a hole through the closet wall to the outside of the building, where the fire was discovered. In the basement a separate fire was discovered in a feather mattress. A wick made of clothing and bedding extended from the bed in the basement to near the burned hole in the bedroom floor. In the basement were two trunks containing paper, boxes, clothing, dresses. These were open, tipped over, and the contents had the oil substance poured on them. In the bedroom and closet the fire had burned through the ceiling into the attic. The outside doors of the house were locked. All of the outside openings of the house had been taped to keep out drafts and dust, except the two doors. In the trial of the case it was admitted by the defense that the fire was of incendiary origin. The state’s evidence disclosed that defendant was last seen at the residence at 1:30 p. m., January 29. He had told the sheriff that he and his wife left Elkhart that afternoon and drove to Stafford that night. There was no further direct testimony as to defendant’s whereabouts until after the fire. The state made no effort to show that he was at the house in question from January 29 to February 2. The defense offered no alibi, hence the question of his whereabouts during this time was not in issue. At several places about the house was evidence of a burned candle, and in the basement was a carton which had contained twelve candles one inch in diameter and twelve inches long. The testimony was that it would take a candle of that size and texture from six to twelve hours to burn down, but if two or more of them had been fastened together, as it is possible they were, that time would be multiplied by the number of candles. There was much evidence that the fire had burned slowly, because books, papers and clothing smoulder and burn for a long time unless there is plenty of fresh air. There was evidence that there had been intense heat in the rooms. The window curtains would crumble when touched, and the varnish on the woodwork and furniture had the appearance of an intense heat. A jar was found in the house which contained oil. One fire had been started by a candle in an ash tray at the end of a blanket in the living room. There was an outbuilding used as a barn in which was found a ten-gallon kerosene can containing about seven gallons of kerosene and gasoline. It appeared to have been tipped over and poured from. There were tracks near it which defendant admitted were his. There were no other tracks in the building. A few days prior to the fire defendant had visited the fire department and made inquiry of the condition of the fire equipment, and learned that the siren was out of use. Appellant had had three previous fires at Elkhart, one at his dairy barn and two at his laundry. At the latest of these the laundry was completely destroyed and appellant collected insurance. The laundry building was constructed of sheet-iron roofing and sides, cement floor, and the only lumber was studding and rafters. That fire had spread rapidly. It had extended throughout the building by the time the fire department arrived. Shortly before that appellant had solicited a former employee of the laundry to burn the laundry, stating it was insured and that it was worth more burned down than standing. He showed the former employee two five-gallon cans of kerosene and suggested that it be started at night; that appellant would be out of town and the employee could get away. He was unemployed at that time and appellant promised to get him a job in Kansas City. The former employee refused, and appellant then asked him to say nothing about it, not even to his wife. Soon after that fire the former employee met appellant, who seemed to be pleased with the situation. After the fire at his residence, discovered February 2, 1938, de fendant met Henry Wagner, whom he knew, and tried to get Wagner to finish burning the building, and offered Wagner $100 to do that, and stated that he, appellant, could get out of the trouble if the building were burned completely down. Appellant had been arrested, charged with the burning of the building, prior to that time. There is evidence tending to show that he made a somewhat similar proposition to another person, which was refused, and that he later took Wagner to an attorney he had employed in Oklahoma in an effort to have Wagner make some statement in writing favorable to appellant. No evidence was offered on behalf of defendant. We think the evidence sufficient to go to the jury and sufficient to sustain the conviction. Appellant argues about the long time which elapsed between 1:30 p. m., January 29, and 11 o’clock a. m., February 2, and points to the testimony that the candles, under normal conditions, would burn only from six to twelve hours. No doubt this argument was made to the jury. It overlooks the fact that the material first fired, by the candles normally would burn slowly, and in a small residence, which was sealed almost tight from outside air, the burning would be much slower than under normal conditions. The information charged the date of the offense to be “on or about the 29th day of January, 1938.” Because of that, defendant requested an instruction to the effect that the term used in the information “refers solely to a date on or prior to the 29th day of January, 1938, and that no acts on the part of said defendant occurring subsequent to the 29th day of January are to be considered by you in arriving at your verdict.” The court very properly declined to give such an instruction. Appellant complains of a question asked of a witness called as an expert on the length of time it would take the candles to burn and the fire to progress to the condition in which it was found on the morning of February 2, and the answer of the witness to the question, as follows: “It would be indefinitely. There is a possibility of a fire smouldering a week, or two weeks.” We see nothing wrong either with the question or the answer. Upon the hearing of the motion for a new trial several affidavits were offered in appellant’s behalf. We have examined these carefully and find nothing in them which required, or would have justified, the granting of a new trial. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Allen, J.: On March 8,1937, the defendant, Cecil Frame, pleaded guilty to the charge of being an accessory after the fact of the commission of a felony. Upon application a parole was granted and sentence was deferred. Thereafter defendant reported to the court at each regular term until the regular 1939 March term. On the 27th day of March the court, being informed the defendant had violated his parole by committing petit larceny, revoked the parole and ordered the defendant be held for sentence on the next motion day, April 5, 1939. By agreement the cause was continued until April 7, 1939. On that date defendant, by his attorney, made an application for a second parole, which application was denied. The court found the defendant guilty, “as charged in the information, of being an accessory after the fact of the commission of a felony,” and thereupon sentenced him to the state prison. The appeal is from this judgment. Defendant contends the parole granted on March 8, 1937, was for a term of two years, and the court could not, after the expiration of the parole, revoke the parole and hold the defendant for sentence. It was urged that as the judgment and sentence was not entered until after the expiration of the two-year time specified in the parole, defendant was entitled to a discharge by operation of law. These contentions call for an examination of the proceedings of the court on April 7,1939. The record shows: “The Court: The order of parole filed in this case on the 9th day of March, 1937, purports to limit the parole to two years. In granting this parole the court did not make such an order, and when signing said order overlooked the fact that it so provided; that said order, so far as it limits the parole to two years, is erroneous and should be, and hereby is, corrected, by striking therefrom said limitation of two years.” Counsel for defendant then stated: “Defendant objects to any change in the order, upon the ground and for the reason that under the provisions of section 62-2209, Revised [General] Statutes for 1935, he feels that he is entitled to a discharge because of the expiration of more than two years and the passing of the term of court after the expiration of the two-year period.” From this recital it appears that at the hearing on April 7, 1939, when the correction of the record was under consideration the defendant was represented by counsel. It was contended by counsel that defendant was entitled to a discharge because the two-year term as provided in the parole had expired. But it does not appear that counsel disputed the accuracy or expressed any doubt as to the truthfulness of the statement by the court that in granting the parole the court did not make an order limiting the period of the parole to two years, and that in signing the order it overlooked the fact that the two-year period was included. We must therefore conclude that the order made by the court was in truth and in fact to make the record speak the truth. Did the court have the power to make the order striking the two-year provision from the parole? If so, the court had the right to revoke the parole and enter sentence on the original plea of guilty. In Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, this court said: “A district court has the power to correct the entry of a judgment so as to cause it to speak the truth after the expiration of the term at which it was rendered, and upon the personal knowledge of the judge of what took place in the court at the time of its rendition.” (Syl. If 1.) In State v. Linderholm, 90 Kan. 489, 492, 135 Pac. 564, it was stated: “The duty of the clerk is to make a true record of the order or judgment of the court. If for any reason the record fail to speak the truth, the court at any time may make an order correcting the same. This has been often decided. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; Chemical Co. v. Morrison, 76 Kan. 799, 803, 92 Pac. 1114; Calhoun v. Anderson, 78 Kan. 746, 747, 98 Pac. 274; In re Hornung, 81 Kan. 180, 184, 105 Pac. 23; Plummer v. Ash, 90 Kan. 40, 133 Pac. 157.)” See, also, Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479; Overlander v. Overlander, 126 Kan. 429, 268 Pac. 828; Morton v. Morton, 149 Kan. 77, 86 P. 2d 480. For a discussion of the power of a court to enter an order nunc pro tunc in a criminal case, see In re Wright, Petitioner, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865. A judgment is the final determination of the rights of the parties in an action. (G. S. 1935, 60-3101.) The judgment is the decision of the court. It may or may not be correctly spread of record in the journal entry. A judgment itself is beyond the power of the court to amend or correct after the expiration of the term of court at which it is rendered. See Gaston v. Collins, 146 Kan. 449, 72 P. 2d 84, and cases cited at page 455. It was there stated that . . it is clear that the probate court had no authority to alter the record after the term so as to make it recite a different judgment from the one it actually did pronounce theretofore.” If, however, the journal entry does not correctly show the judgment as rendered by the court — that is, if by clerical error or inadvertence the record does not speak the truth — then the court may, by nunc pro tunc order, correct the same. Such correction may be made after the expiration of the term at which the judgment was rendered. (Christisen v. Bartlett, supra; Victory Life Ins. Co. v. Freeman, 145 Kan. 296, 65 P. 2d 559.) The defendant was charged with the crime of being an accessory after the fact of the commission of a felony. Under our statute, G. S. 1935, 21-106, the crime of being an accessory after the fact in such cases is punishable by confinement and hard labor in the penitentiary. Under section 62-104, a felony is an offense punishable by death or confinement and hard labor in the penitentiary. Our statute, G. S. 1935, 62-2203, gives the court power to parole a person convicted of the commission of certain felonies. Section 62-2205 specifies the terms and conditions of the bond to be given when the accused is paroled under section 62-2203. Section 62-2209 provides: “No person paroled under the provisions of section 2 (62-2202) of this act shall be granted an absolute discharge at an earlier period than six months after the date of his parole, nor shall such parole be continued for a longer period than two years from date of parole; but if he shall have been the second time paroled, the time shall be counted from the date of the second parole. No person paroled under the provision of section 5 (62-2205) of this act shall be granted an absolute discharge at an'earlier period than two years from the date of his parole, nor shall such parole continue for a longer period than ten yearn: Provided, That if no absolute discharge shall be granted nor the parole terminated within the time in this section limited, it shall be the duty of the court, at the first regular term after the expiration of such time, to either grant an absolute discharge, or terminate the parole and order the judgment of sentence to be complied with, but if the court shall fail to take any action at such time, such failure to act shall operate as a discharge of the person paroled.” Under this section the parole period could not continue longer than ten years, but could be terminated before the expiration of the ten-year term limited in the statute. Under section 62-2214 the action of the court in terminating such parole is not subject to review by this court. Under the nunc pro tunc order of April 7,1939, the original judgment was corrected to eliminate the two-year period erroneously written therein.- In the absence of a specified term in the order of parole, the duration of the parole was fixed by the statute. The court had the power to terminate the parole within the ten-year limitation. This was done. Accordingly, the judgment must be affirmed. It is so ordered.

The opinion of the court was delivered by Thiele, J.: The plaintiff, an employee of the defendant city, brought an action to recover damages for injuries sustained during the course of his employment. The trial court sustained a demurrer to his evidence and rendered judgment for defendant, and the plaintiff appeals. The gist of the allegations of plaintiff’s petition was that he was a common laborer employed by the city for many years and engaged for a considerable time as a cement finisher; that on April 13, 1937, he was working under a foreman who in turn 3vas under the city engineer; that plaintiff was directed to take certain chisels and a hammer and make a cut in a concrete pavement in order that the cut might be filled with asphalt for an expansion joint; that this kind of work was not within his general experience; that he was not informed but proceeded under instructions given him; that he had not worked long until particles chipped from the concrete flew into his right eye; that the city failed to furnish him with proper safeguards in that it failed to furnish him with glasses to protect his eyes from the flying particles; that it 3vas a common practice and was usual and common for workers in such work to be furnished glasses, but that plaintiff did not know that glasses were necessary, etc.; that as a result of the particle in his right eye he lost the sight thereof and that such loss was occasioned by the negligence of the city in failing to furnish him with glasses when sending him to do the work. Briefly stated, the city’s defense was that plaintiff had been directed to use glasses to protect his eyes in doing the work; that he had proceeded to work without getting the glasses; that he had assumed the-risks of his employment; that he had not had his injured eye properly treated if he did have concrete chips or dust therein, and that if plaintiff did lose his eye from some cause it had not incapacitated him as a cement finisher, as he had been steadily employed since a short time following his accident. The answer also denied negligence on the part of the city, and alleged the petition did not state a cause of action against the city. At the conclusion of the introduction of plaintiff’s evidence the defendant demurred on the ground no cause of action had been proved, and on the further ground that it showed plaintiff had assumed the risks of his employment. In considering appellant’s contention that the trial court erred in sustaining the demurrer, we follow the rule often stated that the plaintiff’s evidence shall be considered as true, that unfavorable parts shall be disregarded, contradictions shall not be weighed, nor any differences between direct and cross-examination, and if there is any evidence which sustains plaintiff’s case, the demurrer must be overruled. (See Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923; Shoup v. First Nat’l Bank, 145 Kan. 971, 975, 67 P. 2d 569; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; and Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552.) For the purpose of clarity, we review the testimony so that statements per- taming to particular matters may be stated together, rather than in the order in which questions were asked and answered. Plaintiff was thirty-nine years of age, and from 1928 was employed as a cement finisher, whose duty it was to take care of and smooth concrete after it was poured. He knew how it was mixed, the varying proportions of sand and cement to be used for different purposes; that concrete continues to harden until it is about five years old and becomes brittle and hard, and that it is more difficult to chip and work with than ordinary stone. For a time he had a cement contractor’s license and completed six or seven jobs of sidewalks, driveway and approaches, where old concrete was removed by use of a sledge hammer, and that the blow of the hammer caused particles to fly. He had been employed by the city about nine months at the time of the accident. On the day of the accident plaintiff reported for duty at a designated place where the WPA foreman gave orders for the day. He told plaintiff to, go to a car and get a hammer and chisel and to cut concrete for an expansion joint in the street pavement by cutting on a length approximately one inch wide, to check the concrete and to take a chisel and cut it out; that plaintiff had never cut concrete of that kind before; that the foreman gave him no glasses or goggles, nor did plaintiff ask him for any; that his work before that had been finishing concrete before it set and became hard and there were no flying particles; that he had not performed any work breaking and cutting concrete prior to that time; that as directed he went to work. When he started work he faced into the wind, and he noticed the dust blew into his right eye, but he did not know when any particles hit his eye. Up to this time no one suggested the use of glasses or goggles. He did not feel any pain in his eye, but it irritated him. He went on with his work the next day and that evening his eye began hurting him and he went to his family doctor, who swabbed out the eye. The next morning he told the foreman his eye was hurting him and the foreman gave him some dark glasses which eased the pain and he went on working. The next day he did not work, as it was his day off. The following day his eye was hurting so he could not work and the foreman had him taken to another doctor, who proceeded to remove from his eye some particles that were there. Later the eye became infected and it was necessary to remove it. He was at home ten days and then went back to work, and on similar work he was furnished with glasses or goggles. The doctor who removed the eye stated his record showed that something had happened to plaintiff’s eye on April 12; that he saw plaintiff on the 16th and found a foreign body in the eye. The foreign substance was not examined — it was a rock formation of some kind. The journal entry of judgment does not indicate the particular reason why the trial court sustained the demurrer, whether because the evidence showed there w.as no liability of .the city to the plaintiff by reason of the nature of the employment, or because it showed the plaintiff assumed the risks of his employment, or for some other reason. From the allegations of the petition and from the evidence it is clear that plaintiff was an employee of the city and was seeking to recover damages for injuries sustained by him by reason of claimed negligence of the city in not furnishing him with a safe place to work or with proper and sufficient tools with which he could work safely. It is equally clear that the work in which he was engaged was repair or improvement of a street paving. That repair or improvement was the performance of a governmental function. It is the recognized rule in this state that in the absence of a statute imposing liability therefor, a city is not liable for the negligence of itself, its officers and employees, in.the performance of a governmental function. (See Foster v. Capital Gas and Electric Company, 125 Kan. 574, 265 Pac. 81, and also Wray v. City of Independence, this day decided, post, p. 258, and cases cited.) Although we recognize liability of a city to travelers injured by defects in the streets, we know of no statute, and none is cited in the briefs, which makes a city liable for negligence to one employed by it in maintaining its streets. Appellant, in his brief, however, argues the demurrer was sustained on the erroneous conclusion that plaintiff had assumed the risks of his employment. In this connection, much more stress is placed on a contention that there was failure to prove a contract of employment whereby plaintiff assumed the risks of his employment, rather than on the factual situation disclosed by the evidence. A brief review of the evidence shows that while plaintiff had not been engaged personally in cutting concrete with a hammer and chisel, he had for many years been engaged in concrete work, knew how concrete was made, that it became hard and brittle; that it was more difficult to chip than ordinary stone; he had broken it with a sledge hammer and observed particles would fly from the blow.' The plaintiff, familiar with the general situation, and using common tools, knew as much about the risks of his employment as did the WPA foreman under whose direction he was working. It seems unnecessary here to discuss at length the law applicable to such a situation — that the workman assumed the risk of his employment. Although much different states of fact were being considered, the reasoning of the following cases compels the above conclusion: Railway Co. v. Bancord, 66 Kan. 81, syl. ¶ 2, 71 Pac. 253; Walker v. Scott, 67 Kan. 814, 64 Kan. 615; Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720; Davis v. City of El Dorado, 126 Kan. 153, 267 Pac. 7. (See, also, the discussion in the recent case of Cheek v. Eyth, 149 Kan. 586, 89 P. 2d 11, where many of our decisions dealing with defective tools and assumption of risk are mentioned and discussed, and see Restatement, Agency, § 521.) Appellant contends, however, that the doctrine of assumption of risk is based on contract, express or implied, and that the evidence fails to disclose such a contract. That such is the law may be conceded. In Railway Co. v. Bancord, 66 Kan. 81, 88, 71 Pac. 253, it was said: “But, reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, or of the existence of which he is not chargeable with notice.” (p. 88.) (See, also, Manufacturing Co. v. Bloom, 76 Kan. 127, 131, 90 Pac. 821, and 7 C. J. S. 137.) We think, however, that the evidence does show that by reason of plaintiff's previous experience he did know that when concrete was struck by metal, chips of concrete would fly into the air; he said he knew that as a result of pounding concrete curbs with a sledge hammer. When he went to work at the particular place, he was furnished with common tools, a chisel and a hammer. As soon as he started work, dust and particles flew up and struck him in the face. He needed no foreman, superintendent or any other person to tell him that if a particle of the concrete rested in his eye it might cause him pain and injury. Notwithstanding that, he continued to work facing into the wind, with dust and particles flying back into his face, although there is no evidence anyone told him to work in that manner. Reasonable observation and caution for his own safety should have caused him to cease work in that particular manner, but he so continued all of the first day. It will not do to say he did not know dust and particles might fly into his eye for, as soon as he started work, they hit him in the face. We think the testimony was susceptible of no other interpretation than that plaintiff knew or by the exercise of ordinary caution should have known the risk involved, and by undertaking the work and continuing it he impliedly agreed with his employer to assume the risk. The trial court did not err in sustaining the demurrer to the plaintiff’s evidence, and its judgment in favor of defendant is affirmed.

The opinion of the court was delivered by Smith, J.: This was an action to recover damages for personal injuries. The case was submitted to a jury, which was discharged because it was unable to agree. The defendants appeal from an order overruling their demurrer to the evidence of plaintiff. The plaintiff in his petition, after setting out the residence of defendants, alleged that they were engaged in the business of operating an ice plant in Wichita; that on June 23, 1937, plaintiff was in the employ of a business house in Wichita as a collector and was put in charge of an account of an employee of defendant ice company and that plaintiff had been to the place of business of defendant many times. The petition further alleged that the approach to the office of defendants was gained by going up two or three steps to a concrete dock and entering through a door leading directly off the dock, and that the steps, dock and door were open to and used by the general public. The petition then contained the following allegations: “Fourth: That on the day in question the plaintiff mounted the steps and was about to enter the door when he was suddenly and violently struck, knocked down and received injuries. “Fifth: That immediately prior to the.time of the injuries, the defendant, Gilbert Burgerhoff, was having a controversy in the office of the company with one Elmer Braiser, who was either an employee or former employee of the defendant corporation. That plaintiff does not know the facts concerning the nature of the controversy between the defendant, Burgerhoff and the said Braiser, and was not concerned therein, but alleges that as a result of said altercation, the said defendant, Burgerhoff, acting individually and as the agent of the defendant corporation, as aforesaid, either struck, knocked, pushed, shoved, kicked or ran the said Elmer Braiser out of the door of the office of the corporation in such a sudden, violent and unexpected manner that the said Elmer Braiser was thrown or fell upon this plaintiff, causing the injuries and damage, as more fully set forth hereinafter. That said acts of the defendants, and each of them, were in reckless disregard of the consequences and in reckless disregard of the rights of the public and of the plaintiff'. ' “Sixth: Plaintiff further alleges that the defendant, acting as aforesaid, engaged in an unlawful altercation with the said Elmer Braiser, and that as a result of said unlawful altercation and an attempt to commit assault and battery, or in the commission of an assault and battery upon the person of Elmer Braiser, that the injury and damages to the plaintiff followed as a direct, natural and probable consequence of the wrongful acts of the defendants, and each of them, as aforesaid.” The answer of defendant Gilbert Burgerhoff was first a general denial, then a statement that he was the sole owner of the business. The answer further denied that William H. Phillips, the man from whom plaintiff was collecting, was an officer of the company; that Elmer Braiser was neither an employee nor agent of the company at the time set forth in the plaintiff’s petition, and denied that defendant “struck, kicked, rammed, shoved, pushed or knocked Braiser at any time set out in the plaintiff’s petition” or that he engaged in any unlawful altercation with Braiser. The answer further alleged that if plaintiff was injured it was due to his own negligence; that plaintiff at the time and place when he is alleged to have received his injury was a trespasser on the premises of defendant and that defendant had no knowledge of the presence of plaintiff at the time of his alleged injury, and at the time of the alleged injury of plaintiff he was not on his way to the office of defendant but was on his way to the warehouse of defendant and was not following the course of travel usually followed by defendant and was not on a mission for defendant but was solely on a mission for his own benefit. The reply was a general denial. At the close of the evidence of plaintiff, defendants demurred to it on the ground that it did not prove any cause of action against the defendants or any of them. This demurrer was overruled. Defendants then introduced their evidence. When the case was submitted to a jury it was unable to agree and was finally discharged. With such a record the only orders from which defendants could appeal was the order overruling their motion for judgment upon the pleadings and opening statement of counsel and the order overruling their demurrer to the evidence. Gilbert Burgerhoff does appeal. It should be noted at the outset that no motions were directed at this petition either asking that it be made definite and certain or that plaintiff be ordered to separately state and number his causes of action. It must be remembered also that— “In testing the sufficiency of evidence as against a demurrer, court will consider plaintiff’s evidence as true, disregard that unfavorable to plaintiff, and not weigh any part that is contradictory, or any differences between plaintiff’s direct and cross-examinations, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.” (Hurla v. Capper Publications, Inc., 149 Kan. 369, syl. ¶ 1, 87 P. 2d 552.) New fules are stated oftener than the above. Defendant Burgerhoff argues first that the court erred in overruling defendant’s motion for judgment upon the pleadings and opening statement of counsel and in overruling the demurrer of Burgerhoff to the evidence for the reason that the conduct of Burgerhoff was justified by the circumstances. We will consider first the argument on the motion for judgment on the pleadings and opening statement. The pleadings as far as is pertinent to this question have already been set out herein. As much of the opening statement as is brought to us follows: “The evidence will show that Mr. Burgerhoff started to go at one time after this man and he held his hand up and said ‘Wait until I get my money.’ They did pay him; put his money down on the counter by the doorway and he took the money and told Mr. Burgerhoff to come on outside and they would settle this matter. But this matter between Mr. Brasier and Mr. Burgerhoff, we were not there at the time this occurred. “The evidence will show that he backed up a little and Mr. Burgerhoff came up in front of him and they argued some moré; he backed up until about three feet from the door, still arguing with Mr. Burgerhoff and telling him to come outside and they would settle it. “Just at that moment our client, Mr. Montague, came up the steps to see Mr. Phillips and was standing at the open door; just walked up and arrived at the open door when Mr. Burgerhoff reached out and hit this man. I don’t know whether his fist was closed or open, but he shoved him violently so the man came out the door backwards towards Mr. Montague — so close that Mr. Montague didn’t have any time to get out of his way or anything else. He came backwards very fast and very violently down this one little step and ran directly into Mr. Montague, knocking him backwards because of the fracas he was having with Mr. Burgerhoff.” In his argument on this motion defendant points out the use of the words “reckless” and “wrongful” and “unlawful altercation” as describing the conduct of the defendant. He argues that the above words state only conclusions of law and raise no issue of fact. It is true that the words “reckless,” “wrongful” or “unlawful” standing alone do not state a cause of action. We are interested in the facts pleaded rather than the conclusion of the pleader as to what his facts mean. Shorn of the words pointed out by defendant, the petition states that as plaintiff was about to enter the place of business of defendant he was suddenly and violently struck down; that defendant was having a quarrel with Brasier and either struck, knocked, pushed, shoved, kicked or ran Brasier out of the door of the office in such a sudden, violent and unexpected manner that Brasier was thrown or fell upon plaintiff. The petition then states that these “acts were in reckless disregard of the consequences and in reckless disregard of the rights of the public and the plaintiff.” The statement just quoted is something more than a conclusion of law. It is in reality a further description of the acts of defendant set out immediately before the quoted statements. Our question is whether it is negligence for a proprietor of a building to knock a man down in such a violent and sudden manner as to injure a third party who is just entering the building on a lawful errand. The rule in such cases is as follows: "Even against a demurrer a petition is liberally construed and held sufficient if the facts stated, whether well pleaded or not, with all the reasonable inferences to be drawn therefrom, constitute a cause of action. . . . And where the petition is not attacked by motion or demurrer, a still more liberal rule of construction is adopted. ‘After answer filed, an objection to a petition that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law.’ (Laithe v. McDonald, 7 Kan. 254, 261.)” (Ball v. Oil & Gas Co., 113 Kan. 763, 766, 216 Pac. 422. See, also, Barner v. Lane, 126 Kan. 173, 267 Pac. 1003.) The same general statement may be made with reference to the allegations of the sixth paragraph of the petition, wherein the actions of defendant are described as an unlawful altercation. We shall next consider the argument of defendant that his demurrer to the evidence should have been sustained because his conduct was justified by the circumstances. In considering this argument we must notice the evidence. The plaintiff testified that he was a collector and had an account against a son of Phillips, who was a defendant to the action; that he had seen the father several times before and that the father had made the payments for his son; that on the day in question he walked up three or four concrete steps to what is spoken of in the evidence as,a loading dock almost on a level with the office of the defendant; that when he arrived upon the concrete dock the office door was just to the north and one turned to the right to go into the office; that there is an areaway about ten feet long and four or five feet wide; that there is a small step up from the dock to the office. He then testified, as follows: “Brasier came backward out and very fast and struck me terrifically just as I was going to go to the doorway. I could not get out of his way he came so fast. He was coming backward. I didn’t actually see any blow struck, it was done so quickly and this man’s back was towards me. When I saw him he was some three or four feet inside. The terrific force that struck me knocked me four or five feet. Afterwards, Mr. Burgerhoff and Mr. Phillips came out to the car, and— “They said they were sorry it happened and if they could do anything to give them a call, and Mr. Burgerhoff said he had trouble all day with that man and that he struck him and he was sorry he knocked him into me. “I walked up those four steps and was about a foot and a half or two feet from the office entrance. I saw three men and two were talking. “Q. There were three men there and as far as you could see at least two were engaged in the argument? A. They were engaged in talking; yes, sir. “Q. You started to go in? A. I started towards the entrance; yes, sir. “Q. How close did you get to the doorway before you noticed any motion on the part of any of these men? A. I didn’t have a chance to notice anything. Just as I got to the door Mr. Brasier came flying backwards and struck me. I had no chance to get out of the way or notice anything. “I would say I fell in about the middle or center of the platform. My whole body was just about the middle. I didn’t fall back at all — I was knocked. I was knocked off my feet and fell a few feet from the office entrance. “Q. And you said Mr. Burgerhoff said he struck this man? A. Yes, sir.” The next witness for the plaintiff testified that he worked for plaintiff’s employers and was called to the scene of the accident. He further testified as follows: “Well he (Mr. Burgerhoff) said this fellow, later I found out by the name of Brasier, had been in there and had worked for him and Mr. Burgerhoff owed him some money and he said T paid him and he was drinking and he claimed that I owed him more money than I gave him’ and he was saying things and calling Mr. Burgerhoff names he didn’t like, and he said T struck him and in so doing he fell back against Mr. Montague.’ ” Elmer Brasier testified that he had been working and had been discharged; that he had a row with Burgerhoff about how much should be paid; that he finally got his money and left and had a few more drinks. He further testified as follows: “After I got the money, I and Mr. Burgerhoff had some words all that time and I was telling him to come out on the dock where we could argue it out and he started out to the dock and I was backing up and I would stop and he would stop and when we got in a couple feet of the door — I don’t know just how close to the door I was — I was awful close to it — he gave me a shove. He didn’t strike me; he shoved me. “After I came back with the three cakes of ice and the receipts, I was paid off in cash. “Q. Were you paid in cash? A. Yes, sir. “Q. You were paid how much? A. Five dollars the first time and two and a half the second time. “Q. What do you mean the second time? A. I wouldn’t leave until I got the other two and a half. I had seven and a half coming for three days. “I cursed him fifteen or twenty minutes, or maybe thirty. Then I asked him to come out on the dock and we would settle the question. He was back of the cage at that time, and he came around into the hallway. “Q. And he started to come on out didn’t he, to put smu out, or tell you to get out? A. He started and he stopped and I kept haggling him on and again he stopped and the second time I stopped he caught up with me and gave me the shove.” There was considerable more testimony from this witness with reference to his drinking. We must now notice part of the testimony of the defendant when he took the stand in his own behalf. We do that pursuant to the rule laid down by this court in City of Garnett v. Dowis, 144 Kan. 484, 61 P. 2d 913. There this court held: ‘The record examined, and held 'that if evidence of the city failed to establish facts essential to prove the alleged violations of its pool-hall ordinance, defendant supplied the deficiency, and he was not prejudiced by the overruling of his demurrer to the city’s evidence.” (Syl. ¶ 1.) The defendant testified as follows: “Q. When you came around here (indicating) was Mr. Montague back here by the steps (indicating) ? A. Not until after this man ran and hit him. “Q. You can’t tell the jury, can you, that Mr. Montague was never up here by the door; within two feet of the door? A. He was not. The only time, when we carried him across there. “Q. That’s the only time? A. Yes, sir. “Q. What was he doing back there (indicating) when you saw him? A. I don’t know. “Q. You said you saw him. Tell us what he was doing. A. He was standing there. The man run against him and knocked him down. “Q. What was he doing? A. I don’t know. “Q. You saw him didn’t you? A. Sure I saw him. “Q Tell us what he was doing. A. I don’t know which direction he was coming to get into the office. “Q. You said he was standing there. A. Yes. “Q. Was he looking at the office and you stood there looking at him? A. When the man run that way I couldn’t keep my eyes on everybody. “Q. It did happen pretty fast? A. Yes, sir. “Q. There isn’t any argument but what the man was knocked down then? A. Mr Montague? “Q. Yes. A. Sure, he was knocked down.” Here we have a record of evidence from which the jury would be warranted in believing that the proprietor of the ice plant either pushed or knocked a man against another man whom he saw about to enter his place of business and did this in such a violent manner that the man entering was injured. Does that constitute actionable negligence? In the first place the plaintiff was at least a licensee upon the premises. The contention of the defendant is that since plaintiff was a mere licensee on the premises that he only owed him the duty to refrain from acts of willful and wanton negligence. Defendant argues that there is no claim of such a high degree of negligence here. There is a further refinement of that rule, however. It is stated in Brigman v. Construction Co., 192 N. C. 791, 136 S. E. 125. There the court said: “The general rule is that a trespasser or permissive or bare licensee upon the property of another cannot recover for defects, obstacles, or pitfalls upon the premises, unless the injury shall result from willful or wanton negligence. . . . The strict rule exempting the owner of premises from liability to a licensee is ordinarily applied when the negligence of the owner is passive. If the owner, while the licensee is upon the premises in the exercise of due care, is affirmatively and actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased hazard and danger, the owner will.be liable for injuries sustained, as a result of such active and affirmative negligence ... .” (pp. 794, 795.) In that case a woman and her husband had come on the premises of the defendant in an automobile. While she was sitting in the car waiting for her husband a truck of the defendant company backed into the car in which she was sitting and injured her. In holding the company liable the court said: “So, applying the established rules of liability to the facts of this case, even if the plaintiff was a trespasser or permissive licensee, as contended by the defendant, she was not injured as a result of existent conditions upon the premises or as a result of the passive negligence of omission, but she was injured by the actual negligence of the defendant in backing upon the car in which she was sitting, a loaded truck, without notice or warning, and while she was at a place which the defendant had designated as a parking place for automobiles.” (p. 797.) In Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685, the plaintiff in going through a private passageway owned by the defendant was struck and injured by barrels thrown out the windows of the building by defendant’s agents. The court, in citing Sweeny v. Old Colony Railroad Co., 10 Allen, 368, held the company liable, and said: “Even if he was there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing and in fact injured him.” (p. 578.) (See, also, Note in 49 A. L. R. 778; also, 45 C. J. 804; also Restatement, Torts, § 341.) In this case the basis of liability is not some claimed defect in the premises, but is the act of -defendant in knocking the discharged employee against plaintiff in such a negligent manner as to injure plaintiff. The judgment of the trial court overruling the demurrer of defendant to the evidence of plaintiff is affirmed.

The opinion of the court was delivered by Thiele, J.: This was an action by an administrator to recover property alleged to belong tó his decedent. At the trial plaintiff moved for judgment on the pleadings and opening statements. The motion was allowed and a judgment rendered from which defendant appeals. Briefly stated, the petition alleged that one Bessie Wolcott died intestate on October 21, 1937, and that plaintiff was appointed administrator of her estate; that at the time of her death she was in poor bodily and mental health and wholly incapable of transacting business or entering into any legal transaction affecting herself or her property rights; that shortly before her death she was possessed of personal property consisting chiefly of money in the approximate amount of $3,100; all of which was well known to the defendant, who, with a design and purpose to acquire the property for himself, induced Bessie Wolcott to enter into a written contract which provided that she transfer all of her personal property to defendant, who agreed to look after her for the remainder of her lifetime or until such time as the expense for her care equaled the amount of her property received by the defendant, and thereafter defendant’s obligation should cease; that all of the acts of defendant in obtaining the contract were fraudulent; that plaintiff did not have a copy of the contract, the same being in possession of the defendant, and that there should be disclosure thereof; that defendant had at all times refused to account to plaintiff as administrator for any or all of the cash or personal property received by him from Bessie Wolcott. The prayer was for discovery of the contract, for an accounting thereunder, and for judgment for the amount shown due by the accounting, etc. Defendant’s answer denied generally but admitted the death of Bessie Wolcott, alleged the making of the contract between her and defendant on September 27, 1937, a copy being attached to the answer; that under the contract Bessie Wolcott paid over to him $3,182.61 and he proceeded to perform the duties imposed on him thereunder, specifying certain of those duties performed. By way of cross petition, defendant alleged that Bessie Wolcott owned other personal property which at her death came into possession of plaintiff, but which defendant was unable to list or describe; that under the above contract all such property belonged to him and he was entitled to discovery and accounting. He prayed that plaintiff take nothing and that he have appropriate relief under his cross petition. Plaintiff’s'reply neither admitted nor denied the copy of the contract attached to the answer was true and correct, but asked that strict proof be made, and also that strict proof be made of amounts expended under the contract. There was general denial of all allegations controverting the allegations of the petition. As prepared, the paragraphs of the contract were not numbered. We have inserted numbers so that reference to particular parts may be more easily made. The contract reads: ■ (1) “This contract and power of attorney made and entered into this 27th day of September, 1937, by and between Bessie Wolcott, party of the first part, and J. T. Martin, party of the second part. (2) “Witnesseth: Whereas, Bessie Wolcott is a widow, and will soon be 72 years of age, and is alone in this world and needs the care and assistance of someone younger to take care of her business and her property, and having known J. T. Martin for a good many years, and having full confidence in his honesty and integrity, I desire that he take care of all my money, and any other property that I may possess, and take care of me in any way that he deems best and for my health and comfort, and to this end we make the following agreement. (3) “That Mr. J. T. Martin hereby agrees to take care of me in a way that I should be taken care of, seeing that I have sufficient clothing and food and the other necessaries of life. He may do this personally or have some one else care for me, but he is to have general supervision and care of me and all of my property, and to pay anyone that cares for me out of any funds in his hands. (4) “It is further agreed that at my death that Mr. Martin is to see that I have a decent burial and pay for same out of my funds and property. (5) “As consideration for the care and keep of myself and for Mr. Martin taking care of my business for me, and providing me with a decent burial at my death, I do hereby turn over to Mr. J. T. Martin all monies and all property of every kind and character that I possess at this time, and I hereby authorize the Madison Bank, Madison, Kansas, to turn over and pay to Mr. J. T. Martin any money that I may have on deposit in said bank, and also authorize anyone else having any of my property to turn the same over to Mr. Martin for my use and benefit. (6) “It is further agreed that when Mr. Martin shall expend for my support all of the money that he may have of mine, that he is under no further legal obligation to take care of me, and I understand that other provisions shall be made for my care and keep. (7) “It is further agreed between said parties that if the said Bessie Wolcott shall die before her money and property has all been expended, that Mr. J. T. Martin shall have for his labor in taking care of the said Bessie Wolcott all monies and property that I may leave at my death. (8) “I, Bessie Wolcott, state that Mr. Darby has carefully read over this contract and power of attorney to me, and that I fully understand the same and am signing this contract knowing and feeling that it is for my best interests, as I feel that I need someone to look after my property, and see'that I have good care and not be worried with my money or property, and I am signing this contract of my own free will and volition. (9) “I have no near relatives that will care for me, and I have known Mr. Martin and his wife for so many years, and they have been good to me and I feel certain that they will continue to do so, and for that reason I desire that Mr. Martin have any money or property that may be left at the time of my death.” Plaintiff may not have judgment in his favor by reason of anything said in his opening statement, so it need not be reviewed. Defendant’s opening statement as to what his evidence would show referred to many matters connected with Bessie Wolcott’s earlier life, accumulation of some property, her marriage, the death of her husband, the sale of certain real estate; that shortly after her husband’s death she went to Vermont, later to Canada, and that on September 16, 1937, some person returned her from Canada to Madison, Kan., her home city, and attempted to turn her over to the city clerk, who refused, and she was then taken to the home of Mr. Martin, who was a good friend; that he made certain efforts to secure a place where she could stay, which it is not necessary to detail; that finally Mr. Martin took her to Mr. Darby, in Eureka, who conferred fully with her, Mr. Martin not being present, the contract resulting from that conference, and that thereafter certain arrangements for her care were made, until October 14, when she broke her hip; that she was taken to a hospital and died in about a week; that pursuant to the agreement Mr. Martin had paid all claims and obligations due and owing by reason of anything he had done under the contract in the sum of approximately $900. As gleaned from the journal entry of judgment, at the conclusion of defendant’s statement plaintiff made his motion for judgment and— “Upon inquiry by the court, plaintiff in open court agrees that the court should in any event find and allow any expenditures made by defendant Martin under the contract in question and should determine his compensation.” And after hearing argument on the motion the court found the contract — ■ “Is in the nature of a trust, and testamentary, and that defendant is not entitled to recover under said contract as per its terms, and that said trial should proceed only as to the accounting of sums received and expended by defendant Martin,” and that the defendant then elected to stand upon the ruling made on the motion without introducing evidence on the accounting. The court then found defendant should pay into court the sum of $2,000, etc., and rendered judgment accordingly. The record is barren of information as to how this amount was determined, but apparently the trial court assumed defendant had received $3,182.61 and had paid out about $900 as alleged in his answer, leaving him charged with $2,282.61, the difference between that amount and $2,000 being the allowance made for compensation for services rendered. Appellant directs our attention to Caylor v. Casto, 137 Kan. 816, 22 P. 2d 417, and to cases cited therein to the effect that as opening statements are permissive and not obligatory no judgment should be rendered thereon unless it clearly appears that the statements are knowingly and completely made and disclose facts which absolutely preclude recovery by one party and compel a judgment in favor of the other. That such is the rule may not be doubted. But its application here does not follow. The motion here was directed at the pleadings and the statements. An element of plaintiff’s case and defendant’s defense was the legal effect of the contract, the execution of which was admitted. It clearly appeared from defendant’s statement that he had received $3,182.61 of the moneys of Bessie Wolcott, and if the construction of the contract under which he received it led to the conclusion that he was not entitled to all of her property, but only to credit for amounts properly expended and to compensation for his services, then the court, treating the motion made as in the nature of a demurrer, correctly ruled the only matter at issue was the amount of the expenditures and of defendant’s compensation for services rendered. We therefore proceed to examine the contract to determine its nature. It is familiar law that in construing a contract one clause or paragraph may not be emphasized and another ignored, but the intention of the parties must be gathered from the whole instrument. Appellant makes some contention that upon execution of the contract the title to the property immediately vested in him, and that upon his performing fully on his part he became absolutely entitled to any unexpended portion of the funds delivered to him. It may be observed that the statements in the fifth paragraph may be said to warrant a conclusion that title did immediately vest. On the other hand there are repeated statements that lead to a contrary conclu sion. The third paragraph ends thus: “But he is to have general supervision and care of me and all my property.” The fourth paragraph provides that Mr. Martin is to see she has a decent burial “and pay for same out of my funds and property.” In the seventh paragraph she refers to “all monies and property that I may leave at my death.” In the eighth paragraph the purpose expressed is to “see that I have good care and not be worried with my money or property,” and in the ninth paragraph she expresses a desire that Mr. Martin “have any money or property that may be left at the time of my death.” Without repeating all of the contract, we are of opinion that reading all its parts together leads to a conclusion an immediate passing of title was not intended and did not occur. Our attention is also directed to authorities bearing on whether the contract provided for disposition of property at the death of Bessie Wolcott, and if it be held to be testamentary, that it is invalid because not executed in the manner provided by statute for making a will. (G. S. 1935, 22-201 et seq.) Although we have many decisions dealing with situations arising under various circumstances, we shall not review them but shall call attention to two which state the basic rule. In Reed, Ex’r., v. Hazelton, 37 Kan. 321, 325, 15 Pac. 180, it was said: “If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract, but if the instrument does not pass an interest or right until the death of the maker, it is a will, or testamentary paper.” (p. 325.) The test for determining was laid down in Powers v. Scharling, 64 Kan. 339, 343, 67 Pac. 820, in the following language: “In determining whether an instrument be a deed or will, the question is, Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper? Or, on the other hand, did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will.” (p. 343.) We think that the above contract, tested under the above rules, shows a situation where the right of Air. Martin to receive any residue that might remain did not vest until the death of Bessie Wolcott. The instrument was testamentary in character, but was not sufficient as a will. That, however, does not dispose of the contractual features of the document. The writing may be good as a contract, even though not valid as a will. (Stahl v. Stevenson, 102 Kan. 844, syl. ¶ 4, 171 Pac. 1164.) It has been repeatedly held that where a definite contract to leave property by will, or in payment for services rendered, has been clearly established, and there has been performance by the promisee, equity will grant relief, if there is no inadequacy of consideration, and in equity and good conscience the promisee should have and enjoy the property sought as against those who would otherwise be entitled to it. No attempt will be made to collect the cases so holding. Examples are: Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Braden v. Neal, 132 Kan. 387, 391, 295 Pac. 678; Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P. 2d 665; Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571; Dent v. Morton, 148 Kan. 97, 101, 79 P. 2d 875. An examination of the contract before us discloses that under it as a whole, and under paragraph 6 in particular, the promisee’s obligation was limited to seeing that Bessie Wolcott had a place to live and that he would pay her expenses until her death or until her money was exhausted, whichever occurred first. If she died first, he was to get what was left as compensation for his services. If exhaustion of her funds occurred first, he was without further legal obligation. He stood to gain much and to lose little. The contract is open to the inference that it was to his interest that Bessie Wolcott be taken care of in a niggardly and shabby manner, so that some of her funds would remain unexpended at the time of her death, or to the inference that her early death would be to his material advantage. Such a contract could hardly be said to be equitable or conscionable, regardless of any evidence of performance under it; a mere reading of the contract shows that the trial court rightly concluded the defendant was not entitled to recover under the contract “as per its terms.” It clearly appears from defendant’s opening statement that the services he performed under the contract were all rendered within a period of four weeks and very likely consumed but a minor part of his time, and that whatever he did could be well compensated by a sum far short of the amount in his hands according to his opening statement. No complaint is made that, assuming the trial court’s disposition to be otherwise correct, the allowances for expenditures for bills paid and for defendant’s compensation are either wrong or inadequate. We are of opinion the trial court properly disposed of the action, and its judgment is affirmed.

The opinion of the court was delivered by Wedell, J.: This is an appeal from a conviction of simple assault. Defendant had been previously tried and convicted of manslaughter in the second degree. This court reversed that judgment for trial errors and remanded the case for retrial. (State v. Linville, 148 Kan. 142, 79 Pac. 869.) The first action was tried in Allen county, where the alleged offense occurred. The retrial was had in Woodson county in response to a change of venue requested by the defendant. The subject of venue, however, is not involved in this appeal. In the instant case a demurrer was lodged against the state’s evidence on the ground no offense of any kind was established. The demurrer was sustained as to the charge of manslaughter in the second degree, but overruled as to the lesser offenses included within the greater charge, namely, manslaughter in the fourth degree and simple assault. Defendant was convicted only of the latter offense. The state has not cross-appealed and we need therefore consider only such portions of the record as pertain to the offense of simple assault. Defendant first contends his demurrer should have been sustained even as to that'offense. In the instant case we must again invoke the rule that in passing on a demurrer to. the evidence, the court is concerned only with that evidence and reasonable inferences to be drawn therefrom which support or tend to support a cause of action or defense. (Bray v. Cooper, 145 Kan. 642, 646, 66 P. 2d 592.) We must also again invoke the rule that such evidence and reasonable inferences to be drawn therefrom must be considered in the light most favorable to the party adducing it. (Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820.) With these principles in mind we shall consider only such portion of the state’s evidence as established or tended to establish the offense of assault. The substance of that evidence was: Defendant operated a night club or roadhouse a short distance from the city of Ida. A man by the name of Ab Lanferman had frequented the night club on two occasions on the night in question. He first came there between the hours of ten and eleven o’clock. On his first visit he showed definite signs of intoxication, but appeared able to take care of himself. He returned at about one o’clock in the morning. He had been drinking and was talking loudly and was somewhat annoying to others in the place. He ordered some whisky, but instead of drinking it, he poured it out on the bar. The defendant went to the end of the bar where Lanferman was then standing and grabbed him by the arm and pushed him toward the door. He put his arm around Lanferman as they were going toward the door. Lanferman appeared to resent being taken out. Defendant appeared to be angry. The wooden door was not closed, but the screen door was closed. When they got to the door, Lanferman swung around facing the defendant. When they were right in the doorway defendant had his left hand on Lanferman’s shoulder, and with his right hand had pushed or shoved him backward through the doorway. There were three steps from the floor to the cement sidewalk, which was a distance of about two feet. Lanferman fell to the sidewalk and was lying on his back. Defendant rendered aid and called a doctor. Defendant advised a state’s witness: He had “just put up with Lanferman enough.” Lanferman was taken to a hospital. He was semiconscious over a period of about fifteen days and died. A physician testified in substance: He thought death was caused by a head injury at or near the base of the skull, probably brought about by the object on which Lanferman had fallen, but that the X ray did not reveal a skull fracture. Alcohol might have been one of the contributing causes of his death. We are, of course, not now concerned with the exact cause of Lanferman’s death, but only with the question whether an assault had been committed against his person. Our statutes, after defining other offenses against a person, conclude with G. S. 1935, 21-436, as follows: “Any person who shall assault, or beat or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year.” In State v. Holman, 90 Kan. 105, 132 Pac. 1175, it was said: “An ‘assault’ has been variously defined as: “ ‘An attempt to commit a violent injury upon the person of another; “ ‘An attempt to offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect; “ ‘An offer or attempt to do a corporal injury to another.’ (3 Cyc. 1020, 1021; see, also, 1 Words & Phrases, pp. 532-538.)” Defendant urges a criminal intent is an essential element of the offense of assault and that no such intent was shown. It is true such intent is an essential element of the offense. (1 Brill’s Cyclopedia Criminal Law, § 399.) In the instant case, however, there was an actual overt act and the intent may always be inferred from facts and circumstances which legitimately permit such inference. (1 Brill’s Cyclopedia Criminal Law, § 399.) Furthermore, every man of sane mind is presumed to intend the reasonable and natural consequences of his own acts. (State v. Dull, 67 Kan. 793, 798, 74 Pac. 235.) Defendant contends he had the right to evict Lanferman. There was nothing in the evidence of the state which, as a matter of law, justified the manner in which Lanferman was evicted. Clearly, Lanferman was intoxicated. According to the evidence, he either stood directly in the doorway or very close to it. His back was toward the door. It was two feet from the floor to the concrete sidewalk. Defendant intentionally pushed or shoved Lanferman out of the place while his back was turned to the door. In 1 Brill’s Cyclopedia Criminal Law, § 402, the rule is stated thus: “A person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury.” Under the circumstances it was the province of the jury and not the duty of the court to determine whether defendant violated the above rule. The state contends its evidence disclosed defendant was guilty not only of assault, but of both assault and battery. The state has not cross-appealed and we pass that contention. The state’s evidence clearly established an assault, and the demurrer was properly overruled. In view of what has been said, we need not treat the second contention that the verdict is not sustained by the evidence and the law. Defendant complains concerning the instructions. He contends that the court, after instructing the jury as to the elements of manslaughter in the fourth degree, failed to define the term “assault,” and erroneously omitted the word “beat” from the assault statute. That part of the instruction was as follows: “Section 21-436, General Statutes 1935, relative to the offense of simple assault, so far as it applies to the charge in this case, reads as follows: “ ‘Any person who shall assault, ... or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year.’ " It is true the court might well have defined the term “assault” and advised the jury concerning the manner in which the defendant might have lawfully evicted Lanferman. It is not contended, however, that the state’s argument to the jury on that subject was in any manner contrary to or inconsistent with a proper instruction on that subject had an instruction been given. The record discloses no objection to the argument on behalf of the state. • The record contains no specific objection to the instructions on any ground now-urged. No fuller instructions were requested. It is not shown how the omission of the word “beat” from the assault statute, in view of the evidence, could possibly have prejudiced the defendant in a conviction of simple assault. It does not affirmatively appear the substantial rights of the defendant were affected by any of the alleged errors or defects relied upon. In the absence of such a showing we are not permitted to reverse the judgment. (G. S. 1935, 62-1718.) See, also, State v. Reuter, 126 Kan. 565, 566, 268 Pac. 845; State v. Toelkes, 139 Kan. 682, 684, 33 P. 2d 317; State v. Hooper, 140 Kan. 481, 482, 37 P. 2d 52. The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This is an appeal from a judgment of the district court of Crawford county denying an injunction to restrain the plaintiff from prosecuting an action in Missouri founded on the same cause of action as one which the Crawford county district court had already taken jurisdiction of at the instance of the plaintiff. The pertinent facts were these: On October 6, 1936, on the premises of the Santa Fe railway company in the city of Pittsburg, there was a collision of motor trucks, one of which was operated by plaintiff, John Williams, and the other by an employee of defendant, Lee Payne. The latter operated a number of trucks under license. On the alleged ground that the fault lay with Payne, Williams brought an action in the district court of Crawford county against Payne and his insurance carrier for damages to his person and property in the sum of $15,000. The action was filed on April 16,1937. On June 29 defendants filed their answer, and on December 31 plaintiff filed his reply. On February 26, 1938, plaintiff filed an amended petition, to which defendants answered on April 11. While the cause and issues thus stood in the Kansas district court in the forum of plaintiff’s own choice, on July 1,1938, he filed another suit on the same cause of action in the circuit court of Jasper county, Missouri, making Payne alone defendant therein; his insurance carrier was not impleaded; the recovery sought was $10,000. From this point forward our statement of facts will require us to keep track of both the Kansas lawsuit and the Missouri lawsuit. On July 9,1938, defendants filed in the Crawford county, Kansas, district court an amended answer to plaintiff’s amended petition of February 26, and on July 13 plaintiff filed a reply thereto. On September 19 plaintiff filed in the Jasper county, Missouri, circuit court, a motion for a change of venue, which was granted; and on October 4 the Missouri case was certified to the circuit court of Barton county, Missouri; and in the latter court plaintiff then filed an amended petition raising his prayer for damages to $20,000. (At the oral argument before this court on appellants’ application for a stay of proceedings, counsel for both parties intimated that through some further maneuver in procedure another change of venue has occurred or is shortly to occur, whereby another transfer of that case will be ordered and will be triable in the circuit court of Vernon county, Missouri.) On October 4, 1938, plaintiff filed a second amended petition in the original action in the Crawford county, Kansas, district court, to which defendants answered on January 16, 1939, and plaintiff replied on January 23. The Kansas lawsuit was thus at issue on the amended pleadings, and on January 23 it came on for trial before a jury, resulting in a mistrial by the failure of the jury to reach a verdict. The jury was discharged on January 27 and a new trial ordered. At the next setting of cases for trial, in the Crawford county district court, on March 20, counsel for defendants requested the court to set the cause for trial. Counsel for plaintiff objected, stating to the court that they intended to try the case in Missouri. Counsel for defendants asked the court to set it for trial or dismiss it. No ruling was made on this request. Later at another setting of cases at the same term of court, in April, counsel for defendants again requested that the case be set for trial. Counsel for plaintiff again objected, saying, “They were going to try the case in Missouri and didn’t want it set down in Pittsburg.” Counsel for defendants insisted the case either be set for trial or dismissed. No formal order of court was made pursuant to that colloquy of counsel. On April 28, 1939, plaintiff filed in the Crawford county district court his third amended petition. On July 10,1939, the defendants, Payne and his insurance carrier, filed in the Crawford county district court their application for an injunction to restrain plaintiff from prosecuting the action in Missouri. They pleaded the prior jurisdiction of the Kansas court over the subject matter and the parties, the fact that the cause of action arose in Pittsburg, Kan., that the principal litigants resided in Pittsburg, that their witnesses all lived in or around Pittsburg, that the chief counsel for the litigants resided in Pittsburg, that the concurrent prosecution and maintenance of another lawsuit in Missouri necessitated the employment of additional attorneys versed in Missouri law and practice and was an unjustifiable hardship on defendants, that under the Kansas statute (G. S. 1935, 40-220) the defendant insurance carrier was entitled to contest its legal liability in a Kansas district court in any such action as that alleged by plaintiff and was immune from the hazards of such litigation elsewhere. In the application it was also alleged that in the Kansas court defendants were entitled to the privilege of propounding special questions to the jury and to a judgment based on a jury’s unanimous verdict, whereas in Missouri they had no such privileges, and that in Missouri a money judgment could be recovered on a verdict of three-fourths of the jury. To this application for an injunction, counsel for plaintiff filed an, answer on September 6, alleging that defendant Payne had voluntarily submitted to the jurisdiction of the Jasper county (Mo.) circuit court, by filing a demurrer to plaintiff’s petition and a motion to dismiss plaintiff’s action for failing to give the prescribed statutory security for costs. It was further answered that the applicant, Payne, had resisted plaintiff’s motion for a change of venue; and that subsequently when the change of venue to Barton county, Missouri, was granted, the. applicant filed a motion to strike out parts of plaintiff’s amended petition, and had also filed a motion for a continuance on the ground that one of his Missouri attorneys was a member of the legislature — that being a statutory ground for a continuance in that state. For all of which reasons plaintiff Williams alleged that the applicant Payne had waived any right he might have had to enjoin the prosecution of the Missouri action, and that he had been guilty of laches in not filing proceedings to enjoin said Missouri action until more than a year had elapsed, nor until the trial of the Missouri case was imminent. The matters involved in this application for an injunction were set down for hearing on the pleadings and on certain stipulations of agreed facts, together with certain testimony of attorneys touching narrative and procedural details of the litigation which elicited no material controversy of fact. Plaintiff demurred to the sufficiency of the facts to justify the granting of the injunction. This demurrer was sustained, and the matter was forthwith appealed to this court, and an application was made for a stay of the district court’s judgment pending a final decision of this court. At the hearing of such application, the oral arguments and admissions of counsel developed all the material facts; and by mutual consent the cause was submitted on the merits for early decision, the desirability for which was obvious. The exercise of injunctive power by one court to restrain litigants from prosecuting another action in another court is one not to be lightly exercised. The power, however, does exist, and on proper occasion it has been sanctioned by this court (Gordon v. Munn, 81 Kan. 537, 106 Pac. 286; Mason v. Harlow, 84 Kan. 277; 114 Pac. 218, 33 L. R. A., n. s., 234). Ordinarily the exercise of the power to restrain the prosecution of a second action in another court is most readily justified where the court exercising it has had prior jurisdiction of the subject matter and the parties. (Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369; Juhlin v. Hutchings, 90 Kan. 618, 135 Pac. 587; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 264 Pac. 68.) In 14 R. C. L. it is said. “An injunction restraining a suit in a foreign court is sometimes granted . . . where the local court had prior jurisdiction, and all matters at issue can readily be adjudicated in the suit there pending ... In this connection it is also decided that if a suit or action is already pending in a court of a state or nation between residents thereof, and one of them subsequently institutes another action for the same cause against his adversar}' in a foreign court, though complete justice between, the parties may be done in the local court, the action in the foreign court will be regarded as vexatious and will be enjoined.” (pp. 416, 417.) This rule of equity was applied in Bankers Life Co. v. Loring, 217 Ia. 534, 250 N. W. 8; and in Reed’s Admr’x v. I. C. R. Co., 182 Ky. 455, 206 S. W. 794. See, also, 32 C. J. 114 et seq. Counsel for appellee, however, suggest that plaintiff’s action in Missouri whose prosecution is sought to be enjoined is a mere transitory action sounding in tort, and that no Kansas precedent can be cited to justify injunctive interference. They go further and cite the comparatively recent case of Missouri-K.-T. Rld. Co. v. Ball, 126 Kan. 745, 271 Pac. 313, where this court reversed the judgment of a trial court which had enjoined the plaintiff Fall from prosecuting a tort action in Missouri. We there recognized the right of a plaintiff to select any forum open to him in which to commence and prosecute his action, and that when he did so commence his action in Missouri, its prosecution should not be enjoined by a Kansas court in an action subsequently begun, in which action the Kansas court’s jurisdiction merely extended to the parties and not to the subject matter of the action theretofore begun in Missouri. The closer the Ball case is studied the less any analogy to the case at bar is discernible. In the Ball case the defendant was a Missouri corporation. Here the defendant is a citizen of Pittsburg, in Crawford county, Kansas. In the Ball case no action involving the same cause and issues was pending. In this case the action on the same cause and issues was begun in Kansas by plaintiff himself more than a year before he commenced his action in Missouri. The Kansas case was at issue long prior to the institution of the Missouri case. The instant case has already been tried in Kansas, while the Missouri case has gone its devious way from one circuit court to another, having its pleadings amended from time to time, and serving no apparent purpose except to tantalize the defendants. Counsel for plaintiff virtually concede that if defendants had promptly asked the Kansas court to enjoin the prosecution of the action in Missouri they might have been entitled to injunctive relief, but that appellants have been guilty of laches in that respect and are now estopped to seek such relief because they have hired Missouri lawyers to attend to that case, and by filing a demurrer to the petition in it, by resisting plaintiff’s motion for a change of venue, by filing a motion to strike out parts of plaintiff’s amended petition, and by filing a motion for its continuance. We do not think these incidents constitute estoppel; and as for laches, the grievance of the maintenance of the Missouri case was progressive — plaintiff’s seeking a change of venue from one Missouri court of his own selection to another, and repeatedly amending his pleadings, which had the effect, if not the intention, of making more difficult defendants’ preparation to meet the issues first tendered. We think that neither the plea of laches nor estoppel was good. And while it is true that in no transitory action sounding in tort commenced in another state have litigants prosecuting it been enjoined in this state, the lawbooks draw no distinction between actions in tort and other transitory actions. (See Reed’s Admr’x v. Ill. Cent. R. Co., supra; and Weaver v. Alabama Great Southern R. Co., 200 Ala. 432, 76 So. 364.) Without our giving judicial sanction to all the particular grounds pleaded by defendants for injunctive relief, a patient study of the entire record constrains this court to the conclusion that the prosecution and maintenance of the action in Missouri — in whatever court in that state it now happens to be — is vexatious and inequitable, and appellants were entitled to the injunctive relief they prayed for in the Crawford county district court. The judgment is therefore reversed and the cause remanded with instructions to render judgment for defendants.

The opinion of the court was delivered by Hoch, J.:- This was an action to foreclose mechanics’ liens on real property. Judgment was for the defendants, and plaintiff appeals. The story told in briefs and oral arguments covers a good deal of ground and is somewhat involved. But it all boils down to simple enough questions, as far as this review is concerned. The essential questions presented are whether there was substantial evidence to support the court’s finding that the plaintiff was the owner of the property on which he sought foreclosure of the liens and, if such owner, whether the court erred in holding that he was not entitled to foreclosure. In fact, the first question is about all that is really presented. Charles I. McHenry, the plaintiff and appellant, is the father of C. J. McHenry, one of the defendants. To avoid confusion they will be referred to herein as father and son. The father alleged that about February 1, 1936, he entered into a contract with his son to erect two houses on certain lots in the city of Topeka; that at the time the contract was entered into the defendants, Charles Powell and Lizzie Powell, his wife, were the legal title owners of the lots, but that the son was. the equitable owner under a purchase contract with the Powells; that subsequent thereto the Powells gave a quitclaim deed to the lots to defendant Malcolm S. Smith; that he almost completed the two houses as provided in the contract; that labor and materials furnished had not been paid for; that the son had such title to the property as would give him a right to create a lien thereon, and sought foreclosure of the liens. The case was tried before the court, which made extended findings of fact on October 1, 1938. In the findings reference is made to prior litigation involving the rights of the parties in the property in question. In- view of the narrow issue here presented, it would serve no useful purpose to recite in detail all the contentions of the various parties to the proceeding. We merely summarize the court’s findings which bear upon the issue before us. The court found that on February 18, 1936, contracts were entered into for the purchase of lots 3 and 4 and 5, 6 and 7 on California avenue in the Western Land and Lot Company’s addition to the city of Topeka, for the total sum of $450, and payment of $25 was made on each of the two contracts and no further payments were made upon either of the contracts; that on February 17, 1936, Malcolm S. Smith loaned $250 to the father and son and as security took a chattel mortgage from both father and son upon a house located on Lime street which was to be and subsequently was moved to lots 3 and 4, already referred to; that in the affidavit contained in the said chattel mortgage, the father swore that he and his son, doing business as McHenry & Son, were the lawful owners of the property; that default was subsequently made in payment of the debt to Smith and that Smith brought suit and recovered judgment for $261.25 against both father and son, doing business as McHenry & Son; that the court found in the last-mentioned action that Smith was entitled to possession of the house which had then been moved to said lots 3 and 4, or to the value thereof in the amount of $261.25 in case possession could not be secured; that the father and the son claim that about February 1, 1936, they entered into an oral agreement with each other under which the father was to build a six-room house on lots 3 and 4 to cost $3,125, and another six-room house on lots 5, 6 and 7 to cost $4,250; that work was thereafter started upon the houses, both father and son working together on the construction ; that in the course of the construction, certain material was delivered by a Topeka lumber company and that upon failure to receive payment therefor the lumber company brought action on January 26, 1937, against father and son and recovered' a judgment therein against both of them; that on June 15,1937, the son filed an action against the Powells and Smith to quiet his title to- the five lots, and that in that action Smith pleaded that he had purchased the interest in the lots from the Powells and was the then owner, and that the McHenrys had defaulted in the contract for the purchase of the lots and cancellation of the contracts was asked for; that judgment was rendered in favor of Smith in the last-mentioned action and the contracts standing in the name of the son were ordered canceled; that subsequent to the last-mentioned judgment, certain extensions of time were granted to the plaintiff therein, and payment not having been made within the time allowed, a writ of assistance was issued on March 7, 1938, giving possession of the lots and improvements to Smith; after one of the houses named had been completed sufficient for occupancy, the father and son moved into it and occupied it until dispossessed by the writ of assistance; that the court had made a personal inspection of both houses and from such inspection and the testimony introduced was of the opinion that the amount named in the alleged contract between the father and son was far in excess of the fair and reasonable value of the improvements at the time the McHenrys were evicted; that the son did not participate in the negotiations for the purchase of the lots, and that the father was the moving spirit in all the transactions and negotiations involved in the purchase of the lots, and primarily directed the activities connected therewith; that in the purchase of the lots and in the purchase of materials and performing the labor in constructing the houses, the father and son were jointly associated together; that the father was at the times referred to in the findings “in truth and in fact, the real owner of the property involved in this action.” In connection with the decision announced upon the motion for new trial, the court reviewed much of the evidence upon which the findings had been predicated, and said: “I made rather voluminous findings, and while they cannot convey all that the court saw and took into consideration in deciding the case, I took into consideration the attitude of the father and son, their manner of testifying, their manner of conducting their business and the manner in which they made their claims here, and all of the various things that were shown in the evidence. . . . “I can come to but one conclusion in this case, and that is that the plaintiff, C. I. McHenry, was in truth and in fact the real owner of these improvements; and I believe that he was the one that invested the money in these lots. He took the title in the name of his son, but that the son is not the real party in interest. “This being an action under the mechanic’s-lien law, I do not believe the father is entitled to a mechanic’s lien upon his own property.” Upon such findings of fact, the court held that the plaintiff had not sustained the burden of proof resting upon him and was not entitled to recover. While there was conflicting testimony as to some matters covered in the findings of fact, we find from a careful examination of the record that there was ample evidence to support the findings heretofore recited. This court has said in a long and unbroken line of decisions that findings of fact in the face of conflicting evidence will not be disturbed where there was competent and substantial evidence to support them. (Money v. Safford, 127 Kan. 520, 274 Pac. 269; Brown v. Byers, 118 Kan. 503, 235 Pac. 866; Hughes v. Vossler, 112 Kan. 466, 211 Pac. 123.) While the appellant discusses other findings, those already stated determine the issue here. The only question remaining is whether on the basis of such findings the court properly concluded as a matter of law that the plaintiff could not maintain the action to foreclose the mechanic’s liens. It is well settled that a mechanic’s lien, being a creature of statute, can be claimed and enforced only under the terms of the statute (G. S. 1935, 60-1401). (Potter v. Conley, 83 Kan. 676, 112 Pac. 608; Lumber Co. v. Hunt, 96 Kan. 778, 153 Pac. 554; Doane v. Bever, 63 Kan. 458, 65 Pac. 693.) The statute makes the lien available to persons who furnish labor or material, under the conditions stated, “under a contract with the owner of any tract or piece of land or with the trustee, agent, husband or wife of such owner.” The court having found that the father, rather than the son, was the real owner at the time in question, it follows that he was not within the conditions of the statute. He could not make a contract with himself. (Lang v. Adams, 71 Kan. 309, 80 Pac. 593; Eggleston v. White, 113 Kan. 325, 214 Pac. 623; Spalding Lumber Co. v. Slusher, 121 Kan. 155, 246 Pac. 999; Amsden Lumber Co. v. Arnspiger, 129 Kan. 143, 281 Pac. 931; Gaudreau v. Smith, 137 Kan. 644, 647, 21 P. 2d 330.) The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action to recover a share of the proceeds of certain oil runs from an oil well in the city of Eureka. The background of the lawsuit was about as follows: In 1927 one Boyersmith and wife owned the east half of a city block (No. 15) in Eureka. Eastward of this tract and only separated from it by a city street the plaintiff, Mabel T. Hover, and husband owned an entire city block (No. 14). The John Rogers Company, a corporation, was interested in procuring oil and gas leases in that vicinity. Negotiations between these three parties resulted in the execution of leases to the John Rogers Company — one from Boyersmith and wife, and one from Mrs. Hover and husband. The Boyersmiths, the Hovers, and the Rogers company entered into a written agreement that the latter should drill a test well in the Boyersmith half-block and in the event it turned out to be a commercial well a second well should be drilled in the Hover block. The Boyersmiths and the Hovers also made a written agreement to the effect that any and all royalties which should inure to them from oil or gas produced on their respective city properties leased to the Rogers company should be pooled and apportioned between them in accordance with their relative acreages — two-thirds to the Hovers and one-third to the Boyersmiths. One provision of this contract, of prime importance in this action, read thus: . . all rentals, bonuses, and oil runs are to be shared in the future by the parties in the manner above described until changed by the parties hereto.” [Italics ours.] The leases and agreements were all executed on the same date, June 21, 1927. Pursuant to these arrangements a commercial oil well was completed on the Boyersmith property about August 1, 1927, and on September 10 another commercial oil well was completed on the Hover property. The royalties were apportioned between the lessors in conformity with their agreement. The oil well on the Hover property ceased to yield commercial production in about fourteen months and was abandoned and plugged. The Boyersmith well continued to be a commercial producer for several years, and the royalties therefrom continued to be apportioned according to the Boyer-smith-Hover contract of 1927 until shortly before this lawsuit arose. On May 11,1931, the plaintiff, Mabel T. Hover, and husband sold and conveyed her Eureka city property, block 14, to The VernerKelly Cattle Loan Company, a Missouri corporation, by deed of general warranty. Following the legal description of the property were these words: “Subject, however, to an oil and gas lease to John Rogers as shown by the record.” Elsewhere in the deed of conveyance the title of the grantors was covenanted to be free, clear and unencumbered in every respect— “except oil and gas lease above mentioned.” In all other respects the instrument of conveyance had the usual recitals of a warranty deed. For several years following the sale and conveyance of the Hover property, the Hovers and the Boyersmiths continued to receive the royalty pi’oceeds from the Boyersmith oil well in the ratio of two to one. In 1933 the Cleveland Oil Company succeeded to the rights of the John Rogers Company as lessee and producer. In 1936 it made the discovery that the Boyersmiths had failed to pay the taxes on their oil-producing property for the years 1931 to 1935, inclusive, and that the property had been bought in for the county as authorized by statute. This belated discovery of the Cleveland Oil Company caused some correspondence between it and the plaintiff, and between her and the Boyersmiths, and between counsel for these litigants. Eventually the Cleveland Oil Company took the position that no royalties would be paid to anybody until the rights of all concerned were adjudicated, and it invited a lawsuit for that purpose. Then followed this action between Mabel T. Hover, plaintiff, against the Cleveland Oil Company, defendant. In her petition plaintiff pleaded the facts which chiefly concerned her, and alleged that her two-thirds share of the royalty oil runs of the Boyersmith lease for three years had been withheld from her, to the aggregate amount of $105.47, for which sum with interest she prayed judgment. On motion of defendant, the Cleveland Oil Company, Mrs. Lottie Boyersmith, the Verner-Kelly Cattle Loan Company, and the board of county commissioners of Greenwood county were made parties and given time to plead. The Cleveland Oil Company then filed answer and cross petition reciting pertinent facts with exhaustive particularity, and set up a copy of the agreement between the Boyersmiths and the Hovers, wherein they had agreed to pool their royalties and to share them together “until changed by the parties.” A copy of the deed from the Hovers to the cattle loan company was also exhibited; likewise a copy of the contract between the Boyersmiths, the Hovers and the John Rogers Company (predecessor in interest of the Cleveland Oil Company). This defendant’s pleading raised issues of law to be noted later. The Verner-Kelly company filed an .answer and disclaimer in which it alleged— “. . . that it accepted said warranty deed with full notice and knowledge of the terms and provisions of a certain agreement entered into by and between Mabel T. Hover and H. D. Hover, her husband, and F. W. Boyersmith and Lottie Boyersmith, his wife, on the 21st day of June, 1927, pertaining to the oil, gas and mineral rights in and under block fourteen (14) and the east half (E%) of block fifteen (15), in, Bitler’s second addition to the city of Eureka, Greenwood county, Kansas, . . . and that this answering defendant at no time claimed, and does not now claim, any right, title or interest in or to the oil, gas and mineral rights in or under block fourteen (14) and the east half (B%) of block fifteen (15), described in said agreement, . . ” Lottie Boyersmith filed an answer and cross petition, raising no material dispute of fact, but giving a lengthy statement of facts which (like the Cleveland Oil Company’s pleading) did raise issues of law which will require our attention as we proceed. The defendant board of county commissioners answered alleging that it had a tax lien on the property which it asked the trial court to protect and that it be saved from costs. Plaintiff filed a reply which extends to eight printed pages of the abstract which raised no material issue of fact, but which, as in the pleadings of the other litigants, did seek to define and join the pertinent issues of law. The cause was tried by the court without a jury. Such evidence as the parties cared to adduce was presented; the pertinent questions of law were argued; and the trial court made findings of fact about which no litigant has complained. Based thereon the court made certain conclusions of law, the propriety of which is the subject matter of this appeal. These, so far as material here, read: “The court concludes as a matter of law that the contract or agreement that was entered into on the 21st day of June, 1927, by and between Lottie Boyersmith and F. W. Boyersmith, her husband, and Mabel T. Hover and Harry D. Hover, her husband, . . . terminated upon the execution and delivery of the warranty deed to the Verner-Kelly Cattle Loan Company, a corporation, on the 11th day of May, 1931, by the plaintiff, Mabel T. Hover and Harry D. Hover, and that all rights, title and interest of the said plaintiff in and to the oil and gas rights in and under the east half (EVi) of block 15, Bitler’s second addition to the city of Eureka, was forfeited; and that the defendants, Lottie Boyersmith and the heirs at law of F. W. Boyersmith, deceased, are the owners of the entire one-eighth (Vs) royalty; interest in and to the east half of block 15, Bitler’s second addition to the city of Eureka. . . . The court further concludes as a matter of law that any and all sum or sums of money now in the possession of or under the control of the defendant and cross petitioner, the Cleveland Oil Company, is the property of the defendant and cross petitioner, Lottie Boyersmith, and the heirs at law of F. W. Boyer-smith, deceased, . . .” The trial court’s further conclusions of law were that the title of the Boyersmiths to the half-block No. 15 should be quieted; that the board of county commissioners had no right or interest in the Boyer-smith oil or gas mining lease nor in the royalty proceeds thereof; and that the Boyersmiths had no interest in the oil, gas or other minerals in block 14 (the Hover block conveyed to the cattle company in 1931). Judgment was entered accordingly and plaintiff appeals, complaining of the general result. To determine the correctness of the trial court’s conclusions and judgment we should keep in mind that the Boyersmith lease, the Hover lease, the Boyersmith-Hover agreement, and the BoyersmithHover-Rogers agreement were all executed on the same day, which fact, together with the texts of those agreements, make it perfectly clear that they were all parts of one project which was to be undertaken for the benefit of the parties concerned — getting oil or gas production in commercial quantity from these town lots of the lessors. The Boyersmith-Hover agreement at the outset recites: “. . . whereas the said first parties (Boyersmiths) are the owners of the east half (E%) of block fifteen (15) in Bitler’s second addition to the city of Eureka, Greenwood county, Kansas, and that the said second parties (Hovers) are the owners of all of block fourteen (14), Bitler’s second addition to the city of Eureka, Greenwood county, Kansas,” etc. The very essence of the agreement was that the contracting parties were owners of adjacent properties suitable to be explored and exploited for oil and gas, and that any resulting royalties should be divided proportionately to their respective acreages. When the Hovers parted with their property what did they, have to contribute to the common pool of possible royalties? Nothing. The agreement had quite properly provided the oil royalties should be shared until it was changed by the parties. But that result would follow when they sold their property if the agreement had not mentioned it. After the Hovers disposed of their property there was no possibility that the Boyersmiths could thereafter get any benefit from the agreement of 1927. It was of no consequence that the cattle company filed a disclaimer and that its managing officers knew of the agreement of 1927 between the Boyersmiths and Hovers. They could have had no concern with that agreement. Neither was ij; of any significance that the Hovers continued to receive a portion of the Boyersmith oil-well royalties for several years after 1931. That fact constituted no estoppel; neither did the statements in a letter of one of the Boyersmith heirs which assumed that Mrs. Hover was still entitled to a share of the royalties of the Boyersmith oil well estop him or his fellow heirs. The judgment of the district court was so clearly correct that it leaves nothing open for debate or discussion. It is therefore affirmed.

The opinion of the court was delivered by Hoch, J.: This was a partition action in which the plaintiff claimed an undivided one-half interest in an eighty-acre tract, of land in Jackson county. The defendant, a sister of the plaintiff, claimed sole ownership on the ground of a voluntary division of properties theretofore made in accordance with a family agreement. The plaintiff prevailed, and defendant appeals. Aside from the specifications of trial errors the questions presented are essentially questions of fact, which were determined by the trial court. The situation can be briefly stated. Emma A. Harrison, a resident of Jackson county, was the owner, under the will of her father, Luther M. Myers, of a life interest in two tracts of land in that county, with remainder vested in her two daughters, Bertha and Helen, plaintiff and defendant, respectively, in the present action. The first tract, which consisted of eighty acres, is designated by the parties as “the home place.” The second is designated as “the sixty-seven acre tract.” The second tract was traded during the mother’s lifetime for an eiglity-acre tract known as “the Gilliland farm.” The mother, Emma A. Harrison, died intestate on December 5,1937, leaving the two daughters, Bertha Glover and Emma Bux, as her only heirs. .At the time of the mother’s death Bertha and her husband were living on the Gilliland farm, and the partition action sought to have her and her sister declared tenants-in-common of the home place, each with an undivided half-interest therein. Helen answered with denial that her sister, Bertha, had any interest in the home place, and alleged that as a result of a family agreement and a voluntary partition, her sister Bertha had received the Gilliland farm as her share of the realty, and that she, Helen, was entitled to be declared the sole owner of the home place. Bertha denied that such an agreement and partition had been made, and alleged that she and her husband had bought and paid for the Gilliland farm. A recital in detail of the facts and circumstances alleged by the two sisters in connection with the whole matter would serve no useful purpose here. Suffice it to say that one sister testified that such a family understanding had been reached and that she joined in a deed conveying her interest in the “sixty-seven acre tract” because of the agreement, and that she did not know that her sister claimed any interest in the home place until this partition action was brought. The other sister, Bertha Glover, just as positively testified that no such agreement for division of property had been made, that she and her husband had agreed to move to the Gilliland farm, which had been taken in a trade for the sixty-seven acre tract, in order to be nearer the mother. Mr. Glover, her husband, testified that he bought the Gilliland farm, assuming a nineteen-hundred-dollar mortgage and paying the mother fifteen hundred dollars in cash. Various witnesses testified as to conversations relative to the alleged agreement for partition and to the alleged purchase of the Gilliland farm by the Glovers. After hearing the conflicting testimony the court found for the plaintiff and entered judgment to the effect that the plaintiff and the defendant were each the owners in fee simple of an undivided half interest in the home place. No special findings of fact were asked, and the general finding for the plaintiff must be considered a finding against the defendant on all essential questions of fact. It is unnecessary, therefore, to give consideration here to appellant’s contentions relative to the validity and effect of voluntary partitions of property, or to appellant’s prayer that a constructive trust in the property be declared in favor of the defendant. The court in effect found that there had been no voluntary partition and that the plaintiff had in fact purchased and paid for the Gilliland farm. This court has said many times that a trial court’s finding of fact will not be disturbed where there is substantial evidence to support it. Appellant contends that the court erred in excluding certain testimony offered by witness Mike Harrison, former husband of Emma A. Harrison, and in admitting certain testimony offered by witness Claude Glover, husband of the plaintiff. Appellant complains of exclusion of the following testimony of Harrison: “A. She (Mrs. Harrison) asked Bertha if she would be satisfied with the 67 acres to go ahead and make the trade.” “Q. State what else Bertha said. A. She said she would be satisfied with it and then mother said . . . Bertha said she would be satisfied with it.” If there was additional testimony which witness Harrison would have given, if permitted to testify further, and which the appellant considered competent and material, proper showing concerning it should have been made as provided in the code of civil procedure. (G. S. 1935, 60-3004.) The excluded testimony, as far as the record shows, was largely cumulative, and if error, its exclusion was harmless error. The alleged error as to admission of testimony consisted of the following testimony of Glover, husband of the plaintiff: “Q. Then what occurred? A. I bought the farm. “Q. What did you pay for it? A. There was this $1,900 mortgage on the farm and I gave her $1,500 in cash and she stepped out of the picture.” Appellant says that the statement “I bought the farm” should have been excluded as being a conclusion of the witness. In view of the further testimony of the witness as to the terms of the alleged purchase and as to other attendant facts, we cannot say there was prejudicial error. The judgment is affirmed.

The opinion of the court was delivered by Allen, J.: This action was for damages for breach of three agistment contracts. From a judgment in favor of plaintiff defendant appeals. The contracts sued on were dated April 18, 1931. By the terms of the contracts defendant agreed to deliver to plaintiff at the several stockyards specified a total of twenty-four hundred head of cattle between April 18 and May 10, 1931. Plaintiff agreed to receive the cattle at the place of delivery, to furnish pasture for the cattle in the proportion of five acres per head, to supply salt and an abundance of water, to care for and return the cattle upon demand of defendant. Plaintiff agreed to pasture such cattle from April 18, until October 15, 1931. Defendant agreed to pay plaintiff for the pasturage the total sum of $17,777.50. On May 9, 1931, the defendant Opp wired plaintiff: “Llano, Texas, May 9, 1931.' Charles Lips. DWR, 609 Minnesota Avenue, Kansas City, Kansas. “Would like to get ten days extension on grass deal as I am trying to make some trades on cattle to put on your grass Stop Recent rains here assure all my cattle getting fat without going to Kansas wire me Menard, Texas. H. B. Opp.” On the same date the plaintiff Lips wired defendant: “May 9, 1931, H. B. Opp, Menard, Texas. “Telegram May 9 received Stop Have pastures ready and am waiting to receive and care for your cattle in accordance with contracts and holding pastures for you Stop Do not wish to change terms of contracts Stop If you wish pastures held for you for ten days without my trying to make new contracts to minimize your loss should you fail to occupy pastures as per contracts wire me to that effect and I will comply. Chas. S. Lips.” Defendant never answered this telegram and did not at any time deliver any cattle to plaintiff under the contracts. On May 18, 1931, the plaintiff sent the following telegram to the defendant: “Receiving no answer to my wire to you of ninth of May nineteen hundred thirty-one and your pasture contracts having been breached expect to accept offer of five dollars per head for rental of pastures near Hymer and Matfield Green, Kansas, for pasture season. Signed Charles S. Lips.” The plaintiff received no answer to this telegram, nor did he receive any protest from defendant to. the leasing the pasture on or after May 21 to other parties. Thereupon plaintiff on May 21, 1931, entered into similar contracts with other cattlemen whereby he agreed to pasture a total of 2,544 cattle on the same land designated in the contracts with defendant, and in which plaintiff agreed to water, salt and care for the cattle as in the contracts with defendant. Under these contracts plaintiff received the total sum of $11,880 — being the best price he was able to obtain. The plaintiff set up three causes of action in his petition, alleged the making of the three contracts with defendant, the failure of defendant to deliver the cattle as agreed, and the making of the second set of contracts with other cattlemen to minimize the loss. Plaintiff alleged that the defendant’s breach of the contract caused plaintiff to lose the difference between the $17,777.50 which defendant agreed to pay plaintiff for the pasture in the original contract, and the $11,880, actually received by plaintiff under the subsequent contracts with other cattlemen entered into by plaintiff to minimize the loss, and prayed judgment for the difference with interest. Defendant filed a,demurrer to the petition which was overruled. Defendant filed an answer and a cross petition for damages for breach of an oral contract. A reply to the answer and cross petition was filed by plaintiff. At the beginning of the trial defendant objected to the introduction of evidence for the reason the petition failed to state a cause of action. This objection was based on two grounds, (1) The plaintiff having leased the pasture to defendant until October 15, he could not relet the same to other persons before that time, and (2) there was no meeting of the minds of the parties to an essential part of the contracts, therefore they were incomplete and did not bind defendant. The plaintiff testified to all the matters alleged in the petition. Plaintiff received judgment for the amount prayed for in the petition with interest from October 15, 1931. This appeal followed. The brief submitted by counsel for defendant is devoted principally to a discussion of the measure of damages. The cattle were to be delivered to plaintiff between April 18 and May 10, 1931. The cattle were not delivered within the time stated in the contract, and the telegram of plaintiff was not answered. The defendant having abandoned performance on his part, the plaintiff was justified in construing the conduct of defendant as a total repudiation of the contract. In Parker v. Russell, 133 Mass. 74, the action was on a contract to support plaintiff for life, in consideration of the conveyance of land. Defendant did support plaintiff for five years and thereafter refused further aid or support. The court stated that “if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he elects so to treat it, the damages are assessed as of a total breach of an entire contract. . . . Such damages are not special or prospective damages, but are the damages naturally resulting from a total breach of the contract, and are suffered when the contract is broken, and are assessed as of that time. From the nature of the contract they include damages for not performing the contract in the future as well as in the past.” (See McCormick on Damages, '§ 144.) Clearly the plaintiff was entitled to sue for damages resulting from a total breach of the contract. What is the measure of damages? The plaintiff was to pasture the cattle from April 18 until October 15/1931. Was the plaintiff entitled to recover the difference between- the stipulated rental and the rental value of the pasture from April 18 until October 15? If so, we find no evidence in the record as to the value of the pasture for such time. Or was the measure of damages the difference between the stipulated rental, and the amount received on the subsequent contracts from other parties? In an ordinary lease where the lessee repudiates or abandons his lease the measure of the lessor's damages for the breach of contract is the difference between the rent stipulated in the lease and the sum for which .the premises are rented to other parties for the remainder of the term. [Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941.) And this seems to be the general rule. [In Re Mailings Clothing Co., 252 Fed. 667; People v. St. Nicholas Bank, 151 N. Y. 592, 45 N. E. 1129.) The law will not permit a person who has suffered an injury by the breach of a contract to recover for damages which he might have averted. The rule of avoidable consequences is thus stated in 1 Sedgwick on Damages (9th ed.) § 203: “The application of the doctrine of contributory negligence and of that of avoidable consequences often produce results that closely resemble each other; but there is a distinction between the two. Contributory negligence defeats the action itself. The rule of avoidable consequences can never produce this result as it cannot be applied until a cause of action, which in any event will entitle the party injured to nominal damages, has arisen. The rule, therefore, is really a rule of limitation upon the plaintiff’s recovery. Nor is it properly to be regarded as a species of mitigation of damages. This relates to the defendant and generally to the character of his acts; e. g., that a tort was not malicious; that, after committing a trespass, he repaired the wrong as far as possible.” See Rock v. Vandine, 106 Kan. 588, 189 Pac. 157; Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616; Severini v. Sutter-Butte Canal Co., 59 Cal. App. 154, 210 Pac. 49. The rule of avoidable consequences is frequently described as a rule which imposes a duty to minimize damages. In Lawson v. Callaway, 131 Kan. 789, 293 Pac. 503, it was held: ' “Where a tenant under contract to pay rent on real property abandons the property and notifies the landlord of that abandonment, it is the duty of the landlord to make a reasonable effort to secure a new tenant for the property and obtain rent therefrom before he can recover rent from the old tenant under the contract.” In the Callaway case the Kansas cases are reviewed at length. In the case at bar the plaintiff exercised the diligence of a reasonably prudent man to put himself in as good position as he would have been if the contract had not been violated. It is contended that the contracts sued on are agistment contracts and that "as such are subject to the ordinary rule of an ordinary bailment or service contract.” Counsel have not cited nor have we been able to find the case of an agistment contract breached by the failure to deliver cattle to the pasture as agreed. However, there are cases involving breaches of various kinds of contracts somewhat analogous to the contracts in question, where the correct measure of damages was held to be the difference between the sum called for by the contract and the amount actually realized, or that could reasonably have been realized, from the services or instrumentality in question under contracts made to minimize the loss. Thus, in Barron G. Collier, Inc., v. Kindy, 146 Minn. 279, 178 N. W. 584, the rule was held applicable in the case of breach of a contract whereby plaintiff was to display in public buses certain advertising to be furnished by defendant, the latter agreeing to pay a certain sum per month for the service. There defendant breached the contract by failing to furnish the advertising matter to be placed in the buses and to make the payments agreed upon. The court said: “Defendant contends that the court erred in ordering judgment for the' full contract price of the advertising. “This contract is much like a contract of employment and it is governed by similar principles. (McDermott v. De Meridor Co., 80 N. J. Law 67, 76 Atl. 331.) If the Kissam Company continued during the period of the contract, ready and willing to perform, then the measure of damages is prima facie the contract price, less the cost of furnishing the service. (Stumpf v. Merz, 50 Misc. Rep. 543, 99 N. Y. Supp. 337; Ware Bros. Co. v. Cortland C. & C. Co., 192 N. Y. 439, 85 N. E. 666, 22 L. R. A., n.s., 272, 127 Am. St. Rep. 914.) “In this case the testimony is that it would have cost nothing to complete the contract; that the expenses of operation of plaintiff’s business would be the same whether this advertising space were used or not. “If plaintiff obtained any other compensation from the space covered by defendant’s contract, or if by the exercise of reasonable diligence it might have done so, defendant was entitled to have such amount deducted from the contract price. (Peck & Co. v. Roofing & C. Co., 96 Mo. App. 212, 70 S. W. 169.) But the burden as to such matter was on the defendant. (Horn v. Western Land Ass’n, 22 Minn. 233; Beissel v. Vermillion Farmers' Elev. Co., 102 Minn. 229, 113 N. W. 575, 12 L. R. A., n. s., 403; Schommer v. Flour City O. I. Works, 129 Minn. 244, 152 N. W. 535; Sutherland, Damages, Secs. 713, 693.)” (p. 281.) Another case dealing with the measure of damages for breach of an advertising contract is Tradesman Co. v. Superior Mfg. Co., 147 Mich. 702, 111 N. W. 343, 344. There, the parties made a contract by which plaintiff was to publish a weekly advertisement for defendant on a certain page of its magazine, and defendant agreed to pay a certain sum therefor. After the contract had been partly performed, defendant withdrew the advertisement and refused to further recognize the contract. In discussing the measure of damages, the court held: “It is also contended that the court erred in determining the measure of damages. As we have heretofore held, a party to an executory contract may stop performance by the other party by a distinct, unequivocal and absolute renunciation thereof, and thereafter the right of such other party is limited to a recovery of damages for the breach of the contract involved. (Wigent v. Marrs, 130 Mich. 609. See, also, William E. Peck & Co. v. Corrugating Co., 96 Mo. App. 212; D. O. Hanyes & Co. v. Nye, 185 Mass. 507.) It was the duty of plaintiff, however, upon notice of renunciation of the contract by defendant, to use reasonable efforts to obtain other advertisements at the best price attainable, and the measure of damages would be the contract price less the amount obtained, or which might have been obtained for such other advertisements. (Hopkins v. Sanford, 41 Mich. 243; William E. Peck & Co. v. Corrugating Co., supra.)” (p. 705.) In Mimms v. Betts Co., 9 Ga. App. 718, 72 S. E. 271, 272, the contract, for breach of which the action was brought, provided that plaintiff would cut and haul logs for defendant, and that he should use for that purpose as many teams, not exceeding seven, as he should be able to purchase. When the contract was partially completed, defendant breached the contract by refusing to allow plaintiff to do any more hauling. In discussing the damages to which plaintiff was entitled because of the breach, the court, in its opinion, said: “The defendant, having breached the contract in June by refusing to allow the plaintiff any longer to perform, became liable for such damages as arose 'naturally and according to the usual course of things from the breach, and such as the parties contemplated when the contract was made, as the probable result of its breach.’ (Civil Code, 1910, section 4395.) Under the' particular facts in this case, the plaintiff would primarily be entitled to recover as damages the gross amount he would have earned with his teams during the remainder of the period throughout which the contract .was to continue, less such expenses as he' was saved by reason of not being required to perform the contract. However, upon the defendant’s breach of the contract, the plaintiff became duty bound to lessen the,damages, as far as practicable, by the use of ordinary care and diligence. (Civil Code, 1910, section 4398.) It consequently became his duty to make the deduction to which the defendant would be entitled under the measure of damages stated above, as large as possible; that is, it was his duty to cut out as much of the expenses as possible, or else to make the property which was causing the expenses to earn an income, as an offset against the damages. If it were not for this duty imposed on the plaintiff of lessening damages, he might have kept his teams idle until the end of the year, and have held the defendant liable for the full amount he would have earned by performing the contract, for it costs just as much to keep idle teams as it does to ke'ep working teams. If, by the exercise of ordinary care and diligence, the plaintiff could have employed his teams profitably in other work, it was his duty to do so.” (p. 720.) The rule that the measure of damages is the difference between the contract price and the amount which might have been, or was, realized from other contracts made to minimize the loss, is most frequently applied to cases in which the contract is purely one for personal services. But the duty to minimize damages, and the consequent rule as to the measure of damages, illustrated in the cases heretofore quoted, would, we think, apply to the case at bar. As stated, defendant lays stress on the fact that the contracts sued on were not leases, but were agistment contracts, and says that although the evidence “supports damages growing out of and being the result of an ordinary lease for land” it does not support damages for breach of an agistment contract. Much emphasis has been put on that feature of the contract which calls for certain services on plaintiff’s part. We believe the emphasis has been misplaced. While it is true that the contracts in question call for some personal services in connection with the pasturing of the cattle, still from the nature of the contracts it seems clear that personal service was incidental, as in the case of handling a ship under charter. The principal consideration for the promised payment of money was the furnishing of the pastures — the grass and water that made the land pasture land. These contracts were only incidentally contracts for personal service. While technically not leases, they are similar to leases. The use of the land was the all-important consideration. The contracts provided that appellee should receive the cattle, furnish pasture for them, supply salt and water, and care for and return the cattle. Of course, the main object of an agistment contract is the furnishing of pasture land on which the cattle might graze and gain weight. The principal service contemplated by the contracts was simply a duty on plaintiff’s part to see that the cattle did not escape, or die from lack of food and water. It is undisputed that both the contracts with defendant and the contracts later made with third persons to minimize the loss, called for the same pastures and the identical services on plaintiff’s part, and involved substantially the same number of cattle to be pastured for substantially the same length of time. The trial court had the right to infer from such facts that the expense to plaintiff under both sets of contracts would be the same. From.the facts in evidence, the court had the right to, and did, draw the inferences: (1) That plaintiff suffered a loss by reason of defendant’s breach of his contracts; (2) that that loss (whatever its amount) was minimized or lessened by the receipt of the amounts called for under the second set of contracts; and (3) that plaintiff would have been $5,897.50 richer had defendant carried out the original contracts, because under those contracts plaintiff would have received $17,777.50, while for the same pastures and the substantially identical services, under the contracts made with other persons after defendant’s breach, he was able to obtain only $11,880. The evidence indisputably showed the making of the contracts sued upon; their breach by defendant; the making of other contracts to minimize the loss, involving the same pastures and services as in. the broken contracts, and representing the greatest income plaintiff was reasonably able to obtain for his land and services during the term stipulated in the broken contracts; and the difference between the amount defendant agreed to pay under the original contracts and the amount received under the second set of contracts. This difference was the correct measure of damages. The judgment is affirmed.

The opinion of the court was delivered by Harvey, J.: This was an action for damages for personal injuries alleged to have resulted from defendant’s negligence. The jury answered special questions and returned a general verdict for plain tiff for $3,750, on which judgment was rendered. Defendant has appealed. The facts are not seriously controverted and may be summarized as follows: Waco street, in Wichita, is a north-and-south street and is intersected by First street, an east-and-west street. Defendant is a carrier of passengers for hire, and uses buses in conducting its transportation system. The route of its bus involved here is south on Waco to First and east on First street. The bus stop is before it enters the intersection of Waco and First streets. Plaintiff, a woman about forty years of age, worked in a sewing room at 201 Waco. At quitting time on the evening of April 4, 1938, she and a number of others who worked at the same place, boarded the bus at the bus stop above mentioned. She was the last, or among the last, to get on the bus. The bus was crowded. Plaintiff saw that as she was getting on. She expected to have to stand. That is the usual condition of this bus at this time of the day. The bus had seats for 21 passengers. The conductor testified he loaded 27 passengers. Some witnesses estimated the persons on the bus to be in excess of that number. Plaintiff had entered the bus and' dropped her fare in the box provided for that purpose. The conductor closed the door of the bus and started forward, and had made the turn east into First street. For some cause, which is not clear, plaintiff fell through the door of the bus onto the pavement. She testified she did not know what caused her to fall. The bus stopped promptly, plaintiff was helped back into the bus, and several persons asked if she was hurt. To some of these she replied that she was not, to others that she did not know. She went on home that evening and the next day returned to her work, but was not feeling well, and in the afternoon she had to go home. She testified that she went to the county hospital. When and for how long, or for what she was treated there, is not shown. She called a physician April 21, who gave her some treatments up to the time of the trial in December, 1938. We need not recite the medical evidence, since appellant makes no specific complaint of the amount of the verdict if plaintiff is entitled to recover at all. The petition charged plaintiff with negligence in starting the bus before plaintiff had an opportunity to take a seat; in overcrowding the bus so plaintiff was unable to get a seat; in turning the corner in such a way that it threw plaintiff against the door of the bus; in failing to stop the bus immediately when plaintiff was thrown against the door; in turning the corner at such speed as to endanger the life and limb of any person, and in failing to observe that passengers on the bus, and particularly the plaintiff, were unable to find seats and had no support or protection in the event a sudden turn of the bus was made. The answer denied the allegations of negligence and contained a plea of contributory negligence. The special questions submitted to the jury and their answers, so far as pertinent on this appeal, are as follows: "1. At what rate of speed was defendant’s bus moving (a) as it turned the corner? A. (a) 8 miles per hour, (b) at the time the plaintiff fell? A. (b) 8-11 miles per hour. “2. From the time the bus started at the corner until the plaintiff fell was there (a) any unusual or extraordinary lurch, jerk or movement? A. (a) No. (b) Any unusual or extraordinary speed of the bus? A. (b) No. “3. When the plaintiff fell, was the bus (a) turning on the intersection? A. (a) Yes. (b) Headed east after the turn was completed? A. (b) No. "á. Did the bus stop immediately when the driver knew that an accident had occurred? A. Yes. “7. Of what, if any, negligence was the defendant guilty? A. Starting bus before passengers properly located.” The answers to questions Nos. 1, 2 and 4 are in harmony with the evidence. Appellant moved to set aside the answer to question No. 3 on the ground it was contrary to the evidence. This motion should have been sustained. The evidence of all the witnesses, those for plaintiff as well as for defendant, was to the effect that the bus had completely turned the corner and was moving directly east on First street at the time of the incident which gave rise to this action. The only difference in the testimony of the witnesses in that respect is as to how far the bus had proceeded east on First street. Some of them testified it had gone about half a block; others placed it nearer the intersection; but in our view of the record, the particular location of the bus at the time plaintiff fell is not the controlling thing in this case. The real question is whether defendant was guilty of any negligence. In answering the special questions 1, 2 and 4 the jury found against plaintiff upon her allegations of negligence with respect to the speed of the bus, or any unusual or extraordinary lurch, jerk, or movement, and also against the allegation that the bus was not stopped promptly. The only negligence found by the jury against defendant was in answer to question 7: “Starting bus before passengers properly located.” The defendant moved for judgment on the answers to the special questions notwithstanding the general ver diet. This motion was overruled. Appellant contends it should have been sustained for the reason that the only thing the jury found as constituting negligence does not, as a matter of law, amount to negligence of defendant. The authorities appear to sustain that view. In 13 C. J. S. 1366, referring generally to the duties of carriers, it is said: “Ordinarily, it is not negligence to start a vehicle after a passenger has got on board the vehicle but before he has reached a seat, unless there is some reason to apprehend danger in so doing, or the movement is made in a negligent manner.” And at page 1382, treating particularly of street cars, it is said: “It is generally held that it is not necessary to hold a car until a passenger is seated, and that the carrier is not liable for injuries sustained by a passenger while in the act of taking a seat, in consequence of the starting of the car, unless it is started in a violent, unusual, or reckless manner, or unless the unusual conditions and circumstances surrounding a particular passenger, as in case of an enfeebled or infirm passenger, require that the car be held until he is seated.” To the same effect, see 10 Am. Jur. 252, 253. In McRae v. Boston Elevated Railway, 276 Mass. 82, 176 N. E. 773, it was said: “In the absence of proof of special circumstances a street railway company may start a streetcar which has stopped to take on passengers as soon as all are fully and fairly within it (citing cases). ... No contention has been made that the differences in the two modes of transportation should lead us to adopt a rule in respect to jerks and jolts of motor buses in stopping and starting different from that which obtains in the case of street railway cars.” (pp. 83, 84.) The following cases are to the same effect: Herbich v. North Jersey St. Ry. Co., 65 N. J. L. 381, 47 Atl. 427; Brocato v. United Rwys. & E. Co., 129 Md. 572, 99 Atl. 792; Adams v. United Electric Railways Co., 46 R. I. 312, 128 Atl. 197; Belledeau v. Connecticut Co., 110 Conn. 625, 149 Atl. 127; Wood v. P. R. R. Co., Appellant, 111 Pa. Superior Ct. 430, 170 Atl. 367; Phinney v. Eastern Massachusetts Street Ry., 285 Mass. 207, 189 N. E. 52; Worez v. Des Moines C. R. Co., 175 Ia. 1, 156 N. W. 867; Birmingham Railway Light & Power Co. v. Hawkins, 153 Ala. 86, 44 So. 983; Murphy v. New Orleans Public Service, (La. App.) 169 So. 890; Scott v. Cunningham, 161 Va. 367, 171 S. E. 104; Georgia Power Company v. Watts, 56 Ga. App. 322, 192 S. E. 493; Howard v. Louisville Ry. Co., 32 Ky. Law Rep. 309, 105 S. W. 932. The reason for the rule announced by the above authorities, and stated in several of them, is the public demand for rapid transportation, particularly in cities and other congested areas. If the rule as stated did not prevail there would be much slowing up of such traffic. More than that, experience has demonstrated that the practice is not inherently dangerous. It is rare indeed that any injury results therefrom. Counsel have furnished us with no authority, and our own research discloses none, in which the mere fact of starting a street car, or a motor bus, or a railway train (note language in the opinion, Railway Co. v. Warren, 74 Kan. 244, 249, 89 Pac. 656), after a passenger is safely within the vehicle, and before he has found a seat or a location at which he wishes to ride, is held to be negligence. There are cases, of course, where the vehicle was started before the passenger was safely within it; but that is not this case. There are also cases in which the vehicle started with an unusual and extraordinary lurch, jerk, or movement; but that is not the case here; the jury specifically found to the contrary. Appellee talks about the crowded condition of the bus. The jury did not find defendant negligent for that reason, and it does not appear from the evidence that had anything to do with the fact that plaintiff fell. Several of the witnesses who boarded the bus at the same time were finding seats. It is not clearly shown plaintiff could not have found one. More than that, the crowding of the bus at that time of the day was normal. Plaintiff knew it when she started to board the bus; she expected to stand. Appellee cites Lobner v. Street-railway Co., 79 Kan. 811, 101 Pac. 463, where a passenger was pushed off an overcrowded street car and sustained injuries, and it was held his evidence was sufficient to go to the jury, and suggests that perhaps plaintiff fell because she was pushed or crowded off the bus. This is purely speculative. We find no evidence in the record to sustain that theory, it was not alleged as one of the grounds of negligence, and was not found by the jury. We feel compelled to hold there was no showing or finding of defendant’s negligence in any respect and that its motion for judgment on the answers to the special questions notwithstanding the general verdict should have been sustained. The judgment of the court below is reversed with directions to enter judgment for defendant.

The opinion of the court was delivered by Allen, J.: This is an original proceeding in mandamus to compel defendants, the state commission of revenue and taxation, to hear and determine the applications of plaintiffs for authority to make emergency levies for general or maintenance expenses as required by law. The case is before us on a motion to quash the writ. The plaintiffs, the boards of county commissioners of the several counties, in their petition allege: “That heretofore each of said plaintiffs adopted a resolution certifying that, in the opinion of each respective board, the rates of levy fixed for their respective counties are so limited as to be insufficient for the raising of funds necessary to supply the needs of said counties for general or maintenance expenses for the fiscal year of 1940, and that an emergency exists; and each of said boards thereafter filed an application with the commission of revenue and taxation of the state of Kansas for authority to make an additional levy, all pursuant to the authority granted under and by virtue of 79-1969 of the General Statutes of 1935 (or pursuant to section 2, chapter 74, Laws of 1938). “That heretofore and on the 24th day of August, 1939, at the hearing upon the said application of the board of county commissioners of Harvey county, Kansas, one of the plaintiffs above named, the said defendant commission and the defendant commissioners rejected said application and refused to grant any relief thereunder upon the sole ground that said defendants and each of them have no authority to grant any relief to said board of county commissioners of Harvey county, Kansas, because of the action of the legislature in the special session of 1938 at which special session said legislature enacted chapter 74 of the Laws of 1938. “That said defendants also ruled that they would refuse the application of each of the other above-named plaintiffs for the same reason.” Defendants contend that chapter 74, Laws of 1938, expressly repeals G. S. 1935, 79-1969, and restricts the right to make emergency levies for general or maintenance purposes to boards of education in cities of the first class; that if plaintiffs are to be granted the relief requested in their application this court must hold chapter 74, Laws of 1938, unconstitutional. Does chapter 74 of the 1938 Special Session Laws restrict the authority of the defendants to grant the applications of the respective plaintiffs? Section 79-1969 of the General Statutes of 1935 gave the defendants authority to grant all taxing units permission to make tax levies which would exceed the statutory aggregate limit, if an emergency existed, upon application being made for such purpose and after public notice of the time fixed for the hearing thereon. The legisla ture, in the special session of 1938, passed House Bill No. 56, entitled “An act relating to tax levies for school purposes in' cities of the first class, amending sections 79-1954 and 79-1969 of the General Statutes of 1935, and repealing said original sections.” This last-mentioned statute contained four sections. The first section contained the amendment to section 79-1954 of the General Statutes of 1935. The original section and the section as amended related entirely to the rates of levy to be imposed for school purposes by governing bodies of boards of education in cities of the first class. Section 2 of the act amended section 79-1969 of the General Statutes of 1935. It is a verbatim reenactment of the old-section with the exception of the addition of the following provisions: “Provided, That no such authority shall be exercised by the governing body of any board of education in the cities of the first class having a population of more than 90,000 and less than 115,000.” Section 3 of the act expressly repeals section 79-1954 and section 79-1969 of the General Statutes of 1935. Section 4 recites that the act shall take effect and be in force from and after its publication in the official state paper. G. S. 1935, 77-201, provides: “In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute: “First. 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 continua.tion of such provisions, and not as a new enactment.” As stated, section 2 of chapter 74, Laws of 1938, is a verbatim copy of G. S. 1935, 79-1969, with the exception of the proviso mentioned. By the very terms of 77-201 the former section 79-1969 was continued in force. See Chicago, R. I. & P. Rly. Co. v. Percival, 140 Kan. 508, 509, 37 P. 2d 686; State v. Brown, 146 Kan. 525, 527, 73 P. 2d 19. As it is conceded section 79-1969 gave the defendants authority to make the order in question, they now have the same power and authority if the act of 1938 is otherwise valid. It is contended that the act of 1938 violates section 16, article 2, of the constitution, for the reason that it contains more than one subject in the title. The official title of chapter 74, Laws of 1938, reads: “An act relating to tax levies for school purposes in cities of the first class, amending sections 79-1954 and 79.-1969 of the General Statutes of 1935, and repealing said original sections.” In Brewer v. City of Pittsburg, 91 Kan. 910, 911, 912, 139 Pac. 418, where a similar question was before this court, it was said: “The appellant insists that the subject of the act is not clearly expressed in its title as the constitution requires. (Const., art. 2, sec. 16.) The title is, ‘An act amending and repealing section 1009 of the General Statutes of 1909, and repealing said original section, insofar as it applies to cities of 25,000 or less.’ It is first contended that a reference to the original section by chapter and section without stating something of the matter to which it relates is not sufficient. It is the rule in Kansas that the constitutional provision as to the title of acts shall be broadly and reasonably interpreted, and under the liberal rule of construction generally applied it is enough if the title to the amendatory act refers to the original act by chapter and section of an authorized publication of the statutes. The question was expressly determined in John v. Reaser, 31 Kan. 406, 2 Pac. 771, where the challenged title was, ‘An act amendatory of and supplemental to chapter 25 of the General Laws of 1868.’ It was held that that title, which is no more definite than the one under consideration, sufficiently stated the subject matter of the act. Amendatory acts with such titles are not uncommon in this state, and those which have been challenged on this ground and which have been otherwise sufficient have been upheld. (Philpin v. McCarty, Supt., &c., 24 Kan. 393; Burroughs v. Comm’rs of Norton Co., 29 Kan. 196; Ireton v. Laubner, 9 Kan. App. 561, 58 Pac. 278; see, also, 36 Cyc. 1029.) If the amendatory act is not germane to the original act or its provisions are not fairly included in the- title to the original act, that part of the amendatory act not within the title of the original would be invalid. (The State, ex rel., v. Bankers’, etc., Association, 23 Kan. 499; The State, ex rel., v. Pierce, 51 Kan. 241, 32 Pac. 924.) The new matter in the amended act is germane to the subject of the original act, and the title of the original is sufficiently broad to cover everything embraced in the amended act.” See, also, State v. Butler County, 77 Kan. 527, 94 Pac. 1004; Wolfe Tire Cory. v. Stanton, 133 Kan. 713, 716, 3 P. 2d 698. The constitution requires that no bill shall contain more than one subject. The act of 1938 deals with one subject, the limitations of tax levies, and does not, therefore, contravene the constitutional provisions. We think the act of 1938 was a valid enactment and that under its provisions the defendants had ample authority to grant the applications of the respective plaintiffs. The motion to quash is overruled, and the writ of mandamus is allowed. Harvey and Smith, JJ., not sitting.

The opinion of the court was delivered by Smith, J.: This was an action on a life insurance policy. Judgment was for plaintiff. Defendant appeals. The petition alleged the existence and addresses of the parties; that defendant issued the policy in the amount of $1,000 on the life of deceased on February 3, 1937; that plaintiff was named beneficiary in the policy; that the insured died of natural causes on August 12,1937; that proof of death had been furnished and demand for payment made and refused. Judgment was asked for the face of the policy. In its answer the defendant admitted the issuance of the policy, the death of insured, the demand for payment, its refusal, and alleged that defendant had tendered to plaintiff a payment of three, quarterly premiums, with interest, and that this tender had been refused by plaintiff. The answer further alleged that defendant denied any liability under the policy because of fraudulent answers on the part of insured to certain questions asked her at the time she made application for the policy; that insured knew at the time she made application for the policy and at the time of its delivery to her that she had made fraudulent answers in her application; that defendant did not know that these answers were false, and would not have issued the policy had it been informed of the fraud on the part of insured when the application was executed; that these fraudulent answers were made with intent to defraud the defendant. The premium paid was tendered into court. Defendant also filed a cross petition, in which it alleged that it issued the policy, relying solely on the answers and representations made by insured at the time she made the application; that defendant delivered the policy still believing these answers to be true; that after issuing the policy and delivering it, and after the death of insured, defendant learned that the insured had made false and fraudulent answers to questions propounded to her; that having learned of the fraud on the part of insured defendant denied liability on the policy and tendered to plaintiff the premium paid; that the fraud practiced on defendant by the insured made the policy void at its inception, and it was so considered by defendant at the time settlement was refused. The cross petition then alleged that for the purpose of inducing the defendant to issue the policy the insured made, among other statements, the following: “18. Have you ever had any ailment or disease of: “(A) Brain or nervous system? No. “(B) Heart or lungs? No. “(F) Have you ever consulted a physician for any ailment or disease not included'above? No. “23. State names and addresses of physicians you have ever consulted aDd give the occasion by reference to question numbers and letters above. None. “26. I hereby agree and declare on my own behalf and in behalf of any person who may have or claim any interest in any policy issued herein: “(1) That each of the statements contained herein is full, complete, true, and without exception, unless such exception is noted, and made as inducements to the execution of a policy of life insurance for which this is an application. “(2) That the proposed contract shall not be effective until the policy has been issued and the first premium actually paid and accepted by the company and this policy has been delivered to and accepted by me in my lifetime, and while in good health, . . . “29. Signature of the person applying for insurance:” The cross petition further alleged that insured knew at the time of her application for the policy that she had for some time suffered an ailment of the heart and the stomach; that she knew of her own knowledge that for sixteen months or more prior to January 26, 1937, when the application was executed by her that Dr. E. W. Irish had on numerous occasions treated her for attacks of stomach trouble and had advised her that she had an ailment of the heart; that insured knew at the time the policy was delivered to her that she was not in good health; that with this knowledge she answered the questions as quoted in the application and accepted delivery of the policy; that these answers were made with intent to deceive the defendant and .the policy would not have been issued had defendant known the truth; that the answers to the questions were false and fraudulent representations and the acceptance by insured of the policy when she was not in good health made the policy void at its inception. The prayer was that the policy be rescinded. For a reply the plaintiff filed a general denial and for an answer to the cross petition plaintiff denied that the insured made false answers in her application and denied that insured had ever been advised that she had a heart ailment prior to January 26, 1937, and denied that she had consulted a physician and concealed it. The cause was submitted to a jury, which returned a verdict for the plaintiff for the face value of the policy. Special questions were asked and answered, as follows: “1. Do you find that Clara C. Jackson, the insured, prior to January 26, 1937, the date of the medical examination for the insurance policy involved in this suit, consulted with E. W. Irish as to her physical condition? A. No. “2. If your answer to the above question is in the affirmative, then state on what dates she had such consultations, or the period of time over which they were had. A. - “3. Did Clara C. Jackson tell Dr. James G. Stewart, on August 10, 1937, that she had had trouble with her heart for several years? A. No. “4. Do you find that Clara C. Jackson was in good health at the time of the delivery of the policy in question, to wit, February 3, 1937? A. Yes. “6. Do you find that Clara C. Jackson, the insured, in April of 1936 and September of 1936, received chiropractic treatments? A. Yes.” A motion to set aside certain of these answers because they, were contrary to and not supported by the evidence was sustained as to question number one and overruled as to the others. A motion by the defendant for judgment notwithstanding the verdict was overruled. Judgment was entered in the amount of the verdict. The appeal is from that judgment. One of the grounds in the motion for a new trial was that the verdict was contrary to the evidence. This was also the ground on which defendant asked that the answers to the special questions should be set aside. The first argument of defendant on appeal is that the trial court erred in denying the above motions because the evidence conclusively showed that the insured made false and fraudulent representations when she stated in her application that she had never consulted a physician. There can be no doubt that insured had consulted a chiropractor a few months before she made her application. There was evidence of this and the trial court set aside the negative answer to question No. 1 on account of this evidence. Defendant devotes a considerable part of its brief to an argument that the lulling of the court on this motion was erroneous because the word “physician” as used in the application included chiropractor. We have concluded that it will not be necessary to decide that question. In order to decide the question of the effect of the answer of insured to question No. 1, we must consider the testimony of Dr. E. W. Irish. This witness testified that he was a chiropractor; that the insured consulted him on March 24, 26 and 31 of 1936, several times in April and again on March 13, 1937. On these occasions she complained to him of her physical condition; that he examined her and diagnosed her trouble as acute gastritis; that she never quit her work and the treatments he gave her as a chiropractor were adjustment and massage on the abdomen. It will be noted that the insured made her application on January 26, 1937, just a few months after she had consulted chiropractor Irish. A pertinent statute to be considered on this question is G. S. 1935, 40-418. That section reads as follows: “No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.” There can be no doubt that this insured died of myocarditis. Whether acute or chronic will be discussed later. There is no such a connection between acute gastritis and myocarditis as to enable us to say that the gastritis for which she was treated by the chiropractor actually contributed to the contingency from which insured died. We are not favored with a definition in the record as to what gastritis is. In the absence of some such showing we cannot say there is any such connection at all. The question is whether or not the insured made the answers fraudulently. In Day v. National Reserve Life Ins. Co., 144 Kan. 619, 62 P. 2d 925, this court considered a case where the insured had answered in the negative when asked whether he had ever consulted a physician. This court held that the answer was not a warranty and that good faith in making the statement was sufficient even though it was incorrect as a matter of fact. (See, also, Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622.) In addition to what has been said, the insured was not asked whether she had consulted a chiropractor. Furthermore, she submitted to an examination by a physician in the employ of the defendant and this physician approved her application. While an argument is made that the word “physician” as used in the application meant “chiropractor” under our statutes and decisions, still it would not do to presume that the insured thought the- one word included the other so as to make her guilty of fraud under the circumstances we have here. The defendant next argues that the evidence conclusively shows that the insured made false and fraudulent representations when she stated in her application that she had never had any disease of the heart. This argument is based largely on the testimony of Irish, that he told her at the time she consulted him that she had a nervous heart. This record does not disclose satisfactorily just what a nerv ous heart is. At any rate, since a consideration of this question requires a rather detailed examination of the testimony, we will deal with it, together with the argument that the evidence conclusively shows that insured was not in good health at the time the policy was delivered. The latter depends upon a provision in the policy, which reads as follows: ¡ “This policy shall not take effect until the first premium hereon shall have been actually paid and the policy actually delivered to the insured during the lifetime and good health of the insured.” This policy was issued February 3, 1937, and insured died August 12, 1937. Defendant claims that the evidence compels a conclusion that insured was not in good health at the time the policy was issued and delivered. This contention requires an examination of the testimony. We have seen that the chiropractor examined and treated her for gastritis for a few months before the policy was issued. There is no contention here, however, that insured was ill with gastritis when the policy was delivered. It is the testimony of the chiropractor that insured had a fast heart or nervous heart, to which defendant calls attention here. Our attention is called to that testimony and we are asked to consider it in connection with that of the last doctor who saw insured, and to reach a conclusion thereon that insured was suffering with the malady that caused her death at the time the policy was delivered. There seems to be no doubt that insured died from myocarditis. The trouble with which we are confronted is that there are two types of myocarditis — acute and chronic. If insured died of chronic myocarditis then she was probably suffering with it when the policy was delivered. If, on the other hand, she died of acute myocarditis then she might have been in good health at that time. On this question we have the testimony of a heart specialist who saw insured during the afternoon of the day she died. This doctor read .from his office memorandum that insured testified “heart has been fast periodically.” He further testified that she stated to him that she had always had periods of rapid heart; that on the occasion of this visit she was suffering from a heart fibrillation; that she had bad teeth and defective gums. This witness made a very fair and careful statement of the action of the heart and of the difference between chronic and acute myocarditis. It would add but little to this opinion to set out this testimony in detail. The witness testified that acute myocarditis might be caused by infection from badly infected teeth or rheumatic virus; that the only positive way to distinguish the two types was by a post-mortem examination of the heart and that was not done in this case; that if chronic myocarditis had existed for any length of time there would have been dropsy of the feet, and there was none in this case. He also testified that myocarditis has no relation to pain in the stomach and that insured could have been in splendid health in January, 1937, and still have died of acute myocarditis. There was other testimony from non-medical witnesses that the appearance of insured had been that of a healthy person and that she worked regularly as a waitress in a restaurant. In order for us to hold that there was no substantial evidence to support the verdict for the plaintiff in this case it would be necessary for us to accept all the testimony and opinions of Doctor Stewart, the specialist, detrimental to the plaintiff and disregard all his other testimony and a great deal of other evidence. We cannot do that. We must give the plaintiff the benefit of all the inferences and conclusions that may be drawn from the evidence. This record required the submission to the jury of the question'of the health of the insured at the time of the delivery of the policy. (See Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538, also Van Ross v. Metropolitan Life Ins. Co., 134 Kan. 479, 7 P. 2d 41.) An argument is made by defendant that the answers of the jury to certain special questions should have been set aside because they were not sustained by the evidence. What has already been said here disposes of that argument. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Allen, J.: The action is one in replevin for the return of certain machinery and equipment sold under the terms of an order and conditional sales contract dated November 3, 1934. The machinery was described in the contract: “Three (3) Hoffman Amico stretchers 54 x 180 less unit heaters, but with pipe coils and present rods and bars, Reference 15040, 15041, 15042. “Two (2) 30x48 Vorclone low front motor driven by Dry Clng. Washers $2,265 and return of “One Vorclone 30x48 U Shape D. C. washer motor belted, complete with motor and belts and starter and one American 32x54 brass cylinder and shell washer motor belted, complete with motor and belts and starter.” Defendant’s second amended answer contained a general denial, and a counterclaim, which in substance alleged: That on August 11, 1933, defendant purchased from plaintiff certain machinery, and that the machines were defective 'in construction, operation and design and were incomplete, inefficient and unsatisfactory and could not be used in the defendant’s business, and thereupon the plaintiff removed the machines and attempted to repair and reconstruct them and had them in its possession for a long period of time. It was alleged that while the machines were thus in the possession of the plaintiff and on November 6, 1934, the defendant purchased from plaintiff the machinery described in plaintiff’s petition, above described. It was alleged that three of the machines purchased from the plaintiff and replevied here were not reasonably fit for the purpose for which they were designed and purchased; that the three machines were the same and identical machines, except for certain replacements listed, as those ordered by defendant under contract dated August 11,1933, which machines had not been satisfactory and could not be used; that the remaining two machines purchased from plaintiff and replevied here were satisfactory and that the price for these two satisfactory machines was and is the sum of $2,300; that the defendant has expended the following sums of money on the five machines: Return of 11 Hopkins vertical stretchers, $1,100; cash paid under contract of August 11, 1933, $100; credits allowed on or about November 6, 1934, $1,535; cash paid on or about November 6, 1934, $50; cash paid when notified to ship, $200; installments paid as set out in paragraph 12, $1,154.36; freight and installation charges paid, $355.38; total, $4,494.74. The plaintiff replevied all five of the machines, and the defendant prays the return of the two satisfactory machines and a judgment for $2,194:74 damages, or in lieu thereof a judgment for $4,494.74, the total sum expended and for which the defendant has nothing to show, notwithstanding the breach of the implied warranty by plaintiff. The plaintiff’s demurrer to this answer and counterclaim was overruled. A reply was filed. Plaintiff filed a motion for judgment on the pleading, which the court overruled. This appeal is from the order overruling the demurrer and from the order overruling the motion for judgment on the pleadings. It is asserted that the matters alleged and set up by defendant are not a proper subject of counterclaim. Our statute G. S. 1935, 60-711, provides: ‘The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein.” In Pomeroy’s Code Remedies (5th ed.), section 613, in discussing a similar code section, it is said: “It mentions three alternatives — causes of action: (1) arising out of the contract set forth in the complaint, or (2) arising out of the transaction set forth in the complaint, or (3) connected with the subject of the action. Unless we would accuse the legislature of the most absurd and misleading tautology, this language was intended to affirm that -there may be counterclaims which do not arise out of contract. Arising out of the ‘transaction’ and ‘connected with the subject of the action’ are placed in opposition to 'arising out of contract.’ ” Similar comment on the counterclaim statute is found in Phillips on Code Pleading (2d ed.), section 374. In sections 376 and 377 the author refers to “transaction” and “subject of action” in the statute as follows: “The code has enlarged the field in which the defendant is allowed affirmative relief by adding thereto a class of counterclaims which arise out of the transaction which is the foundation of the plaintiff’s claim. This kind of counterclaim differs from one of the former class in. that it may be asserted in an action not founded on contract, and it may not itself arise out of.contract. The term ‘transaction’ is broader and more comprehensive than ‘contract.’ A contract is a transaction; but a transaction, while it may embrace a contract, may also relate to matters entirely in tort. Fraud in inducing the execution of a contract frequently forms the subject of a counterclaim of this kind. “Another class of counterclaims are those ‘connected with the subject of the action.’ These bear a more remote relation to the plaintiff’s action than do those of the other two classes. In order to come within this class it is not necessary that a demand of the defendant against the plaintiff shall be a demand growing out of contract, nor must it arise out of the same transaction upon which the plaintiff’s claim is based; it is requisite only that it shall be connected with the subject of the plaintiff’s action. The ‘subject of the action’ means, in this connection, the thing in respect to which the plaintiff’s right of action is asserted, whether it be specific property, a contract, a threatened or violated right, or other thing concerning which an action may be brought and litigation had.” That a counterclaim or cause of action for affirmative relief may be filed by the defendant in a replevin action is well settled in this state. (Gardner v. Risher, 35 Kan. 93, 10 Pac. 584; Clement v. Field, 147 U. S. 467, 13 S. Ct. 358, 37 L. Ed. 244; General Refrigeration Sales Co. v. Roberts, 145 Kan. 333, 65 P. 2d 269.) Under our statute G. S. 1935, 60-102, the provisions of the code of civil procedure and all proceedings under it shall be liberally construed, and this command applies to the counterclaim statute to the end that all controversies may be adjusted in a single action. Our counterclaim statute does not require that the counterclaim itself shall be founded in contract, or arise out of the contract set forth in the petition; it is sufficient if it arises out of the transaction set forth in the petition, or be connected with the subject of the action. The contract set forth in the petition was dated November 4, 1934. The counterclaim alleged that on August 11, 1933, the defendant had purchased from plaintiff certain machinery which proved to be defective in construction and could not be used in defendant’s business; that plaintiff removed the machines and attempted to repair them, and that they were in plaintiff’s possession when the contract of November, 1934, was entered into; that some of these machines were to.be returned to plaintiff in the purchase of the new machines. The defendant by these connected contracts was attempting to secure machines to run his business. This course of dealing leading to the one end was clearly a “transaction” within the meaning of the statute as that term has been construed by this court, and certainly was “connected with the subject of the action.” Any express warranties in the contract did not preclude the existence of an implied obligation on the part of the plaintiff to deliver machinery fit for the purpose for which it was designed and made. (Oliver Farm, Equipment Co. v. Rich, 134 Kan. 23, 4 P. 2d 465; J. W. Jenkins Sons’ Music Co. v. Stehley, 139 Kan. 226, 31 P. 2d 33.) The counterclaim states a cause of action against the plaintiff on the implied warranty to furnish machinery fit for the purpose for which it was designed and for which it was sold. We have considered various other points discussed in the briefs, but do not think they call for extended comment. The judgment is affirmed.

Swinehart, J.: This is an appeal from an order construing the residuary clause of the last will and testament of Dr. John S. Coleman, who died August 3, 1975. The case originated in the probate court of Sedgwick County. It was transferred to the district court pursuant to K.S.A. 1977 Supp. 59-2402a. At that hearing the district court was asked to construe the residuary clause to determine which of five parties was entitled to receive the residue of Dr. Coleman’s estate. The five parties are Sterling College, The Way College of Emporia, Phillip A. Little, American Cancer Society and Newton Presbyterian Manor, Inc. The will in question was executed on August 26, 1965, and a codicil (which is irrelevant to this appeal) was executed on January 19, 1968. It is unnecessary to set forth the will in its entirety. There were a number of specific bequests and devises made in the will. One clause contains six bequests to friends and relatives of Dr. Coleman, ranging in amounts from $1,000 to $5,000. This clause provides that if any of the named legatees predecease Dr. Coleman, the bequest shall lapse and pass under the residuary clause. The next clause contains a $10,000 bequest to the First Presbyterian Church of Wichita, where Dr. Coleman was a member and had served as a deacon and trustee for many years. Another clause establishes a $30,000 trust fund for scholarships at the University of Illinois Medical School. The next clause devises two pieces of real estate, one to Dr. Coleman’s sister and one to his nephew, Phillip Little. Phillip Little is given a life estate in a quarter section of land, with the remainder to go to his children. The next clause establishes a $75,000 trust fund to be used for the college education of Phillip Little’s children. Upon termination of the trust, the remainder of the corpus is to be distributed to the residuary legatees in the same proportion as they are to take under the residuary clause. The residuary clause, set out below, is the only one involved in this litigation: “I will and direct my hereinafter named executor to sell all of the rest, residue and remainder of my property, real and personal, at public or private sale, for such prices and upon such terms as it deems adequate, without the necessity of any court proceeding or authority, and my executor is authorized to execute any contracts, deeds, bills of sale, or other instruments necessary or desirable in connection with such sale or sales. When said property has been so converted into cash by my executor and my executor shall have paid the cash bequests herein, then the rest, residue and remainder of said cash shall be distributed as follows: “1. Two-fifths thereof to American Cancer Society, located at 219 East 42nd Street, New York, New York 10017; “2. Two-fifths thereof to the College of Emporia, a Presbyterian educational institution located at Emporia, Kansas; and “3. One-fifth thereof to the Presbyterian Manor, a Presbyterian Home for the aged, located at 1200 East Seventh Street, Newton, Kansas.” This clause, on its face, is clearly and precisely drafted. The problem that gives rise to this appeal is that the College of Emporia, which is bequeathed two-fifths of the residue of the estate, closed its doors to students on December 31, 1973. The parties submitted a stipulated set of facts to the trial court. Oral testimony was also presented relating to the stipulated facts. The Way College of Emporia, which purchased the College of Emporia’s physical assets and corporate charter, contended that it was entitled to the two-fifths share bequeathed to the College of Emporia. Sterling College urged the trial court to apply the doctrine of cy-pres to effect substitution of it as a two-fifths beneficiary under the clause. Phillip Little contended that the bequest had lapsed and that a lapsed residuary bequest should pass by intestacy. He is Dr. Coleman’s only heir at law. The American Cancer Society and Newton Presbyterian Manor, Inc., the other residuary legatees, argued that the bequest to the College of Emporia should be divided proportionately between them. Evidence presented at the trial shows that the College of Emporia was a Presbyterian liberal arts college. It offered traditional liberal arts courses, as well as some courses in Christian education. It was accredited and was authorized by the State Board of Education to grant academic degrees. It was affiliated with the Synod of Kansas of the Presbyterian Church of the United States of America. The College of Emporia had suffered financial problems for many years before its closing. Evidence introduced at the trial shows that in the early sixties, the college conducted an extensive fund-raising campaign. Numerous appeals were made to the members of the First Presbyterian Church of Wichita, of which Dr. Coleman was a member. Despite the College of Emporia’s efforts, however, it was forced to close at the end of 1973. That same month, the College’s corporate charter was cancelled for failure to file annual reports and pay annual fees. Subsequently, the physical assets of the College of Emporia were sold to an organization called The Way International. The Way is a fundamentalist sect devoted to the study of the Bible. The Way College, unlike the College of Emporia, is not an accredited school, nor does it teach any courses other than Bible courses. It is not authorized to grant degrees. In the briefs, this Court is informed that The Way is still trying to convince the State Board of Education to accredit it. To date, it appears to have been unsuccessful. Besides buying the physical facilities of the College of Emporia, The Way also purchased its corporate existence. On October 8, 1974, the College of Emporia’s corporate charter was reinstated. On March 20, 1975, amended articles of incorporation were filed. All references to the Synod of Kansas of the Presbyterian Church have been deleted. The Way stipulates that it is in no manner affiliated with the Presbyterian Church. Sterling College, which lays claim through the doctrine of cy-pres to the portion of the Coleman estate which would have gone to the College of Emporia, is in fact very similar to the College of Emporia. It is a small four-year liberal arts college, accredited and authorized to grant degrees, and it is under the supervision of the Synod of Kansas of the United Presbyterian Church of the United States of America. After considering the evidence, the trial court ruled that the American Cancer Society and the Newton Presbyterian Manor, Inc., were entitled to share proportionately the lapsed legacy. The Way College, Sterling College and Phillip Little appeal, contending respectively that (1) the court erred in ruling that the gift lapsed, because The Way College is the College of Emporia’s successor and is therefore entitled to the bequest; (2) the court erred in refusing to apply the doctrine of cy-pres; and (3) the court erred in ruling that the lapsed residuary legacy should pass to the other residuary legatees rather than Dr. Coleman’s heir at law. The appellees, the American Cancer Society and the Newton Presbyterian Manor, Inc., contend on appeal that the trial court’s ruling was correct and should be upheld by this Court. We first consider the argument of The Way College that it is entitled to take the two-fifths share of the residue of the Coleman estate which was bequeathed to the College of Emporia. The argument is based on two contentions: (1) that The Way College, having taken the College of Emporia’s corporate charter, is exactly the same legal entity as the College of Emporia and is therefore entitled to take the bequest; and (2) that the words “a Presbyterian educational institution located at Emporia, Kansas” are words of description, not limitation. The Way cites In re Will of Barker, 162 Ohio St. 531, 124 N.E.2d 421 (1955), in support of the proposition that the phrase “a Presbyterian educational institution” is merely precatory language and does not impose a limitation on the gift. In that case, the Ohio Court of Appeals held that the language “The Christian Church of Chardon, Ohio, as now organized and functioning” should not be interpreted so as to cause a lapse of the testamentary gift, even though the Christian Church of Chardon had consolidated with another church before the date of the testator’s death. The Ohio Supreme Court, affirming the decision of the Court of Appeals, noted that words of limitation impose a condition on the vesting of the legacy, whereas words of description do not. The Way also cites In re Estate of Cribbs, 180 Kan. 840, 308 P.2d 111 (1957), where the Kansas Supreme Court said: “It is also well established that a gift in clear terms cannot be taken away or diminished by later obscure and ambiguous provisions or mere precatory language. To diminish or encumber an absolute gift, it is necessary to find or supply language in the later clause equally as plain and unequivocal as in that of making the gift, expressing an intention to limit the devise already made. (69 C.J. 114, Wills, § 1158; Donohue v. Skinner, 118 Kan. 215, 234 Pac. 1000.) “Words in a will which are merely expressive of a desire or intention on the part of the testator, and are merely advisory or precatory in character, do not amount to a testamentary disposition, or control or alter express dispositions in the will, unless it is apparent that it was the testator’s intention that such words of desire .or intention should be mandatory, and then only to the extent fixed by testator’s dominant purpose. (69 C.J. 78, Wills, § 1132.)” p. 843. Other Kansas cases which stand for the proposition that a clearly stated gift may not be abrogated by implication include Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415 (1966), and In re Estate of Kuhn, 208 Kan. 292, 491 P.2d 937 (1971). In Benelli, the Court held that a will provision which gave a life estate in the house and household goods to the testator’s widow, but provided that the house should be given to the residuary-legatees in the event that she did not wish to live there, did not by implication divest her of title to the household goods also if she did not live in the house. In Kuhn, the Court held that a testamentary provision benefiting all of the testator’s employees who were working for him at the date of his death and who were beneficiaries of the Kuhn Trust No. 2 created a clear, express modification that excluded the plaintiff, who was an employee at the date of Kuhn’s death but who was not a beneficiary of the trust. In 80 Am. Jur. 2d, Wills § 1549, p. 610, it is said: “The intention to create a condition in a will must clearly appear, for the courts will not construe a testator’s words as importing a condition if a different meaning can be fairly given to them. . . .” In spite of the strength of the rule that the intent to create a condition or limitation to the vesting of a gift must clearly appear in a will, we cannot accept The Way’s argument that the language is precatory. When Dr. Coleman penned the words “a Presbyterian educational institution” he clearly wished to limit the gift in two respects: the gift was to go to a Presbyterian institution and that institution was to be devoted to educational purposes. Although The Way College is an educational institution, it fails to meet the other necessary condition, because The Way specifically disavows any affiliation with the Presbyterian Church. Furthermore, even if this language is deemed to be only words of description, it is obvious that The Way College does not fit the description. It is an entirely different educational institution, having changed the faculty, course offerings and religious affiliation. We cannot accept The Way’s argument that the fact that it is operating under the corporate charter formerly held by the College of Emporia, which it revived and reinstated pursuant to K.S.A. 17-7002, means that it is the same legal entity and therefore legally entitled to the bequest. In opposition to The Way’s position on this point, other parties have cited Gladding v. Saint Matthew’s Church, 25 R.1.628, 57 A. 860 (1904), and Duncan v. Higgins, 129 Conn. 136, 26 A.2d 849 (1942). Both of these cases involve charitable religious corpora tions which merged or consolidated with other charitable corporations before the death of the testators. In both, it was held that the original organization no longer existed and that the new corporation, created by the merger, could not take under the will. The Way seeks to distinguish these cases because they involve merger, and here there was no merger. This analysis makes little sense, for the effect of what happened in this case was to completely obliterate the College of Emporia. The Way also relies on K.S.A. 17-1738, which provides that the merger or consolidation of one or more charitable corporations shall not cause the lapse of a gift, devise or bequest. The fallacy of this argument lies in the fact that there was no merger between The Way and the College of Emporia, so the statute is inapplicable. A Kansas case which is pertinent to the question is Daughters of American Revolution v. Washburn College, 160 Kan. 583, 164 P.2d 128 (1945). In that case the D.A.R. had established a scholarship trust fund at Washburn College. When Washburn College became Washburn Municipal University, the D.A.R. sought to take back the trust fund. The Supreme Court, relying on the parties’ stipulations that Washburn Municipal University was conducting the same educational institution, with the same functions, advantages and opportunities as did Washburn College, refused to terminate the trust fund. The case is clearly distinguishable from the one at hand, for much more than a name change was involved here. The question is controlled by the principle enunciated in People v. Braucher, 258 Ill. 604, 101 N.E. 944 (1913), where it was said: “. . . To give the fund to some religious organization or church inculcating religious beliefs differing from those of the Universalist society would not be carrying out the intentions of the donors. . . .” p. 610. The Kansas Supreme Court has voiced a similar rule in In re Estate of Freshour, 185 Kan. 434, 345 P.2d 689 (1959), when it said: “. . . As the term ‘church’ imports an organization for religious purposes, a gift to a church or a church society by name, without declaration or restriction as to the use to be made of the subject matter of the gift, must be deemed to be a gift for the promotion of the purposes for which the church was organized. . . pp. 443-444. It is clear that Dr. Coleman intended to promote the purpose for which the College of Emporia existed: liberal arts education, carried out under the auspices of the Presbyterian Church. To permit The Way College, which provides neither a liberal arts education nor Presbyterian leadership, to take the bequest would indeed be, as the trial court stated, an exaltation of form over substance. We next consider the argument presented by Sterling College that the trial court erred in refusing to apply the doctrine of cy-pres to the lapsed gift, substituting it for the College of Emporia as a beneficiary under the Coleman will. The cy-pres doctrine has been recognized in a number of Kansas cases, but has yet to be applied in a reported case. Sterling College submits that this is because Kansas Courts have not been presented with a proper set of circumstances to justify application of the doctrine, but it argues that the case at hand does present such a set of circumstances. The doctrine of cy-pres permits a court to implement a testator’s intent and save a gift to charity by substituting beneficiaries when the named charitable beneficiary is unable to take the gift. In order for the doctrine to apply, several conditions must be met. First, the gift must be to a charitable organization for a charitable purpose. Second, it must be impossible, impractical or illegal to carry out the donor’s stated charitable purpose. Finally, it must appear that the donor had a general charitable intent. The fundamental concept of the doctrine is that a donor may have a general charitable intent, and that the particular charitable institution he has designated as recipient of the gift is only an agent for effectuating that gift. Therefore, when it becomes impossible for the gift to take effect exactly as the donor specified, the court must look for another agent, as nearly like the designated one as possible, that will receive the gift and effectuate the general charitable intent expressed in the will or gift instrument. In the case at hand, it is indisputable that the gift to the College of Emporia was a gift to a charitable institution for a charitable purpose. It is also beyond doubt that it is impossible for the College of Emporia to take the gift. Further, there appears to be no disagreement that if the doctrine of cy-pres is to be applied, Sterling College is the logical recipient, for it is the only other Presbyterian liberal arts college in the state of Kansas, and its curriculum, philosophy and educational status is almost identical to that of the College of Emporia. However, the question is whether Dr. Coleman had a general charitable intention to benefit Presbyterian higher education, or whether he had a narrow, special intention to benefit the College of Emporia, and no other Presbyterian college. Sterling College asserts that the modern tendency is to presume a general charitable intent in any charitable gift, and to require that this presumption be specifically negated by either the gift instrument or extrinsic evidence. Bogert, Trusts & Trustees, § 436 (rev. 2d ed. 1977); Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973); Montclair Nat. Bk. & Tr. Co. v. Seton Hall Col. of Med., 90 N.J. Super. 419, 217 A.2d 897 (1966). No Kansas cases have been located in which the Court applied cy-pres to substitute charitable donees. The doctrine is recognized in the state, however. In Shannep v. Strong, 160 Kan. 206, 160 P.2d 683 (1945), the Court discussed the doctrine in some detail before deciding that it should not be applied. In that case, the testator made specific bequests to the Methodist Episcopal Church and the United Brethren Church in Burns. After the Burns United Brethren Church ceased to exist, another Brethren Church in the area asked the Court to apply the doctrine of cy-pres to transfer to it title to the land devised to the Burns church. In determining that the testator’s intent was to benefit two local churches in his old home town, rather than to create a trust for general charitable, religious purposes, the Court considered the following factors: the bulk of his estate was given to his wife, not charity; he did not give the church the land outright, but rather created a trust with a local resident as trustee; he made no mention of the governing bodies of the two churches, but rather specifically designated the local churches as beneficiaries; and he had spent most of his life as a farmer in the small community at Burns. On the basis of these facts, the Court assumed he intended to benefit his friends and neighbors in the community through benefiting the local churches. Sterling College urges this Court to find that Dr. Coleman did in fact intend to benefit Presbyterian higher education in general by the bequest to the College of Emporia, and thus to find that the doctrine of cy-pres should be applied. Sterling College points to the following facts in support of this contention: 1. The will contains no gift-over or reversionary provisions, which has been considered a factor evincing a general charitable intent. In re Estate of Tomlinson, 65 Ill. 2d 382, 359 N.E.2d 109 (1976). 2. The gift was made to the College of Emporia by name, and a gift made to a charity by name, without specification, reservation or limitation as to its use is presumed to have been made for the objects and purposes for which the charity was founded. In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949); In re Estate of Freshour, supra. 3. The bulk of the Coleman estate was bequeathed to charities ($600,000 in the residue, $10,000 to the First Presbyterian Church in Wichita, $30,000 to the University of Illinois Medical School), which has been held to be an indication of general charitable intent. Shannep, supra; Miller v. Mer.-Safe Dep. & Tr. Co., 224 Md. 380, 168 A.2d 184 (1961). 4. Dr. Coleman made specific bequests and devises to family and friends, thus indicating that he wanted what had not been set aside to individuals to be used for charitable purposes. 5. Several will provisions indicate that Dr. Coleman was interested in Presbyterianism and higher education. He made bequests to two Presbyterian institutions other than the College of Emporia - the Presbyterian Church in Wichita and the Presbyterian rest home in Newton. Will provisions that evince an interest in higher education are the bequest to the University of Illinois Medical School and the educational trust for Phillip Little’s children. The trust provisions specify that the funds can only be used at accredited colleges. Thus, Sterling reasons, the words “a Presbyterian educational institution” are a clear expression of a general intent to benefit Presbyterian higher education, and Dr. Coleman’s intent can best be effectuated by giving the money to the only other Presbyterian liberal arts college in the state. 6. Extrinsic evidence shows that Dr. Coleman had no special personal relationship to the College of Emporia, other than the fact that he was probably made aware of its financial need through the fund drive conducted in the early sixties. In fact, there is no evidence that Dr. Coleman had any special personal relationship with any of the three named residuary legatees. This, Sterling College argues, is evidence that he had a general intent to benefit charity, rather than a desire to benefit these particular institutions. Balanced against these facts which favor the finding of a general charitable intent is one crucial fact which the court below relied upon in ruling that there was no general charitable intent. That is the fund drive conducted by the College of Emporia in the early sixties. Dr. Coleman, being very active in his church’s affairs during that period, was without doubt aware of and concerned about the financial plight of the college. The fact that his will was executed in 1965, shortly after the fund-raising campaign, bolsters the theory that he named the College of Emporia as a residuary legatee with the specific thought of aiding that single, particular Presbyterian college in its time of financial hardship. Also, we note that although there was no evidence of a special personal relationship between Dr. Coleman and the College of Emporia (that is, he was not an alumnus or trustee, for example), there was a special personal relationship between him and the other named beneficiaries which Sterling points to to prove that he was interested in Presbyterianism and higher education. He was very active in the individual church to which he bequeathed $10,000; he had graduated from the University of Illinois Medical School; and the $75,000 college trust fund was for his nephew’s children. These facts lend support to the theory that he wished to benefit the College of Emporia; rather than Presbyterian higher education in general. We decline to create a presumption favoring the application of cy-pres, as Sterling College urges us to do. We think it most consistent with Kansas cases on the question to hold that the entity which seeks application of the doctrine has the burden of demonstrating, either by extrinsic evidence or by evidence within the will itself, that the donor was possessed of a general charitable intent when he chose the named beneficiary. We think that the presumption favoring charitable gifts, the presumption against intestacy and the fundamental duty of a court to implement the intent of the testator adequately protect charitable gifts in this jurisdiction. The evidence presented at the trial, as well as evidence within the will itself, was sufficient to support the trial court’s determination that Sterling College had failed to establish the testator’s general charitable intent. The trial court’s refusal to apply the doctrine of cy-pres will not be disturbed on appeal. The final question to be resolved is to whom the lapsed portion of the residuary estate should go. Phillip Little, the sole surviving heir of the decedent, urges this Court to adopt the position that a lapsed residuary bequest should pass by intestacy. The cases of Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819 (1922), and In re Estate of Soroder, 185 Kan. 74, 340 P.2d 907 (1959), are dispositive of the issue in this jurisdiction. These cases definitely establish that the rule in Kansas is that a lapsed residuary bequest does not pass by intestacy if there are any other members of the residuary class that can take the gift. This doctrine is contrary to the English common law rule, which is still the majority rule in the United States today, that a lapsed residuary gift passes by intestacy. 80 Am. Jur. 2d, Wills § 1695, p. 749. The difference between the Kansas rule and the majority rule was discussed in Corbett, supra. There it was noted that the application of the English rule has the effect of defeating the testator’s intent in nearly every situation where it is applied. In Corbett, the Kansas Supreme Court set forth the law as it exists today and the rule was stated as follows: “We regard the rule that lapsed shares of deceased residuary legatees shall be treated as intestate property as in direct conflict with the one to which this court is definitely committed — that the actual purpose of the testator, so far as it can be ascertained, must be given effect. The presumption against intestacy of any part of the estate is a means of carrying out this policy which is disregarded by taking lapsed legacies out of the residue for the benefit of those who would inherit from the decedent in the absence of a will. The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in the case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all. The statement sometimes made in support of the latter practice — that the share of a deceased residuary legatee cannot fall into the residue because it is itself a part of the residue — appears rather to play upon words than to point out any real difficulty. The result of these views is the approval of the ruling of the court distributing the residue of the estate among the residuary legatees who survived the testator.” p. 386. Little endeavors to distinguish these two cases from the one at hand on the grounds that the residuary legatees in Corbett and Sotvder were individuals, not charitable corporations. We find this distinction to be without merit. The same reasons for dividing the lapsed gift among other residuary legatees (that is, the presumption against intestacy and the courts’ duty to carry out the intent of the testator, who chose to limit or exclude his heirs’ participation in his estate) apply with equal force whether the named residuary legatees are individuals or corporations. The decision of the trial court, dividing the lapsed gift proportionately between the American Cancer Society and the Newton Presbyterian Manor, is affirmed.

Foth, C.J.: This is an appeal from the dismissal as an abuse of the remedy of petitioner’s second motion under K.S.A. 60-1507 to vacate her conviction of first degree murder. Petitioner was convicted in 1974 and appealed. She abandoned her direct appeal following the institution of her first 1507 action, in which she alleged that she had been denied effective assistance of counsel at her trial. The trial court denied that petition and the denial was affirmed in Schoonover v. State, 218 Kan. 377, 543 P.2d 881 (1975), cert. den. 424 U.S. 944, 47 L.Ed.2d 349, 96 S.Ct. 1412 (1976). Petitioner brought this second 1507 action, alleging once again that she was denied effective assistance of counsel at her murder trial. She contended that both unusual circumstances and a change of law justified the successive petition. She also moved that the judge who presided at her trial and heard her first motion disqualify himself. The trial judge first denied the motion to disqualify himself. On the proffered justifications for the successive motion he ruled as a matter of law that there had been no intervening change of law since the first motion. On the remaining issue he conducted an evidentiary hearing to determine whether her retained counsel at the first collateral proceeding failed or were prevented from fully developing the alleged inadequacy of her trial counsel. At the conclusion of this limited hearing, the judge ruled that petitioner had failed to prove unusual circumstances justifying the bringing of a second 1507 motion and sustained the state’s motion to dismiss. She appeals, challenging all three rulings. 1. Her argument for disqualification is that the judge who conducted the trial — and particularly one who has already heard one motion to vacate — cannot impartially evaluate the fairness of the prior proceedings. The argument runs directly contrary to the legislative philosophy behind the enactment of 60-1507, which in 1964 replaced collateral attacks by habeas corpus in the county of confinement with a motion to vacate in the court of conviction. One obvious purpose of the change was to bring into play the familiarity of the original trial judge with the case. Our present procedure was borrowed from and parallels the similar procedure for collateral attack by motion in federal courts by federal prisoners, 28 U.S.C. § 2255. In construing the federal statute the federal courts have been unanimous: Wagner v. United States, 418 F.2d 618 (9th Cir. 1969) (a trial judge is not disquali fied from conducting proceedings on a second motion attacking a sentence because he tried the case against petitioner and passed on the first motion attacking the sentence); Panico v. United States, 412 F.2d 1151 (2d Cir. 1969), cert. den. 397 U.S. 921, 25 L.Ed.2d 102, 90 S.Ct. 901 (1970) (one of the purposes for which Congress passed Section 2255 was to make use of the personal observations of the trial judge of trial occurrences in ruling upon attacks on convictions because of such occurrences); Mirra v. United States, 379 F.2d 782 (2d Cir. 1967) (the fact that personal observations by the judge on trial necessarily enter into his rulings in a 2255 action is not cause for disqualification); Walters v. United States, 404 F. Supp. 996 (S.D.N.Y. 1975), affirmed 542 F.2d 1166 (2d Cir. 1976) (the mere fact that the same judge who presided at trial now rules on the petitioner’s motion is not cause for disqualification. Indeed, one of the purposes of 28 U.S.C. § 2255 was to permit the trial judge, because of his familiarity with the original proceedings and ability to supplement the record, to hear motions collaterally attacking the trial process). Kansas cases and our statute governing disqualification also indicate that prejudice will not be assumed from the fact that the judge presided over other hearings involving the same litigants. For example, in Oswald o. State, 221 Kan. 625, 561 P.2d 838 (1977), the court rejected the argument that an affidavit stating that the trial judge was biased and had made numerous rulings adverse to petitioner in his criminal trial and his first 1507 motion required a change of judges. See also Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972), and Sheldon v. Board of Education, 134 Kan. 135, 4 P.2d 430 (1931), for applications of the rule that previous adverse rulings of a trial judge, although numerous and erroneous, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him. Our statute governing disqualification of judges states that a party may secure a change of judge on account of prejudice by filing an affidavit stating facts and reasons to support an allegation of actual prejudice. K.S.A. 20-311d(b)(5). Petitioner’s only reason was legally insufficient and the trial judge properly denied the motion. 2. Petitioner’s “intervening change of law” argument is based on an evolving judicial doctrine which, she says, holds trial counsel to a higher standard of competence than that previously recognized in Kansas. Her argument is that her trial counsel’s performance may have met the old, lower standard applied in her first 1507 proceeding, but it does not meet the new, higher standard which she says should now be adopted in this state. A leading case in the area is United States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973). There the court noted that its earlier language, requiring counsel’s performance to be so bad as to render the trial a “farce and mockery” in order to be deemed “ineffective,” had since been repudiated as a literal formulation of the applicable test. Rather, it was but “a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness.” (p. 1201.) In that case the court went further and adopted a black-letter standard for judging a defendant’s Sixth Amendment right to counsel: “o defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." (p. 1202. Emphasis in original.) The court went on to say that, in general, counsel should be guided by the American Bar Association Standards for the Defense Function. Similar language may be found in other federal and state decisions. E.g., Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (exercise the customary skill and knowledge which normally prevails at the time and place); United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir. 1975) (a minimum standard of professional representation); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974) (reasonably effective assistance); Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968), cert. den. 393 U.S. 849, 21 L.Ed.2d 120, 89 S.Ct. 80) (list of detailed requirements to be effective); Crismon v. United States, 510 F.2d 356, 358 (8th Cir. 1975) (customary skill and diligence of reasonably competent attorney); Risher v. State, 523 P.2d 421 (Alaska 1974) (lawyer with ordinary training and skill in criminal law); People v. White, 182 Colo. 417, 514 P.2d 69, 72 (1973) (competent counsel well-prepared to serve client); Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515, 517 (1974) (reasonable effectiveness at time services rendered); State v. Kahalewai, 54 Hawaii 28, 30, 501 P.2d 977, 979 (1972) (not errorless, but within range of competence in criminal cases); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975) (reasonably competent assistance of counsel acting as diligent conscientious advocate); State v. Massey, 207 N.W.2d 777, 780 (Iowa 1973) (within range of normal competency); Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974) (ordinary fallible lawyer); People v. Strodder, 394 Mich. 193, 201, 229 N.W.2d 318, 321 (1975) (adequate competence and diligence); State v. Leadinghorse, 192 Neb. 485, 489, 222 N.W.2d 573, 577 (1974) (lawyer with ordinary training and skill in criminal law); State v. Fleury, 111 N. H. 294, 299, 282 A.2d 873, 877 (1971) (reasonable or ordinary performance); State v. Bragg, 221 N.W.2d 793, 802 (N. D. 1974) (within range of competence in criminal cases); State v. Turley, 113 R. I. 104, 318 A.2d 455 (1974) (reasonably effective assistance); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (within range of competence in criminal cases); Ex parte Gallegos, 511 S.W.2d 510, 511 (Tex. Crim. App. 1974) (reasonably effective assistance); In re Cronin, 133 Vt. 234, 239-40, 336 A.2d 164 (1975) (reasonably likely to render and rendering effective assistance); State v. Thomas, _W. Va__, 203 S.E.2d 445 (1974) (effective unless no reasonably qualified attorney would have so acted); State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973) (ordinarily prudent lawyer, skilled in criminal law). In our opinion the supposedly “new” standard now being urged has been applied in Kansas for many years, even though not articulated in the same language employed by some other courts. Analysis will reveal that it was in fact applied in petitioner’s earlier case. The most common wording of the Kansas test is found in Winter v. State, 210 Kan. 597, Syl. 4, 502 P.2d 733 (1972): “The adequacy and effectiveness of an attorney’s services on behalf of an accused in a criminal action must be gauged by the actual representation afforded the accused in its totality. To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. The burden is on the petitioner to show the representation by his attorney was so incompetent and inadequate that the total effect was that of a complete absence of counsel.” Petitioner focuses on the language “wholly ineffective and inadequate” and “complete absence of counsel,” and it is true that such phraseology has found its way into a number of recent opinions. E.g., Oswald v. State, 221 Kan. 625, 561 P.2d 838 (1977); State v. Nelson, 223 Kan. 572, 575 P.2d 547 (1978); Lee v. State, 220 Kan. 221, 222, 552 P.2d 626 (1976); Cook v. State, 220 Kan. 223, 224, 552 P.2d 985 (1976); State v. Carter, 220 Kan. 16, Syl. 5, 551 P.2d 821 (1976); State v. Gross, 221 Kan. 98, Syl. 4, 558 P.2d 665 (1976). Nevertheless, when the facts of those cases are examined it will be seen that counsel’s conduct in each case was found to be both effective and adequate by the standard now urged as new. In Winter itself, for example, trial counsel included some of the ablest members of the criminal defense bar, and the conduct complained of involved strategic and tactical decisions which were wholly unexceptionable. The court there specifically relied on the A.B.A. Standards in gauging the effectiveness of counsel and in allocating decision-making responsibility between client and counsel. Similar reliance may be found in State v. Banks, 216 Kan. 390, 395, 532 P.2d 1058 (1975), and in petitioner’s own previous 1507 proceeding, Schoonover v. State, supra. In petitioner’s prior case the court did quote the entire test from Winter, but a reading of the case as a whole leads to the inescapable conclusion that the court was primarily concerned with the “totality of circumstances” aspect of the test: “The totality of circumstances rule stated in Winter is quoted with approval in State v. Banks, 216 Kan. 390, 532 P.2d 1058. Considering the totality of circumstances as shown by the evidentiary record before us we cannot say that the trial court erred in holding that the petitioner failed to prove that she was denied her constitutional right to the effective assistance of counsel.” (218 Kan. at 383.) This statement followed an analysis of each of petitioner’s claims of inadequacy, in the course of which each claim had been rejected. The basis foNrejecting most of them was that the conduct complained of represented trial strategy adopted by counsel with the full knowledge and consent of the petitioner. As to the contention that her trial counsel’s concededly unprofessional conduct in entering into a contingent fee arrangement with her was alone sufficient to show inadequacy, the court said “[i]n our judgment unprofessional conduct on the part of court-appointed counsel is simply one factor to be considered as a part of the totality of circumstances in making a judicial determination as to whether an indigent defendant has been provided representation by effective counsel.” (218 Kan. at 384.) The A.B.A. Standards were considered not to be controlling, but a useful guide in assessing counsel’s performance. The court went on to say that “the adequacy and effectiveness of counsel provided for an accused as guaranteed by the Constitution of the United States must be measured by the actual representation afforded the accused,” and that “unprofessional conduct may or may not be relevant as criteria for the judicial evaluation of the effectiveness of counsel, depending upon all the circumstances.” (Id. at 385.) The unprofessional conduct referred to, of course, was solely the contingent fee contract. As noted, the other allegations of unprofessional conduct had earlier been considered and rejected. As to those it had already been found that counsel’s performance had been at least reasonably competent. There was nothing new in the standard applied in the first Schoonover case. At least as long ago as Smith v. State, 199 Kan. 293, 429 P.2d 103 (1967), the court was saying: “Incompetency of counsel is a familiar plaint heard with increasing frequency in this post -Gideon era. However, the metes and bounds of legal adequacy have never been precisely defined. On the one hand it has been said that the constitution does not guarantee an accused the assistance of the most brilliant counsel. (State v. Woods, 179 Kan. 601, 296 P.2d 1114; State v. Calhoun, 194 Kan. 378, 399 P.2d 886.) On the other hand this court has pointed out that where an attorney chosen by a defendant is so incompetent or so dishonest or so improperly conducts his client’s case as to amount, in practical effect, to no representation at all, the defendant has been deprived of a fair trial and should be granted relief. (Miller v. Hudspeth, 164 Kan. 688, 192 P.2d 147; Converse v. Hand, 185 Kan. 112, 340 P.2d 874; McGee v. Crouse, 190 Kan. 615, 376 P.2d 792.) We have stated also that the law requires honest, genuine and loyal representation on the part of legal counsel. (State v. Calhoun, supra; Call v. State, 195 Kan. 688, 408 P.2d 668, cert. den., 384 U.S. 957, 16 L.Ed.2d 552, 86 S.Ct. 1581.) “Between the boundaries thus drawn there is a considerable area of uncertainty which we shall not attempt at this time to explore in depth. . . .” (p. 294. Emphasis added.) The court thus recognized that “honest, genuine and loyal” representation — though not the most brilliant — would meet Sixth Amendment standards, while incompetence amounting to “no representation at all” would clearly not. It also recognized a gray area between the two bounds where the totality of the representation had to be considered. The theme was picked up in State v. Brown, 204 Kan. 430, 464 P.2d 161 (1970): “The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed. (Johnson v. State, 203 Kan. 947, 457 P.2d 181; State v. Wright, 203 Kan. 54, 453 P.2d 1.) On the other hand, where an attorney is so incompetent or so dishonest or so improperly conducts his client’s case as to amount, in practical effect, to no representation at all, the defendant is deprived of a fair trial and is entitled to relief. . . .” (p. 432.) In Brown the court formulated the “totality” concept in these words: “The effective assistance of counsel cannot be equated with the successful assistance of counsel. . . . The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. . . .” (p. 435.) In no case of which we are aware has a Kansas court found counsel to be “adequate” where the performance complained of fell short of the “reasonably competent” standard now urged as a new rule. In no case has our court put its imprimatur on counsel’s conduct involving drunkenness in court or sleeping during a trial — two of the “horribles” petitioner suggests are acceptable under the Kansas test of adequacy. The court has found acceptable acts or omissions which, especially in the light of hindsight, appear to have been mistakes of judgment. Such approval only recognizes that lawyers are no more infallible than anyone else, and that decisions made in the course of a suit “must necessarily depend in large measure on the discretion and judgment, as well as the expertise, of the attorney trying a case.” (Tuscano v. State, 206 Kan. 260, 262, 478 P.2d 213 [1970].) The “reasonably competent” standard is no more than shorthand for the standard imposed by the Code of Professional Responsibility, especially Canons 6 and 7 and the Disciplinary Rules thereunder (Rule No. 501, 220 Kan. cix et seq.). It also, we suppose, establishes a standard for malpractice, since lawyers, like other professionals, are required to have and exercise the learning and skill ordinarily possessed by members of their profession in the community. Cf. Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973). Lawyers, like other professionals, do not guarantee success but only that their conduct will conform to prevailing standards of competence. We cannot believe our Supreme Court would ever find counsel “effective” in a constitutional sense where his malpractice (through incompetence or lack of zealousness) has been the cause of his client’s conviction or otherwise worked to the client’s substantial detriment. We have found no case which could be so construed. We therefore agree with the trial court that DeCoster and similar cases relied on by petitioner do not represent any change in the law since petitioner’s first 1507 proceeding, not because Kansas has not yet adopted a “reasonably competent” standard for measuring counsel’s performance but because that standard has been adopted and was applied in evaluating her counsel’s performance in the first Schoonover case. 3. In her last point, petitioner alleges there were “unusual circumstances” which entitled her to relitigate the question of trial counsel’s competence. Her contention is that her retained counsel in the first 1507 proceeding did not fully develop all the shortcomings of her trial counsel. At the limited evidentiary hearing below the evidence was directed to this contention. Both of petitioner’s retained attorneys in the prior proceeding testified. They confirmed what appeared of record as to that proceeding, i.e., that the trial court had admonished them in open court, with petitioner present, that all grounds for collateral attack should be presented so as to avoid piecemeal litigation. They further testified that they presented every issue and argument they were aware of and had considered every suggestion made to them by petitioner. An examination of the Supreme Court opinion in that case reveals that five separate grounds of alleged inadequacy were considered and rejected, in addition to the question of the contingent fee contract. The trial court’s chief concern in this proceeding, and the reason it granted the evidentiary hearing it did, was an allegation by petitioner that one of her attorneys in the first proceeding was subjected to harassment and intimidation which prevented him from doing an adequate job. His testimony was that he was not intimidated and his performance was not affected, and the trial court so found. There was also an allegation that counsel in the first 1507 proceeding failed to interview a number of witnesses who, she says, should have been called at her murder trial. Those witnesses are listed, along with the substance of their claimed knowledge of the case, in an exhibit (No. 4) introduced in this case. The trial court found that none of the “missing” testimony afforded any grounds for a collateral attack or a new trial. Our examination of it reveals that it had marginal relevance at best, and as a matter of trial strategy could well have been withheld by the most able of trial counsel. In short, we agree with the trial court that petitioner had a full and fair opportunity in the first 1507 proceeding to present all her contentions concerning trial counsel’s performance, and she did so. There were no unusual circumstances requiring a new evidentiary hearing on that issue. The trial court properly dismissed this second 1507 petition as an abuse of the remedy and its judgment is affirmed.

Meyer, J.: Claimant’s husband suffered a fatal cardiovascular accident on August 25, 1976, while employed as police chief by the city of Hugoton, Kansas. The decedent had arrived at his home at about 3 o’clock in the afternoon after having worked an eight-hour shift. The temperature that afternoon was between 90 and 95 degrees. His home was air-conditioned and decedent was relaxing when he received a call from the police dispatcher that several vehicles were speeding at the city dump. Decedent left the house immediately and departed for the city dump in a vehicle which had been in the sun with the windows rolled up all day. Approximately eight minutes later the decedent was found slumped over the steering wheel of his car. His death certificate showed the cause of death as coronary thrombosis resulting in myocardial infarction. There was sufficient medical testimony from which a finding could be made that decedent’s fatal heart attack was proximately caused by the heat coupled with the excitement of the chase. On October 26, 1977, the workmen’s compensation examiner entered an award in favor of the claimant against the workmen’s compensation fund, with compensation to be retroactive from the date of decedent’s death. The workmen’s compensation director affirmed the examiner on November 7,1977, and the district court subsequently affirmed the examiner and director on March 10, 1978. The workmen’s compensation fund appealed the award in case No. 49,996, and the claimant appealed a separate action in case No. 50,227, in which she asked (and was denied) that penalties and attorney fees be assessed against the workmen’s compensation fund for late payment. Although the two cases have been consolidated for appeal, we will treat the issues presented in each appeal separately, beginning with the appeal by the workmen’s compensation fund. The first issue raised by the workmen’s compensation fund is that there was no substantial external force, and therefore the heart amendment, K.S.A. 1977 Supp. 44-501, precludes claimant’s recovery. The district court found that there was a substantial external force which proximately caused decedent’s death. There was substantial competent evidence upon which the district court made such finding. On appeal, the standard is whether the record contains any substantial competent evidence which, on any theory, justifies the trial court’s findings. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975). Also, this court must review all evidence in the light most favorable to the prevailing party below, and if the findings are based upon substantial evidence, they are conclusive. Makalous v. Kansas State Highway Commission, 222 Kan. 477, Syl. ¶ 9, 565 P.2d 254 (1977). In addition, whether exertion in any particular case is “unusual” is a question of fact for the trial court. Nichols v. State Highway Commission, 211 Kan. 919, 508 P.2d 856 (1973). The workmen’s compensation fund’s second issue concerns the apportionment of liability among the city, the city’s insurance carrier, and the workmen’s compensation fund. They argue that because the city was not shown to have had notice of the decedent’s heart condition, total liability should not be assessed to the workmen’s compensation fund. The trial court, however, found that the city did in fact have notice of the worker’s condition prior to the time of his death. Since there was substantial competent evidence presented to justify the trial court’s findings, appellant’s second argument fails for the same reason as the first, based upon the same cases cited above. In claimant’s appeal, the issue is as follows: “Is the Worker’s Compensation fund liable under the provisions of K.S.A. 1977 Supp. 44-512a for failing to pay compensation when due as prescribed in K.S.A. 1977 Supp. 44-512?” We must also ascertain whether appellant’s court action was prematurely filed in that she had not petitioned the workmen’s compensation director for relief under K.S.A. 1977 Supp. 44-512a. K.S.A. 1977 Supp. 44-512a provides that if compensation due is not paid, the claimant is “entitled to a civil penalty, to be set by the director and assessed against the employer or insurance carrier liable for such compensation . . . .” (Emphasis added.) There are only two entities expressly mentioned as being liable, under the statute, for the penalty. The legislature, having created the workmen’s compensation fund, is obviously aware of its existence, but has never amended K.S.A. 1977 Supp. 44-512a to expressly include the fund. We conclude that the legislature’s omission of the fund from the provisions of 44-512a was intentional. Additionally, we note the language of K.S.A. 1977 Supp. 44-512a states that “the workman shall be entitled to a civil penalty, to be set by the director . . . .” (Emphasis added.) The statute specifies the director as the entity which shall set the penalty. We therefore hold that a prerequisite for filing this matter in district court is to have first petitioned the workmen’s compensation director to set a penalty. Affirmed.

Abbott, J.: This case involves three questions, one of which defendant abandoned at oral argument. The two remaining issues are whether the trial court had jurisdiction over the person of defendant, George L. Stringer, and, if so, did the court err in excluding parol evidence concerning the capacity in which defendant signed the promissory note in question. The trial court denied defendant’s motion to dismiss on the grounds that the trial court lacked jurisdiction over the defendant. At trial, the court found the promissory note to be clear and unambiguous on its face and refused to allow defendant to introduce parol evidence to the effect that defendant signed the note as president of May Plastics, Inc., and not in his individual capacity. Judgment was granted to the plaintiff, Rosedale State Bank & Trust Company, for the principal sum due on the note plus accrued interest and costs. Defendant appeals. The promissory note in question is a renewal note for a loan originally made on September 17, 1974. The original note was cancelled and returned to the defendant when the renewal note was executed on March 16, 1975, and accepted by the plaintiff bank. It was not offered in evidence. The defendant’s evidence was that the renewal note was signed in Missouri by him, and although the record is not absolutely clear the note apparently was caused to be delivered to the plaintiff in Kansas by William D. Jobe, a signatory of the note. The plaintiff’s only witness did not know where the note was executed. The record is silent as to where the original note was signed and who signed it. The proceeds of the note, however, were deposited to the account of May Plastics, Inc., with plaintiff bank in Kansas. May Plastics, Inc., was at all times material a Missouri corporation doing business in Missouri. Defendant was personally served in Missouri. Plaintiff’s position is that defendant submitted himself to the jurisdiction in Kansas by doing one of the acts enumerated in K.S.A. 60-308(b)(l) and (5). We agree. Due process requires that in order to subject a defendant to a judgment in personam if he be not present within the forum, he must have certain minimum contacts with the forum so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 66 S.Ct. 154 [1945].) Essentially the same factors which enter into a determination that K.S.A. 60-308(b) authorizes the exercise of judicial jurisdiction are involved in deciding whether the exercise of jurisdiction is constitutionally valid. (Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 [1968].) Each case is to be determined on its own facts. Here, plaintiff alleges jurisdiction exists over the defendant on the basis of K.S.A. 60-308(fe)(l) and (5), which provide: “(b) Submitting to jurisdiction• — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: “(1) The transaction of any business within this state; “(5) Entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.” Subsection (5) was added effective July 1, 1971, in an obvious effort to broaden the scope of K.S.A. 60-308. The Kansas Supreme Court has said many times, both before and since the addition of subsection (5), that the intent of the legislature in enacting K.S.A. 60-308 was to extend the jurisdiction of the courts of this state to the full extent authorized by the due process clause of the Fourteenth Amendment. (Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 [1974]; White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578 [1969]; and Woodring v. Hall, supra.) It is significant that the legislature saw fit to broaden the statute after the decisions in Woodring v. Hall, supra, and Oswalt Industries, Inc. v. Gilmore, 297 F. Supp. 307 (D. Kan. 1969)—two of the cases upon which defendant relies. Physical presence is not constitutionally mandated in order to establish minimum contacts. In McGee v. International Life Ins. Co., 355 U.S. 220, 2 L.Ed.2d 223, 78 S.Ct. 199 (1957), the Supreme Court of the United States upheld the exercise of in personam jurisdiction by a California state court where the only contact with the forum was by mail. The Supreme Court there stated it was “sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” (p. 223.) Nearly a decade ago, the Kansas Supreme Court, in White v. Goldthwaite, supra, stated the basic factors which must coincide to sustain an exercise of jurisdiction over a nonresident defendant on the basis of the transaction of business within the state as follows: “(1) [T]he nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.” (Syl. If 3.) The Kansas Court of Appeals recently held that solicitation by mail for services to be performed in another state may be held to be sufficient transaction of business within the state to support in personam jurisdiction over a nonresident defendant. (Prather v. Olson, 1 Kan. App. 2d 142, 147, 562 P.2d 142 [1977].) Here we are faced with a situation where a loan was made in Kansas from a Kansas bank and the money received from the loan was deposited in a Kansas bank and subsequently withdrawn. When the note came due, the interest was paid and a renewal note was accepted by the bank. The fact that the renewal note was executed outside the state of Kansas is immaterial. The note was clearly given to induce the bank to forego calling the note. It was clearly the intent of the parties that the note, even though signed in Missouri, was to be delivered and accepted by the Kansas bank in Kansas, and all payments were to be made in Kansas. The defendant knew, or should have known, that the agreement was to be accepted and paid in Kansas and would have substantial effect in Kansas. This was not a unilateral agreement for payment such as the Kansas Supreme Court found insufficient to support in personam jurisdiction in Misco-United Supply, Inc. v. Richards of Rockford, Inc., supra. We are more persuaded by the reasoning in National Bank of America at Salina v. Calhoun, 253 F. Supp. 346 (D. Kan. 1966), where in an action to recover for insufficient fund checks the federal court held that the statutory promise to pay the holder the amount of the checks, if they were not paid when presented to the Nebraska bank upon which they were drawn, constituted the transaction of business in Kansas where the checks were delivered to a Kansas resident in Kansas. We therefore conclude the trial court correctly determined there were sufficient contacts with Kansas to support in personam jurisdiction. Defendant next argues the trial court erred in excluding parol evidence of the capacity in which defendant executed the promissory note. The note itself is a preprinted form stating that “the undersigned jointly and severally promise to pay.” The signature lines of the note appear as follows: MAY PLASTICS, INC. By: /s/ William D. Jobe Secretary William D. Jobe /s/ William D. Tobe William D. Jobe /s/ George L. Stringer George L. Stringer George L. Stringer was the president of May Plastics, Inc. William D. Jobe was the secretary. A corporate resolution filed with the bank authorized either Stringer or Jobe to negotiate and procure loans. As corporate officers, each was a “representative” of the corporation as the word is used in the Uniform Commercial Code (K.S.A. 84-1-201 [35].) Stringer attempted to introduce parol evidence to the effect that he signed the note in a representative capacity as president of May Plastics, Inc., and that the bank had agreed that he was not signing in an individual capacity. The trial court refused to hear evidence on the subject, but allowed Stringer to make a proffer. Judgment was entered against Stringer for the remainder due on the note plus accrued interest, and this appeal followed. Kansas case law has long prohibited the use of parol evidence to show that a party intended to sign a note in a representative capacity when the note did not clearly indicate his intention to be bound other than individually. (Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415 [1918].) However, the law which controlled in the Lonnon case was the Negotiable Instruments Law. (Gen. Stat. 1915, § 6590.) The transactions in this case are governed by the Uniform Commercial Code which succeeded the Negotiable Instruments Law. K.S.A. 84-3-403 provides in part: “(2) An authorized representative who signs his own name to an instrument “(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; “(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” The Kansas comments to subparagraph (2) (h) of the above statute provide: “(b) As against other than immediate parties, accords with the general import of Kansas decisional law in Lonnon v. Batchman, 103 K. 266, 173 P. 415 (1918) and Jett-Wood Central Mercantile Co. v. Pringle, 128 K. 159, 277 P. 37 (1929), but those cases involved immediate parties, and parol evidence is admissible under this subsection, contrary to the precise holding in the Lonnon case and perhaps contrary to the holding in the Jett-Wood case.” The official comments to the Uniform Commercial Code indicate that parol evidence is admissible in litigation between the immediate parties to prove the agreement between the parties as to the capacity in which a party signed where the instrument names the person represented but does not show that the person signed in a representative capacity. (Uniform Commercial Code [Uniform Laws Anno.], § 3-403; 23 A.L.R.3d 932, 967; 11 Am. Jur. 2d, Bills & Notes §§ 566, 575.) Such a rule is in harmony with Restatement (Second), Agency § 324 (3), which allows parol evidence as between the immediate parties if the principal’s name appears upon a negotiable instrument and the agent has not unambiguously signed in an individual capacity. Although there are no Kansas cases construing K.S.A. 84-3-403 (2), a number of jurisdictions have construed identical statutes. None of them have considered signatures identical to this case. One of the closest is Stage Door Restaurant, Inc. v. L. N. Hill Company, Inc., 248 A.2d 828 (D. C. 1969). The promissory note in question was signed for Stage Door Restaurant, Inc., by James A. Kefalas, President. The note was endorsed a second time by Kefalas and then by Samuel Schanker. Schanker was also an officer of the corporation. The pleadings put in issue the capacity in which Schanker signed the promissory note. Schanker testified it was his understanding with the lender that he was signing in a representative capacity and not as an individual. The court held that parol evidence was admissible to show that the individual signed as a representative of the corporation and that it was not intended that he incur individual liability. Maryland affirmed a decision against a lending institution which attempted to hold a person individually responsible for his signature on a note in Leahy, Executrix v. McManus, 237 Md. 450, 206 A.2d 688 (1965). The note was stamped with the corporate name of Multi-Krome Color Process, Inc., and immediately below were the signatures of C. E. McManus, Jr., and C. E. Delauney without designation of any representative capacity. The corporation had received the proceeds from the note and, as in the case before us, the corporation was not solvent when suit was filed. The note stated “we promise to pay.” McManus tes tified that he was signing as a corporate officer and that “we” meant the corporation as a collective group. Maryland held, “As between the parties, in this State, while a person who signed a note made by a corporation is prima facie liable to the payee, if there is conflict in the evidence relative to the circumstances, the individual who signed that note is not liable if he affirmatively shows an understanding between him and the payee that there was to be no personal liability.” (p. 454.) Although adopted, the Uniform Commercial Code was not yet in effect in Maryland at the time of the transaction, but the court specifically noted that the adopted code embodied the same principle in section 3-403. In Geer v. Farquhar, 270 Or. 642, 528 P.2d 1335 (1974), Farquhar’s signature was followed by a dash and the words “Oceans West Dev. Corp.” The court allowed Geer to introduce parol evidence that as between the immediate parties there was an agreement that Farquhar would sign as an individual and for the corporation. The Oregon court recognized that the intent of the immediate parties is controlling and parol evidence may be introduced to show their intent. In Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968), the words “Razorback Asphalt Co., Inc.,” had two signatures immediately below. No representative capacity of the signers was placed on the note. The trial court permitted parol evidence to determine the capacity in which the signatures were affixed. The statutory provision was identical to its Kansas counterpart. The court held that the signer had the burden of showing an understanding between himself and the holder of the note that he had signed the note in a representative capacity and would not be personally liable on the note. Section 3-403 of the Uniform Commercial Code was considered in Bank v. Pocock, 29 N.C. App. 52, 223 S.E.2d 518 (1976). There, a security agreement included both a note and chattel mortgage. The security agreement was signed: S & S Cleaners Inc. (Seal) Debtor s/ Ian I. Pocock, Pres. (Seal) Debtor s/ Laura E. Pocock, Sec.-Treas. (Seal) Debtor The case did not involve the signature on the front of the note. The question involved the guarantee on the reverse side of the security agreement where the name of the corporation did not appear. It was signed by “Ian I. Pocock, Pres.” and “Laura E. Pocock, Sec.-Treas.” The instrument did not name a person represented, but did show the defendant signed in a representative capacity. This situation is covered by 84-3-403(2)(b) of our statute which is identical to the North Carolina section. The court stated that the determinative issue was whether the guarantee was signed by the Pococks with an understanding being “otherwise established between the immediate parties” that the Pococks were not signing in an individual capacity. North Carolina placed the burden on the signing party to prove an agreement between the immediate parties that they would not be personally obligated and allowed parol evidence. The Minnesota Supreme Court considered a promissory note wherein the maker’s signature line contained the typewritten name of the corporate debtor, “Southdale Pro-Bowl, Inc.” On the line below, one of its officers, John Dorek, signed his name with an appropriate indication of his representative capacity as president of the corporation. Immediately below John Dorek’s signature appeared the signature of the defendant, Frank Buetel. Buetel’s representative capacity did not appear on the note. Both individuals signed the reverse side of the note in an identical manner. Minnesota, which, like Kansas, had adopted 3-403 of the Uniform Commercial Code, considered for the first time whether the trial court properly admitted parol evidence concerning the capacity in which Buetel signed the note. The Minnesota court determined that there was reasonable doubt as to whether the endorser signed in a representative or individual capacity and permitted the introduction of parol evidence. (Weather-Rite, Inc. v. Southdale Pro-Bowl, Inc., 222 N.W.2d 789 [Minn. 1974].) The Illinois Court of Appeals, in First National Bank of Elgin v. Achilli, 14 Ill. App. 3d 1, 301 N.E.2d 739 (1973), allowed parol evidence where the promissory note was signed in the lower right hand corner: HIGHLAND MOTOR SALES /S/ RUTH ACHILLI (SEAL) /S/ HOWARD ACHILLI (SEAL) Illinois had also adopted 3-403 of the Uniform Commercial Code, and they held, “Since only the immediate parties to the note are involved, we hold that the signatures in question are sufficiently ambiguous to allow extrinsic evidence showing the capacity in which the parties intended defendants to sign.” (p. 5.) The same section of the Uniform Commercial Code was considered by the Florida Court of Appeals in Speer v. Friedland, 276 So. 2d 84 (Fla. App. 1973). The Speer case involved signatures on a check that had been returned for insufficient funds. The name of the organization represented appeared immediately above two signatures. Neither signature indicated a representative capacity. The Florida Court of Appeals held that it was presumed that the check was signed in a personal capacity, but the presumption was overcome by evidence presented by the signer. The burden then shifted to the holder of the check to prove that the check had been signed in an individual capacity unaided by the presumption that it had been signed in an individual capacity. The court held the signatures were ambiguous prior to allowing parol evidence. The opinion of the trial judge in this case is persuasive and well-reasoned. However, the language of the statute is clear. The intent of the legislature must be found from the language of the statute and, where the language used is plain-and unambiguous and appropriate to an obvious purpose, the court should follow the intent as expressed by the words used. (State v. V.F.W. Post No. 3722, 215 Kan. 693, 527 P.2d 1020 [1974]; Sampson v. Rumsey, 1 Kan. App. 2d 191, 563 P.2d 506 [1977].) The legislature, by adopting the sections of the Uniform Commercial Code without change, obviously intended the provisions to be interpreted as set forth in the official comments which were available to the legislature at that time. We therefore have no hesitancy in holding that as between the immediate parties to a negotiable instrument parol evidence is admissible to show the intention of the parties where the instrument names the person represented, but does not show that the individual signed in a representative capacity. Under those circumstances, there is a presumption that the promissory note was signed in an individual capacity and the person who signed the note has the burden of overcoming that presumption. The trial court committed reversible error in excluding defendant’s testimony concerning the understanding of the parties as to defendant’s capacity in signing the note. We do not deem that portion of the preprinted promissory note reading “the undersigned jointly and severally promise to pay” as being material to our decision. William D. Jobe unquestionably signed the promissory note in both a representative and individual capacity. Thus, the language in the instrument would be applicable regardless of the capacity in which Stringer signed. In his brief, the defendant challenged the constitutionality of K.S.A. 16a-l-109. At oral argument, defendant abandoned that point. Reversed and remanded for retrial.

Abbott, J.; This is an appeal from a conviction of the offense of giving a worthless check in violation of K.S.A. 21-3707. Although defendant raises a number of issues, when analyzed they condense into three: Whether the notice was properly “deposited as restricted matter in United States mail” as required by K.S.A. 21-3707; If not properly deposited, whether the trial court erred in instructing the jury on the statutory presumption that arises as a result of the failure to pay the holder the amount due on the instrument as set forth in K.S.A. 21-3707; and Whether a prima facie case was established if the statutory presumption is not applicable. The check was written by defendant and accepted by K-Mart in Wichita in payment for merchandise on March 5, 1977. It was deposited in the regular course of business and returned by the bank because of “insufficient funds.” An effort to contact de fendant by telephone was unsuccessful. A notice was then mailed by certified mail to defendant. The notice was returned to K-Mart by the post office marked “Unclaimed.” The envelope indicated that notice was sent to the defendant by the post office on two occasions and that “no response” was received. What the postal department notice to the defendant stated is not in the record. We note, however, that only fifteen cents postage was placed on the envelope, and the fact that eighty-three cents postage was due is clearly and prominently shown on the face of the envelope. It would appear that defendant received a notice from the post office that he had a certified letter with eighty-three cents postage due and upon payment of that sum he could pick up the letter at the post office. We are not unmindful that since July 1977, postal regulations provide that mail having insufficient postage will be returned to the sender without giving the addressee an opportunity to pay the postage due and obtain the article. Any notice mailed pursuant to K.S.A. 21-3707 after June 1977 bearing insufficient postage, and not actually delivered, would not meet due process requirements, as there would be no rational basis for the statutory presumption of notice. K.S.A. 21-3707, by implication, requires that the notice be deposited as restricted matter in the United States mail with all postage and fees prepaid. Other jurisdictions have held that sufficient prepaid postage is a required element of notice by mail. (See Wasden v. Foell, 63 Idaho 83, 117 P.2d 465 [1941]; Goodman v. Jones, 102 Ariz. 532, 433 P.2d 980 [1967]; United States v. Continental Casualty Co., 245 F. Supp. 871 [E.D. La. 1965].) Although the notice in this case was not mailed as “restricted delivery” matter, we conclude that the mailing of a notice by certified mail, restricted delivery, with insufficient postage, addressed to the maker of a check at the address shown thereon and which is not actually delivered to the maker of the check, is insufficient to raise the rebuttable presumption provided by K.S.A. 21-3707. Of equal importance is the fact that the notice was not deposited as restricted matter in the United States mail. A notice sent by certified mail restricting delivery to the addressee only with a return receipt requested showing to whom and the date delivered has been held sufficient to raise the rebuttable presumption provided by K.S.A. 21-3707. (State v. Calhoun, 224 Kan. 579, 581 P.2d 397 [1978].) In Calhoun, the record disclosed that the sender was given four options concerning delivery and the type of receipt to be returned to the sender. The options were as follows: 1. Show to whom and date delivered; 2. Show to whom, date, and address of delivery; 3. RESTRICTED DELIVERY. Show to whom and date delivered; and 4. RESTRICTED DELIVERY. Show to whom, date, and address of delivery. The sender marked the third option. In this case, an outdated certified mail form was used. Four options were given as follows: 1. Show to whom and date delivered; 2. Show to whom, date, and address of delivery; 3. DELIVER ONLY TO ADDRESSEE and show to whom and date delivered; and 4. DELIVER ONLY TO ADDRESSEE and show to whom, date, and address of delivery. The first option was checked. The 1977 Postal Service Manual, which is incorporated by reference in 39 C.F.R. § 111.1, provides in pertinent part at section 154.17 that certified mail which the sender has restricted in delivery to the addressee only may not be delivered to any other person except as provided in 165.34. Section 165.347 provides that where the obsolete endorsement of “Deliver to Addressee Only” is used, the article would be handled as “Restricted Delivery” mail. The notice given was not deposited as restricted matter in the United States mail, and in the absence of evidence that the notice was received by the defendant, the rebuttable presumption provided by the statute did not arise and the trial court erred in so instructing the jury. Defendant’s objection to the erroneous instruction was on the ground that the jury should also be instructed as to the effect of the presumption and that it was rebuttable. Defendant now contends that since the required notice was not properly restricted, did not have sufficient postage, and was not delivered to the defendant, it was error for the court to instruct on the presumption. Defendant failed to state distinctly the matter to which he objected and the grounds for his objection as required by K.S.A. 22-3414(3), and he may not assign the giving of instruction number three as error unless it is clearly erroneous. (State v. Worth, 217 Kan. 393, 395, 537 P.2d 191 [1975], cert. denied, 423 U.S. 1057, 46 L.Ed.2d 647, 96 S.Ct. 792 [1976].) While it is true that an instruction is not clearly erroneous when it correctly states the law and does not mislead the jury (State v. Powell, 220 Kan. 168, 551 P.2d 902 [1976]), the instruction here was clearly misleading as there was no evidence to support the presumption arising from K.S.A. 21-3707. A question asked by the jurors would indicate they were confused by instruction number three. One defense offered by the defendant was that he had informed the payee he did not have sufficient funds to cover the check. During jury deliberations, a written message from the jury inquired as follows: “If he [defendant] informed payee [K-Mart] that maker [defendant] did not have sufficient funds to cover check does this absolve him from provision in No. 2 that says intent to defraud follows failure to pay within 7 days after notice?” The court answered the question in writing as follows: “The Court has instructed you on the law, and your question is a question of fact for you to determine. The intent to defraud is one of the five elements in Instruction No. 4, and the other is a defense.” The instruction was clearly erroneous in that there was no evidence to support it, and it resulted in substantial prejudice to the defendant which requires a new trial. Defendant raises one additional point that requires comment. Defendant contends that without the statutory presumption of intent to defraud and knowledge of insufficient funds to cover the check, defendant’s motion to acquit at the close of the state’s case should have been granted. In passing upon a motion for judgment of acquittal, a trial judge, giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact, must determine whether upon the evidence a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If the trial judge so finds, he must deny the motion and let the jury decide the case. (State v. Jones, 222 Kan. 56, 563 P.2d 1021 [1977].) Evidence was presented that defendant was the only person authorized to draw checks on the account. On the day the check in question was written for $102.88, the account had $2.62 in it and it continued to show a balance of $2.62 until the bank closed it eighteen days after the check was written. That by itself would establish a prima facie case of defendant’s intent to defraud and knowledge of the fact that he had insufficient funds in the account at the time the check was drawn to pay the same. Therefore, the trial judge correctly denied the motion for a judgment of acquittal. Reversed and remanded for a new trial.

Parks, J.: Appellant, Sara Albertson, seeks to intervene in a personal injury suit brought by her husband, Glyn Dean Albert-son, and to file a cross-claim against him for failure to assert a claim in her behalf for loss of consortium. Her motion was denied and she appeals from that order. Although the Albertsons are now divorced, we continue to identify them as husband and wife because this appeal relates to events which occurred during their marriage. Appellees are Glyn Dean Albertson and the defendant in the personal injury suit, Vernon L. Travis. While this appeal was being processed, the trial court entered a judgment in favor of the plaintiff husband. Subsequently, appellee Travis filed a motion to dismiss this appeal as being moot. His motion is denied. Under K.S.A. 60-2102(o)(4), an order denying an application to intervene is an appealable order. Here a timely appeal from a final order of the district court was filed by the appellant. We conclude that her appeal is properly before this court. Campbell American Legion v. Wade, 210 Kan. 537, 502 P.2d 773 (1972). A question has also been raised concerning the statement of proceedings filed pursuant to Rule No. 3.04. We have determined that the appeal should be heard on its merits. We will first consider whether under the facts of this case the wife whose husband fails or refuses to assert a claim for her benefit may intervene in a personal injury suit demanding damages for loss of consortium. On December 6, 1975, Glyn Albertson sustained personal injuries which allegedly caused the loss or impairment of his ability to perform services for his wife. The then controlling statute, K.S.A. 23-205, made no provision for a husband to recover damages for loss of consortium for the benefit of his wife. Eleven years earlier the Kansas Supreme Court had expressly refused to extend the common law by giving the wife a cause of action for loss of consortium caused by negligent injury to her husband. The court acknowledged that the wife had no cause of action at common law for loss of consortium and that the enactment of the statute (K.S.A. 23-205) did not give her a cause of action which she did not have at common law. In Kansas, the entire damage in cases of negligent injury to a husband or father has always been considered as centering in him, and a settlement with him has always been recognized as closing the incident. Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615 (1964). In rendering its decision, the court concluded: “[T]he legislature rather than the courts can best deal with the problems presented. For example, the legislature, if it found this type of suit to be desirable, could define the extent of the liability, designate who may maintain the action as it did in the situation where the wife is negligently injured (G.S. 1949, 23-205), and provide safeguards against the danger of double recovery, such as a requirement that there be a joinder of the person directly injured and the one consequentially harmed. The legislature could also specify whether the proceeds should belong to the plaintiff alone or to both spouses. Clarification by statute as to both the husband and the wife would, of course, be preferable to piecemeal determination of the problems by judicial decision.” (Hoffman v. Dautel, supra at p. 422.) (Emphasis added.) On December 6,1975, the appellant wife had no cause of action for loss of consortium and her husband had no duty or authority to recover such damages for her benefit. Accordingly, we hold that the appellant’s motion to intervene was properly denied. We now turn to the question of whether the 1976 amendment to K.S.A. 23-205 should be applied retrospectively to permit the appellant’s intervention. In our view, it' should not. Twelve years after Hoffman v. Dautel, supra, and one year after the injuries in the instant case were sustained, the legislature amended K.S.A. 23-205 by extending the right of action to recover damages thereunder to the husband, for the benefit of his wife. Our Supreme Court has long adhered to the rule that a statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter. Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 568, 552 P.2d 998 (1976). See Bromfield v. Seybolt Motors, 109 N.H. 501, 256 A.2d 151 (1969); Berry v. Myrick, 260 S.C. 68, 194 S.E.2d 240 (1973); Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652 (1970), which held that where the wife’s right to recover for loss of consortium is established by statute, no such right of action exists for injuries received before the effective date of the statutes. We need not decide whether K.S.A. 60-224(a) authorizes a real party in interest to intervene in loss of consortium cases. By definition, the appellant is not a real party in interest. On December 6, 1975, she had neither a common law nor a statutory right to recover damages for loss of consortium. Appellant’s cross-claim against her husband was properly dismissed because the law imposed no duty upon him to assert in her behalf a nonexistent claim for loss of consortium. The question of the constitutionality of the pre-1976 version of K.S.A. 23-205 is not properly before this court. The record and counsel’s statement at oral argument disclose that this issue was not raised in the trial court. It is well settled that an issue presented for the first time on appeal will not be considered by an appellate court. Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 554, 567 P.2d 1292 (1977). Affirmed.

Error from Cowley district court.

The opinion of the court was delivered by Pollock, J.: The sole ground of error relied on by counsel for the defendant for reversal of this decree is that no consideration was given or received by either party for the making of this stipulation, and that, on account of the delay of the trustee of the estate in complying with the terms of the stipulation, the defendant had the right to rescind it and to refuse compliance therewith, and that the trial court erred in decreeing compliance with its terms. With this contention we do not agree. Counsel errs in the contention made that the stipulation lacks consideration. The estate had a mortgage on the entire tract of land and a suit to foreclose the same was pending. Whether or not this mortgage was valid as to the entire tract was undetermined. In the stipulation for compromise and settlement the estate not only waived its right to insist on a foreclosure and sale as to a part of the land, and permitted it to descend to the defendant as heir at law unencumbered, but dismissed its suit at its costs, and refrained from the bringing of another. It is well settled that this is ample consideration for the stipulation. Again, by the terms of the stipulation, time is not made of thp essence of the contract. Either party, therefore was entitled to a reasonable time, under all the circumstances of the case, to offer compliance with its terms. The representatives of the estate lived at a great distance from the property. The defendant was occupying and enjoying the use of the entire property. There is no showing of damage to the defendant by the delay. The agreement as to the mutual division of the common property was delayed until April. Under the division as then made, in addition to oné-half of the common property in extent of acres, the defendant was to receive three acres of the individual property of Gr. O. Simmons not provided for in the stipulation. This intelligence, so far as shown by the record, was first communicated by Marshall to Scranton in his letter of November 1. The name of the person to whom the estate desired conveyance from the defendant for the benefit of the estate was furnished November 1, yet the defendant did not execute her deed until November 11, and on the next day demanded that, unless the mortgage was released as to the property to be received by the defendant under the stipulation, and the division made in April, within one week, she would refuse further to be bound by the stipulation; and this although the representatives of the owner of the mortgage who were expected to execute this release lived in the distant state of Connecticut. On the 22d day of November she did declare her intention not to comply with the terms of the stipulation, and on the 23d day of December compliance with the terms of the stipulation and division made in April being tendered by the representatives of the estate, the defendant-rejected the same, and gave as the ground of her right so to do that compliance had not been made within the time given. Upon this state of facts, the trial court refused to excuse compliance with the terms of this stipulation by the defendant and decreed its enforcement. With this conclusion we agree. Whether or not specific performance of a mutual contract shall be decreed, considering all the facts and circumstances of the case which go to make up its equities, rests largely in the sound discretion of the court. (Fowler v. Marshall, 29 Kan. 665; Pom. Eq. Jurisp. [2d ed.] vol. III, §1404; 20 Encyc. Pl. & Pr. 390, and'cases cited.) Again, where a mutual contract is equitable, and fairly entered into by the parties, and time is not expressly made of the essence of the contract, and neither party thereto has expressly by act or deed repudiated the binding force of the same, and one party •seeks to evade its obligation on the ground of the delay of the other in tendering performance, he must show either damage resulting to himself or such wilful and intentional delay as to evince the intention of the party delaying to treat the contract at an end. Mr. Pomeroy, in his work on Equity Jurisprudence (2d ed.), section 1408, says : “In all ordinary cases of contract for the sale of land, if there is nothing special in its objects, subject-matter, or terms, although a certain period of time is stipulated for its completion, or for the execution of any of its terms, equity treats the provision as formal rather than essential, and permits a party who has suffered the period to elapse to perform such acts after the prescribed date, and to compel a performance by the other party, notwithstanding his own delay.” Mr. Waterman, in his work on Specific Performance, section 456, says: “At law it is incumbent on the plaintiff to show performance on his part within a reasonable time, or if the time be fixed, within such time. But equity, distinguishing between terms of the contract which are matters of form, and a breach of which it would be inequitable in either party to insist on as a bar, and such as are of the substance of the agreement, and applying to contracts the principles which have governed its interference in relation to mortgages, holds time to be, prima facie, non-essential.” At section 465 the same author says : “Although no time is fixed in the contract, a party will not be permitted to trifle with the interests of the opposite party by unnecessary delay; and the latter may designate some reasonable time — not capriciously or unreasonably, or for the purpose of surprising the other, and thus getting clear of a bargain, but a reasonable time according to the circumstances of the case — within which he will expect performance, or that the agreement will be rescinded. The time named in the notice must be sufficient for the proper closing of the transaction ; and neither party will be permitted arbitrarily and suddenly to terminate the negotiation.” (Taylor v. Brown, 2 Beav. 180; King v. Wilson, 6 id. 124.)” In the case at bar the defendant remained in the possession of the entire tract of land; no damage to her was shown by the delay of the representatives of the estate in releasing the mortgage. Both parties, until the 12th day of November, at which time the defendant tendered her deed, treated the contract in force. It would not be consistent with equity and good conscience to permit her to tender her deed under the terms of the stipulation and division of the common property which modified the original stipulation to some extent on the 12th day of November, and at the same time give notice to the representatives of the estate living at a great distance that, unless settlement according to the terms of the stipulation was made within one week, the contract would be treated by her as ended and she would refuse further to be bound by its terms ; nor, in pursuance of such notice, to terminate the contract and refuse performance tendered by the estate on November 23, on the sole ground of the delay and notice, without offer on her part to restore the estate, so far as within her power, to the position it held when the stipulation was entered into. The decree as entered appears to be in harmony with equity as between the parties, and is, therefore, affirmed. Cunningham, Greene, JJ., concurring.

The opinion of the court was delivered by Cunningham, J. : On the 13th day of April, 1896, a petition in due form for the location of a road in Chase county was presented to the county commissioners and they made the necessary order for publication of the required notice and appointed viewers as required by statute. These viewers performed their duty in viewing the road and receiving claims for damages by reason of its location on the 20th day of May, 1896, and, among others, awarded to one J. R. Horner damages occasioned by such location. On July 6 the matter of this award to Plorner came before the county commissioners for consideration and damages to a certain amount were awarded to him by them. On the 9th day of November, 1895, plaintiff in error, in an action in the Chase county district court, obtained a judgment against the said J. R. Horner on a note given by him and for the foreclosure of a mortgage on the land, for damage to which Horner had been awarded compensation. On the 22d day of May, 1896, an order of sale on such judgment was issued, and on June 30 the land was sold to the plaintiff. On July 3,1896, this sale was confirmed, and on July 6 a deed was made by the sheriff to the plaintiff for the land. At no time did Shurtleff file any claim either before the viewers or before the county commissioners for damages done to him by reason of locating the road across this land. He did, however, on July 13,1896, file with the county clerk a notice of appeal from this order awarding damages to Hprner, and in such notice set out the facts relative to his mortgage and foreclosure thereof as hereinbefore recited, and at the same time filed Ms bond in appeal. Nothing further was done in the matter until November 9,1896, which was the first day of the November, 1896, term of the district court of Chase county, when the notice of appeal herein referred to, as well as copies of all papers relating to the establishment of the road, and copies of all orders made by the board of county commissioners relative thereto, were filed in the office of the clerk of the district court, and at the same time the attorney for plaintiff -and the county attorney .appeared before the court and, without any proof being introduced or any further pleadings- being filed, the county attorney confessed judgment in favor of the plaintiff and against the county commissioners for the sum of $400. On November 22, 1896, the commissioners, through an attorney employed for that purpose, filed their motion to set aside the judgment. This motion came on to be heard by the court on July 1, 1897, and, after the hearing of evidence in support of it, the judgment was set aside and vacated. To reverse this order, this proceeding in error is prosecuted. The motion to set aside this judgment was, perhaps, not sustained on any of the grounds set out in section 568 of the civil code (Gen, Stat. 1901, §5054), authorizing the district court to vacate or modify its own judgments at or after the term at which the same were made, although we think it might have been sustained for the reason that it was irregularly obtained. It attacks the judgment principally for the reason that no cause of action was shown by the papers in favor of the plaintiff and against the county. It is urged, first, that, under many decisions of this court, Horner, and not Shurtleff, had the right to the damages arising from the location of the road; and, second, that, Shurtleff never having filed any claim for damages, neither the board of county commissioners nor the district court on appeal had any jurisdiction to award him damages, and that such appeal was not sufficient to sustain the judgment rendered. Without discussing the first question, we base our judgment herein upon the considerations arising on the second. Section 5 of the act relative to roads and highways (Gen. Stat. 1901, §6020) provides that the road-viewers shall not assess or award damages occasioned by the opening of a road to any persons unless they or their agents, having been duly notified, shall file a written application setting out the amount of the damages claimed. This application must be filed at the time of the hearing. It is further provided that, in case the persons damaged have not received notice-of the view of the road as provided by law, they may have twelve months after the location of the road to file their applications for damages with the commissioners. In this case, at the time of the view, Horner was-the owner of the premises in question and presumably in possession thereof. As such owner, it may well be supposed that he suffered damages by reason of the location of the road ; at any rate, he filed with the viewers his claim for damages. This claim was allowed in part by them and was the one finally passed on by the commissioners. Plaintiff never asked either viewers or commissioners to pass on his claim, and, in the absence of such request, legally preferred, they had no jurisdiction either to allow or reject. No order was made anywise affecting his claim. It is -suggested that, under the decisions of this court, he had no legal claim in any event. Whether or not he had, we do not say. It is enough to say that he never preferred any. ILis proceeding purports to be, and is, if it is anything, an appeal from an order awarding damages to Horner. He was not interested in the amount of damages which Horner should receive nor was he authorized by statute to appeal from an order, except one affecting • his own interest. He assumes to appeal, not from an order awarding or refusing him damages, but from an order awarding damages to Horner: This appeal was taken under the provisions of section 1640, General Statutes of 1901, which provides that “ any person who shall be aggrieved by any decision of the board of commissioners may appeal,” etc. In order to entitle one to appeal, he must be aggrieved. One a stranger to an order, and not affected by it, may not interfere. That Shurtleff became the owner of the land on July 6, the date of his deed, or even on June 30, the date of the sale, did not give him the right to complain or feel aggrieved because the county commissioners allowed damages to Horner, who was the owner at the time of the view. This statute gives Shurtleff no right of appeal from this order in Horner’s favor, and, having no such right, it is clear that by such appeal there was no question presented to the district court which would challenge the exercise of its jurisdiction; and the papers filed in the office of the clerk of the district court, showing all these facts as they did, showed clearly that there was nothing before the court authorizing it to render judgment in Shurtleff’s favor. This being so, the judgment which it rendered was a nullity, and could be set aside upon motion of any interested party at the time. In considering the motion to set aside and vacate a judgment for the purpose of ascertaining whether any issue had been presented authorizing the rendition of a judgment, the court had a right to look into the papers of the case, and if by such inspection it found that they did not state sufficient facts to warrant the judgment, it became its duty to set aside and vacate it. (Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St. Rep. 609.) Plaintiff in error contends that even if the papers filed in the district court showed no right in Shurtleff to recover, yet the county attorney might waive this, and the fact that he did go in and confess judgment was such a waiver. We cannot assent to this claim. It may well be questioned whether the county attorney might, in the absence of direct authority therefor from the county commissioners, confess judgment, even in a case where a cause of action was stated, but, without so deciding, we are clear that a county attorney cannot, by his confession, waive the lack of all statement of a cause of action, and waive the filing of a claim which the statute has made a prerequisite for the allowance of anything. He cannot by such confession confer jurisdiction on the district court to adjudicate a matter as though such matter were before it when it was not. The district court did not err in setting aside the judgment, and its order will be affirmed. Dostjek, C. J., concurring.

The opinion of the court was delivered by Johnston, J.: This was an action to recover upon a promissory note for $100, bearing interest at the rate of ten per cent, per annum from date, given by J. C. and Mary E. Cunningham to Maud L. Sherrill. It is one of a series of notes given in pursuance of an agreement, of which the following is a copy : “This Agreement, Made and entered into by and between J. C. Cunningham, and E. Sherrill and Maud L. Sherrill, witnesseth : “That the said E. Sherrill is to dismiss, at his cost, the suit now pending in the state of Illinois entitled E. Sherrill against George C. Cunningham, and brought for the recovery of damages, and the said Maud L. Sherrill is also to dismiss at her cost the suit now pending in Illinois entitled Maud L. Sherrill against George C. Cunningham, and the said J. C. Cunningham is to make, execute and deliver unto said Maud L. Sherrill his three promissory notes, each for the sum of $100 and interest from the date of this agreement at the rate of ten per cent, per annum, one note to mature on the 1st day of October, 1892, one on the 1st day of October, 1893, and the other one on the 1st day of October, 1894, said notes to be secured satisfactorily to said E. Sherrill, and to be placed in the hands of O. F. Carson, to be held by him until the conditions of this agreement on the part of said Maud L. Sherrill as aforesaid are performed. The parties hereto are to be friends hereafter, and to quit talking about each other, and all unite in an effort to secure a pardon for said George C. Cunningham, now confined in the penitentiary. All remonstrances and letters against the said pardon are to be withrawn, and the said E. Sherrill agrees to visit the judge who sentenced and the jury who convicted said George C. Cunningham and try to have them sign a petition for said pardon. “In witness whereof, the parties have hereunto set their hands, this 4th day of June, 1892. J. C. Cunningham. E. Sherrill. Maud L. Sherrill.” The note in controversy was delivered to Maud L. Sherrill, who transferred it to William Deering & Co. before maturity ; but it is contended that the contract, in pursuance of which the note was given, contravenes public policy, and that it and the accompanying notes are therefore void; that William Deering & Co. had notice of the illegality in the consideration of the note before purchasing the same, and therefore took it subject to that defense. The principal questions presented for determination were whether there was illegality in the consideration of the note, and whether William Deering & Co., who acquired it before maturity, were innocent purchasers. Both questions were decided in favor of the defendants in error. George C. Cunningham, who had been convicted of a crime and was then in the penitentiary, was a son of J. C. Cunningham, and it appears that the Sherrills> especially Maud L. Sherrill, had been active in the prosecution and in securing the conviction. An effort had been made to obtain a pardon for George C. Cunningham, and it appears that the Sherrills had remonstrated and protested against the granting of the same. In.consideration of the notes given, the Sherrills agreed to withdraw all remonstrance and letters protesting against the pardon, to unite with the Cunninghams in an endeavor to obtain the pardon, and to visit the judge and the jurors before whom the conviction was had and endeavor to get them to sign a petition to the governor for a pardon. The court below correctly advised the jury that the agreement was contrary to public policy, and that, as between the original parties or those who had notice of the illegality, the note was without consideration. There is necessarily nothing immoral or wrong in an application for a pardon. A person may have been wrongfully convicted. Subsequent developments may show that another than he committed the offense, or that there were mitigating circumstances not known when sentence was pronounced which require a mitigation of the penalty ; or it may be that the conduct of the prisoner or his condition warrant the interposition of the pardoning power and the lightening of the punishment imposed. A person may, therefore, be legally employed to prepare a petition, collect evidence showing the right to a pardon, and submit the same, together with proper arguments, either oral or in writing, to the governor or other authority granting pardons. So it has been frequently held that contracts for the performance of legitimate professional services, such as have been mentioned, and which are openly presented and appeal directly to the judgment and reason of the authorities to whom they are presented, are valid; but there is a marked distinction between services like, these and those contracted for in the present case. The consideration of the notes in this instance was personal influence and lobby services, not by any one skilled in such work, but because they had been instrumental in securing the conviction and of their opposition to the granting of the pardon which had been applied for. The purchase of personal influence to obtain a pardon or to control the operations of any department of. the government is immoral and pernicious in tendency, and cannot receive the sanction of courts. Aside from the fact that the Sherrills agreed to use their personal influence, and had hired out their services to influence the action of the governor, there was a purchase of the withdrawal of their opposition, a sinister act for which no excuse can be given, and which is clearly inconsistent with public policy and sound morality. Testimony tending to show that most of the considerations named in the agreement were free from taint or that no bad motives were entertained was not admissible and no error was committed by the court in excluding the same. The rule was stated in McBratney v. Chandler, 22 Kan. 692, 31 Am. Rep. 213: “The contract of an attorney, for services as such, whether the services are to be rendered before a court, a department of the government, or a legislative body, is valid, and upon performance of the services a recovery can be had. The contract of a lobbyist, in the sense in which that term is now used, for his services as such, is against public policy and void. Where there is a single contract, and the services contracted for and rendered are partially those of an attorney and partially those of a lobbyist, and blended together as part and parcel of a single employment, the entire contract is vitiated. That which is bad destroys that which is good and they perish together.” The claim that no improper influence was contemplated by the parties does not weigh much where, as in this case, the things expressly provided for in the agreement are so clearly under the ban of the law. In Tool Company v. Norris, 69 U. S. 54, 17 L. Ed. 868, it was held that the invalidity of agreements like this one did not depend upon the question whether improper influences were intended or used, but rather upon the corrupting tendency of such agreements, and Mr. Justice Field remarked: “It is sufficient to observe, generally, that all agree ments for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation by refusing them recognition in any of the courts of the country.” In Wildey v. Collier and wife, 7 Md. 273, 61 Am. Dec. 346, an agreement to procure favorable action of the governor, for a pecuniary consideration, was held to be void as against public policy, and the court said: “The reasons are obvious. They are designed to protect the exercise of this power from abuse through the intervention of designing persons, and although in the particular instance no improper influences may have been resorted to, the public interest in such questions requires that the principle should be enforced in all cases.” In Clippinger v. Kepbaugh, 5 Watts & S. 315, 40 Am. Dec. 519, it was ruled : “It matters not that nothing improper was done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract; that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members and the use of an extraneous secret influence over an important branch of the government. It may not corrupt all, but if it corrupts or tends to corrupt some, or if it deceives or tends to deceive or mislead some, that is sufficient to stamp its character with the seal of reprobation before a judicial tribunal.” See, also, Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539; Mills v. Mills, 40 N. Y. 542, 100 Am. Dec. 535; Rose v. Truax, 21 Barb. 361; Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31, 24 Am. St. Rep. 454; Powers v. Skinner, 34 Vt. 274, 80 Am. Dec. 677; Trist v. Child, 88 U. S. 441, 22 L. Ed. 623; Buck v. First National Bank, 27 Mich. 293, 15 Am. Rep. 189; Thompson &c. v. Wharton, 70 Ky. 563, 3 Am. Rep. 306; 9 A. & E. Encycl. of L. 900. In agreements providing for the use of personal influence to control official action, parties have sometimes stipulated that no improper means were intended and that only reasonable and legitimate methods were to be used, but even these stipulations were- not sufficient to save the agreements from the ban of the law or the condemnation of the courts. (Marshall v. Baltimore & Ohio Railroad Company, 57 U. S. 314, 14 L. Ed. 953; Elkhart County Lodge et al. v. Crary, 98 Ind. 238, 49 Am. Rep. 746; Sweeney v. McLeod, 15 Ore. 330, 15 Pac. 275; Chippewa Valley & S. R. Co. v. Chicago, St. P. M. & O. R. Co., 75 Wis. 224, 44 N. W. 17, 6 L. R. A. 601.) Within the reasoning of the authorities cited, the agreement in question clearly involves the fatal elements, and a judicial interpretation of its terms warranted the court in telling the jury, as a matter of law, that it was illegal and void. The fact that it is void on its face renders unimportant some of the questions raised on the admission of testimony and on the instructions of the court. The only question remaining is whether the transferees of the note had knowledge' of its infirmity or such notice as fairly to put them upon inquiry. On this question there is considerable contrariety in the testimony, but of its sufficiency to put them upon notice there can be no doubt. It tends to show that the agent of the plaintiffs in , , the purchase of the note was expressly warned several days before the purchase was made that it was not good and that the makers did not intend to pay it. It is contended that error was committed in the admission of testimony with reference to the good faith of the transfer. The agent of the plaintiffs who purchased the note was called as a witness by the defendants, and, among other things, testified that he had no notice of the defense of illegality or of the infirmity in the note. By other witnesses were shown the time and manner in which the plaintiffs acquired knowledge or notice of the defense, and the testimony was a contradiction of the statement made by the agent of the plaintiff. It is contended that, by producing the agent of the plaintiffs as their witness, they vouched for his truthfulness and were bound by his testimony, and that it was error to allow him to be impeached. As a general rule, it is not permitted to produce a witness and then attack his veracity, if he fails to testify as was desired. Where a party has been entrapped or deceived by a hostile witness, he may, in the discretion of the court, be permitted to show that he was surprised or deceived, and counteract the injurious effect of the testimony by showing that the witness had previously made contrary declarations and what such declarations were. (Johnson v. Leggett, 28 Kan. 591; Greenl. Ev. §442.) There was no attempt, however, in this case to impeach the witness, and the fact that he was called and examined by the defendants did not preclude the defendants from showing the actual facts in the case, although they may have incidentally contradicted the statements of the witness. It was said in Wallach v. Wylie, as Sheriff. 28 Kan. 138: “A party never was concluded by the statements of any one of Ms witnesses. He always had the right to introduce other competent testimony to prove his case, although such testimony might contradict the statements of a previous witness and might incidentally tend to impeach the testimony of such previous witness.” (The State v. Keefe, 54 Kan. 197, 38 Pac. 302, 29 A. & E. Encycl. of L. 812.) We find no reversible error in the case, and therefore the judgment of the district court will be affirmed. Cunningham, Greene, Ellis, JJ., concurring.

The opinion of the court yvas delivered by Cunningham, J.: The defendant in error, as plaintiff, brought his action against the plaintiff in error in the court below, basing it upon the following contract : “This memorandum of agreement, made this 5th day ot March, 1802, between the Neosho Valley Investment Company, of Chetopa, Kan. and Curtis H. Hannum, of West Chester, in the county of Chester and state of Pennsylvania, witnesseth : “That whereas, the party of the first part has this day given to the party of the second part their certificate of stock No. 177 for sixteen shares of the capital stock of the party of the first part, in exchange for the principal of a real-estate mortgage for $1600, given by Francis W. Noblett to R.. Haines Passmore ; and whereas, there is now interest delinquent on said mortgage to the amount of $322 : “Now, therefore, the party of the first part by these presents agrees that it will offer the farm for sale upon which said mortgage is a first lien, and when sold it will pay to the party of the second part the amount of said delinquent interest, $322. Neosho Valley Investment Co. By Robert Simons, President.” He alleged in his petition that the land mentioned in this agreement had been sold by the defendant, and prayed judgment for $322, agreed therein to be paid upon the happening of that event. The defendant in its answer alleged: (1) A general denial; (2) that it did not execute and deliver to the plaintiff the contract sued on ; (3) that if there was any contract made, it was made by Robert Simons, for his sole úse and benefit, and not for the defendant; (4) that if Simons did attempt to act for the defendant company in the making of the agreement, the same was done without the knowledge or consent of the defendant and without authority so to act. The second and fourth defenses were verified. Trial was had on the issues thus formed and judgment rendered for plaintiff, from which defendant, as plaintiff in error, brings error to this court. A motion was made by the defendant below to quash, set aside and hold for naught certain depositions, for the following reasons : “First, because it does not appear from the said depositions that the same were sealed up by the officer taking the same, as required by law. “Second, because it does not appear from the said depositions that the same were transmitted by the officer taking the same to the clerk of the court, as required by law. “ Thii’d, because the said depositions are not authenticated, as required by the laws of this state. “ Fourth, because the said depositions are not sealed and directed, as required by the laws of this state.” The infirmity sought to be reached by this motion was that the name of the officer taking the depositions was not indorsed upon the envelope containing them. This motion was overruled, and plaintiff in error urges this ruling as its first ground of error. We do not think that the motion reached the infirmity. The first ground is the one that comes nearest doing so. In that it is claimed that the depositions were not sealed up by the officer taking the same. This certainly is hot an attack on the depositions for the reason that the name of the officer was not indorsed thereon, and the court might well have overrxxled the motion for the reason that no complaint was made because of this omission. The statute provides that exceptions to depositions shall be in writing, specifying the grounds of objection. The motion in this case was not sufficient to challenge the attention of the court to the infirmity of the depositions. The failure of the officer taking depositions to indorse his name on the envelope containing them does not show that they were not sealed up by such officer. The court did not err in overruling the motion. It is further claimed that the plaintiff below failed to show the execution of the contract sued on, the burden to do so falling upon him because of its denial under oath. Plaintiff did show that the signature to the contract was in the handwriting of Robert Simons ; and that he was at the time president of the defendant company. ' He further showed that the company had issued its certificates of stock in compliance with one portion of its agreement, and had also received the benefits growing out of the sale of the lands mentioned therein. We think this is sufficient to warrant the conclusion that this was the contract of the defendant company. It is well-settled law that a corporation may not receive the benefits of a contract made in its name, and then repudiate said contract because it was in excess of the powers of the officer assuming to make it. It is further claimed that the court erred in admitting certain records of conveyances found in the books of tlie register of deeds’ office for the reagon that sufficient foundation for such admission was not laid; The statute provides that the record of a paper, document or instrument authorized to be- recorded, may be received in evidence when the original thereof is not in the possession or under the control of the party desiring to use the same. The record of instruments introduced was of conveyances made neither to nor by the plaintiff, and therefore presumably not in his custody. It was held, in McLean v. Webster, 45 Kan. 644, 26 Pac. 10 : “If it appears that' the written instrument has been executed, to the adverse or opposing party, and the party desiring to use the same is not entitled to the custody thereof, the presumption is that it is not in his possession or under his control.” I In that case the introduction of the record in evidence was sustained without other foundation being .laid than that afforded by such presumption. In Stratton v. Hawks, 43 Kan. 538, 23 Pac. 591, it was held that only that degree of evidence is required that creates a reasonable certainty of the existence of the fact that the original is not in the possession or under the control of the party offering the record. In the case at bar we think that the evidence was abundant to authorize the admission of the records ; for, if any evidence aside from the presumption spoken of in McLean v. Webster, supra, was necessary, it was afforded by the testimony of the attorney for plaintiff, who testified that the plaintiff did not have the originals in his possession or under his control. The plaintiff in error further urges as error that it was not permitted to show that it had not sold the real estate mentioned in the agreement, and hence that judgment should not have been rendered against it. Of course, the condition of liability on the part of the defendant being that it had sold the described real estate, it became necessary for plaintiff to allege and prove that the real estate had been sold. To maintain this issue, plaintiff introduced a witness who testified that, as agent for the defendant, he had sold the land in question to the person whom he named. Plaintiff also introduced the record of the deed made by the defendant and delivered to the party to whom this agent testified he had sold the land, which deed was dated and recorded prior to the bringing of the action. Plaintiff also introduced the record of a mortgage on the land in question given by the purchaser thereof to the plaintiff in error, defendant below. This evidence was clearly sufficient to prove this part of plaintiff’s case. The defendant, to overcome this, made the following offer of proof: “Here counsel for defendant offers'to show that, although the Neosho Valley Investment Company deeded the property in controversy to E. A. Milliken, as shown by the records, yet that the said deed had been returned, record canceled, mortgage foreclosed upon said propérty, and that the Neosho Valley Investment Company is now the owner of the property referred to in the petition in this action; that it has never disposed of the same or any part thereof.” Practically the same offer, as attorney for plaintiff in error says in his brief, was subsequently made. These offers were objected to and the court refused to-permit the proof to be made as therein indicated. It-will be noted that the offer was to show not that theNeosho Valley Investment Company had not sold the* property, but that, having deeded the property, yet,, by some subsequent agreement, the deed had been returned and the record canceled. Now, if this had been true, this was no reconveyance of the title to the property, for, by the deed, title passed, and the mere return of ■ the deed and cancelation of the record would not reconvey the title to the company; but-even if it would do so, still the fact remained that the land had been sold, and it was upon the happening of' this event that the company was to become liable for the payment of the $322. We think that the court was right in excluding this offer of proof, for it did not tend to contradict the evidence of the plaintiff as to the matter of the sale of the land. Finding no error in the record, we affirm the judgment of the court below. Doster, C. J., Pollock, J., concurring.

Error from Sumner district court.

The opinion of the court was delivered by Johnston, J. : During the year 1897 John W. Skinner was the sheriff of Cowley county, and in actual possession of the office. In the latter part of that year the probate judge of Cowley county ordered that two girls be committed to the industrial school for girls, and instead of issuing the warrant to the sheriff, who was ready and willing to serve such process, he directed it to Frank W. Sidle, as special sheriff, who executed the writ, and filed a claim against the county for services and expenses for $71.85. Later, the probate j udge ordered two other girls conveyed to the soldiers’ orphans’ home, and directed that Sidle, as special sheriff, convey and commit them to that institution. This was done by Sidle, who presented a claim for $102.88 against the county for mileage and expenses. Still later, a girl was committed to the industrial school for girls, and the probate judge appointed N. Phelps special sheriff to convey her to the institution, which he did. His claim for services and expenses presented to the county commissioners amounted to $62.08. Before any action was taken on these bills, three separate proceedings were brought by the sheriff against the county commissioners to recover fees and compensation for conveying the girls mentioned to the public institutions, and because the special officer in each case was claiming for the same service he was made a party defendant to the action. By consent of all parties, the three actions were consolidated in one, and subsequent pleadings were filed and the case tried on the theory that all the causes of action were embraced in the single consolidated action, and without objection from any one. The result was a judgment in favor of the defendants. In this review it is contended that the proceeding should be dismissed because the amount in controversy in each of two of the original cases was less than $100 ; that the three cases were not and could not be legally consolidated, because one of the special sheriffs was not interested in the claim of the other, and that the cause of action against the one could not have been properly joined with a cause of action against the other, if a single action had been brought by the plaintiff. Good grounds of objection would have existed if plaintiff had sought to unite in a single suit distinct causes of action which did not affect all the defendants, and an effective objection might have been made against the consolidation of the three cases for the same reason, but, as we have seen, no objection was made. On the other hand, the consolidation was made on the agreement of all the parties, and no objection was made to it at any stage of the proceedings in the district court. It is too late to raise one now. Their consent amounted to an agreement that the three actions should be discontinued and that the causes of action embraced in them should all be litigated in the new single action instituted under the order of consolidation. Our jurisdiction is therefore to be determined by the amount involved in the new consolidated action, just as it would have been if a single action had been brought in the first instance. Again, Sidle and Phelps have only a nominal connection with the litigation. No attempt is made to recover from them, as nothing has been paid by the county on their claims for services or expenses. The plaintiff says he only named them as defendants because they had asked an allowance from the county board for the same claim which plaintiff was seeking to re- coyer. However improper the joinder or erroneous the consolidation may have been, the consent and conduct of defendants operate as a complete waiver of the error, and it cannot be made the basis of a dismissal. Another contention is that plaintiff could not maintain his action because he did not affirmatively aver and show that the claim had been presented to the county board and disallowed, and he cites sections 1688 and 1855, General Statutes of 1901. These provisions do not require that a claim be first presented to the board before a suit can be maintained upon it. It was said in Gillette v. Comm’rs of Lyon Co., 18 Kan. 410: “ Such a presentation of a claim constitutes no part of a plaintiff's cause of action. It is merely a part of the mode of procedure to enforce the causes of action already existing. And if the plaintiff fails to resort to this mode of procedure, the failure is merely matter for defense — merely matter for plea in abatement, to be set up by the defendant itself." The defendant set up the non-presentation of the claims in its answer, but it is conceded that no proof was offered in support of this defense. On the merits of the action, it is clear that the probate judge acted without authority in the appointment of special sheriffs and in placing the writs in their hands for execution. The sheriff is the officer chosen under the law for the service of such process, and, having the legal right to the office, he has the right to the emoluments of the same. He cannot be deprived of the fees and compensation attached to the office by the illegal action of the probate judge in arbitrarily placing writs in the hands of outsiders which it was the right and duty of the sheriff to execute. It is the theory of the law that he shall serve all such process when he or his deputies are available for that purpose. (Dolan v. Topping, 51 Kan. 321, 32 Pac. 1120.) It is contended that the sheriff was not available, as the statute provides, and therefore that the probate judge was right in appointing special officers. The statute referred to provides: “All writs, orders and other process of the probate •court shall be issued and directed to the sheriff of the proper county where such process is to be served; provided, that in the absence or non-attendance of the sheriff, the probate judge may appoint any elector of his county and swear him as a special sheriff for the service of any such process; a minute of which appointment and oath shall be entered on the record and indorsed on such process.” (Gen. Stat. 1901, § 1979.) It is conceded that “absence,” as used in the statute, means the absence of the sheriff from the county where the process is to be served; but it is argued that “non-attendance” is a narrower term, and that if the sheriff is not personally present in the room or within the view of the probate judge, when the process is issued, he is not in attendance, and that a special officer may then be appointed. In Webster’s International Dictionary a definition of “attend” is “to accompany or be present or near at hand, in pursuance of duty; to be ready for service ; to wait or be in waiting” ; and the definition given by some other lexicographers is “to be present or within call.” The sheriff was ready for service and within call of the probate judge when the writs in question were issued. The offices of the sheriff and probate judge were only about 150 feet apart, in a group of public buildings, and within the same enclosure. The sheriff was within easy reach of the probate judge, whose duty it was to call the sheriff when his presence was required at the probate court, or when it was necessary for the sheriff to serve process or perform other services imposed by law upon him. The law does not require the sheriff to be continuously in the probate judge’s office, nor to follow him about on the watch for the issuance of writs. (Robson v. Dickinson County, 8 Kan. App. 374, 55 Pac. 520.) When he was near at hand, in his office, in pursuance of duty, and within the call of the probate judge, it cannot be said that there was either absence or non-attendance of the sheriff. The statutes require that all county officers shall hold their offices at the same place, and generally they occupy the same building or group of buildings. The law contemplates that they shall be accessible to each other, so that they may cooperate in carrying on the public business ; and when the sheriff is in his office, near at hand, ready to serve any writs which the probate judge may issue, there is no reason or excuse for the appointment of special officers. Granting that the terms employed in the statute are open to more than one interpretation, that construction should be placed upon them which will make them harmonize with public policy; and, as we have seen, the policy of the law is that process shall be served by the officers legally chosen for that purpose, and who have given bonds for the faithful performance of their duties. (Dolan v. Topping, supra.) The fact that the probate judge shut his eyes, as it were, to the presence of the sheriff, and transcended Ms authority in appointing special ofcerg perform duties devolving upon the sheriff, will not affect the right of that officer to the emoluments incident to the office. He is as much entitled to the fees and compensation attached by law to the office as he is to the office itself, and the service performed by the special officers wrongfully appointed should be regarded as having been tendered for the sheriff. Even if these special sheriffs are for some purposes considered to be officers defacto, they have no right to the fees and compensation belonging to the sheriff, and could not maintain an action against the county to recover them. The compensation earned in the execution of the writs, and for which payment has not been made, the sheriff is entitled to recover from the county; but of course he cannot recover for expenses or moneys paid out by the special officers while conveying the girls to the public institutions. In support of the views expressed, the following cases may be cited : Garfield Twp. v. Crocker, ante, p. 272, 65 Pac. 273; Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; McVeany v. The Mayor, 80 id. 185, 36 Am. Rep. 600; Beard v. The City of Decatur, 64 Tex. 7, 53 Am. Rep. 735; Williams v. Clayton, 6 Utah, 86, 21 Pac. 398; Meach. Pub. Off. § 331; 19 A. & E. Encycl. of L., 1st ed., 525. It follows that the judgment of the district court must be set aside ; and in behalf of the plaintiff in error it is contended that there is no substantial controversy as to the facts, and that the judgment ought to be-ordered in his favor. Under the statute, we are without power to render a final judgment in the case or direct what judgment should be rendered, The supreme court may direct judgment to be entered only in cases where the facts are agreed to by the parties or found, by the court below, and when it does not appear, by exception or otherwise, that such findings are against the evidence. (Gen. Stat. 1901, § 5045; The State v. Scott County, 61 Kan. 390, 59 Pac. 1055.) The judgment will be reversed, and the cause remanded for further proceedings. Smith, Greene, Ellis, JJ., concurring.

Per Curiam: This was an action brought in justice’s •court by the Acme Harvester Company against E. Erne to recover on two promissory notes given in payment of a harvesting-machine. Defendant filed a •cross-demand, alleging the purchase of the header and the giving of the notes upon an express warranty, partly in writing and partly oral; that the machine •did not comply with the warranty, but was defective ; and that he was damaged in the sum of $300 by reason •of failing to get his crop saved in the years 1895 and 1896 on account of the defective condition of the ■machine. He demanded a cancelation of the notes and judgment for the sum of $300. The defendant ■recovered in justice’s court and plaintiff appealed to the district court, where the defendant again had judgment, and plaintiff brings error. The execution of the notes being admitted, and the foundation of defendant’s cross-demand being based upon the breach of an express warranty of the machine purchased, it was incumbent on the defendant to provu not only the existence of such warranty, but also its terms and conditions, the breach thereof, and the damages sustained, to defeat a recovery by plaintiff on the notes, or to entitle the defendant to an offset against the sámev Upon the trial the defendant wholly failed to prove either the existence of the express warranty pleaded or its terms and conditions; hence the demurrer to the evidence by plaintiff should have been sustained. However, the plaintiff supplied this defect on the trial and made proof of a written warranty on which the machine was sold by plaintiff to defendant. Had the defendant then proved compliance with the conditions and agreements contained in this warranty, precedent on his part to be performed before recovery, and a breach of the conditions and obligations of the plaintiff,, he might still have recovered. However, as to the notice to the company, the return of the machine, and other express conditions by the terms of the warranty proved imposed on defendant, to be by him performed to entitle him to the right of recovery against the plaintiff, he failed to prove compliance with them, excuse for non-performance, or waiver by the plaintiff. There was also error in the admission of evidence offered by defendant to sustain the allegations of damages pleaded sufficient to work a reversal of the judgment. For these reasons, the judgment must be reversed and the cause remanded for a new trial. Cunningham, Gbbene, Pollock, JJ.

The opinion of the court was delivered by Pollock, J. : The defendant in error, owner of an improved lot in the city of Oswego, mortgaged it to .plaintiff in error, which mortgage was transferred to jthe Perkeoman Trust Company. Upon default in payment the trust company foreclosed the mortgage, the decree providing for sale, subject to eighteen. ■ months’ redemption, as provided by law. At the foreclosure sale, the Deming Investment Company, plaintiff in error, purchased the property and received a certificate of purchase thereon. Thereafter, the investment company applied for, received and paid for a policy of insurance on the building situate upon the property. The building was wholly destroyed by fire and the insurance thereon paid to the investment company. Thereafter, and within the period allowed by law, the defendant in error redeemed from the foreclosure sale and brought this action to recover from the investment company the money received by it from the insurance company. At the trial plaintiff had judgment. The investment company brings error. From the facts as stated, taken from the agreed statement of facts found in the record, there arises in this case no question as to the validity of the contract of insurance between the investment company and the insurance company; no question as to the insurable interest of the investment company in the property. The only question presented for determination is who was entitled to the sum of money realized upon the policy of insurance. It will be perceived that this is not a case in which the insurance was procured by virtue of an agreement between a mortgagor and mortgagee, contained in the mortgage or otherwise, by which the premium paid became a lien on the mortgaged property or a personal liability of the mortgagor. In this case the investment company, the purchaser at the foreclosure sale, made application, procured and paid for the policy of insurance on the property to protect itself against the loss of its interest in the property from fire. In such case it is well settled, both upon principle and by the authorities, that the contract of insurance is a personal contract of indemnity between the purchaser and the insurance company alone, which does not inure to the benefit of the party entitled to redeem and in which he can claim no interest what ever; and the purchaser, having collected that which he has purchased and for which he has paid, is under no obligation to account for it, either by reduction in the amount necessary to redeem or to the redemptioner. (Cushing v. Thompson, 34 Me. 496; McIntire v. Plaisted, 68 id. 363; 16 A. & E. Encycl. of L. [2d ed.] 844; Jones, Mortg. [2d ed.] § 240; May, Ins. §456; King v. The State Mutual Fire Insurance Company, 61 Mass. [7 Cush.] 1; 54 Am. Dec. 683.) It follows that the judgment must be reversed and the case remanded, with directions to enter judgment in favor of defendant upon the agreed statement of facts. Cunningham, Greene, JJ., concurring.

The opinion of the court was delivered by Pollock, J. : The Kansas Grain Company, a Missouri corporation, was, on June 2, 1898, indebted to plaintiff in error upon promissory notes aggregating, face value, $20,000. To secure payment of these notes, the grain company, upon said date, made plaintiff in error its first mortgage on certain grain-elevator properties in Reno and other counties of this state. The grain company being insolvent, and default in payment of the notes having occurred, suit in foreclosure was brought, and, on October 19, 1894, a decree of foreclosure of the mortgage so given and judgment in favor of plaintiff in error in the sum of $22,556.66 was entered, and one S. T. Hutton was appointed receiver, to collect rents, care for and sell the mortgaged property. Upon the coming in of the report of the receiver and a settlement of his accounts, it was found he had in his hands, collected from the rentals and sale of the mortgaged property, the net sum of $13,797.27, which was by the court ordered to be applied upon the judgment of plaintiff. It was further ordered by the court that the sale of the real estate made by the receiver was subject to the eighteen months’ statutory period of redemption. The receiver was continued in possession of the real estate during this period of redemption' to prevent waste, and was directed by the court, to rent the properties duying this period of redemption, which was done by the receiver’s leasing the same to plaintiff in error for the sum of $1200, the latter having theretofore purchased the same at the receiver’s sale. Before the expiration of the period of redemption, the grain company filed its motion, claiming the pro ceeds of the rentals in the hands of the receiver accruing during the period of redemption. Plaintiff in error, having caused execution to issue upon the deficiency judgment, which was returned nulla bona, also filed its motion, asking an order of the court upon the receiver to pay the proceeds in his hands arising during the period of redemption upon its judgment remaining unsatisfied. > The grain company, however, by assignment in writing, conveyed one-half, of its interest in such rentals to L. B. Young and the remaining one-half to H. Whiteside, in payment of attorney’s fees. Upon January 23, 1897, Young and Whiteside filed their interpleas, duly verified, each claiming one-half of the proceeds in the hands of the receiver arising from the rental of the property during the period of redemption. At the expiration of the period of redemption, the settlement of the accounts of the receiver for moneys collected during the period of redemption came on for hearing. It was by the court found that there remained in the hands of the receiver, arising out of the rental of the properties during the period of redemption, over and above expenses incurred by the receiver in the payment of taxes and caring for the property, and his compensation, the sum of $807.87, and that each of- said interpleaders was entitled to receive one-half .thereof, being the sum of $403.69. The application of plaintiff in error, that the net proceeds in the hands of the receiver arising from rentals of the property during the period of redemption be applied upon the unsatisfied judgment of plaintiff in error, was refused and denied. To obtain a reversal of this order making distribution of the funds held by the receiver, this proceeding in error is brought. The only question to be determined, by this court is, Where real estate is sold under the act of 1893, subject to the right of redemption in the mortgagor, and a receiver is appointed to take charge of and rent the real estate during the period of redemption to prevent waste of the property, who is entitled to the proceeds arising from the renting of the same by the receiver— the holder of the unsatisfied deficiency judgment, rendered in the foreclosure proceeding, having a first lien upon the mortgaged property; and first moving for an •order upon the receiver to apply the same to the payment of such judgment after return of execution nulla bona, or the assignee of the mortgagor, taking by assignment made after the holder of the deficiency judgment has made application for the same ? It is insisted by counsel for plaintiff in error, as there remained unpaid a large amount of the judgment rendered'in its favor a first lien upon the property, and as plaintiff in error, after issuance and return of execution on such deficiency judgment nulla bona, filed its application for an order upon the receiver to pay over to plaintiff in error the proceeds arising from the rentals of the mortgaged property during the period of redemption prior to the assignment of such rentals by the mortgagor, and, as the mortgagor corporation was insolvent, that, in equity, plaintiff in error was entitled to a distribution of the funds in the hands of the receiver to apply upon its judgment, and many cases are cited by counsel in support of this proposition. It is insisted by counsel for the assignees of the mortgagors, interpleaders herein, Young and White-side, that, by the terms of the statute itself, as construed by this court, independent of any principle of equity, the order of the trial court in its disbursement of this fund must be upheld. • It is undoubtedly true, independent of statutory provisions, that where an execution on a deficiency judgment has been returned nulla bona and the judgment debtor is insolvent, and a bill in equity has been filed to subject any remaining property of the judgment debtor to the payment of a deficiency judgment, an equitable lien is created upon any fund at the time in the custody of the court. But this general doctrine of the application of equitable principles must give way before positive statutory provisions enacted for the purpose of determining the rights of parties to such funds. Section 24, chapter 109, Laws of 1893 (Gen. Stat. 1901, §4950) provides: “The holder of a certificate of purchase shall be entitled to prevent any waste or destruction of the premises purchased, and for that purpose the court, on proper showing, may issue an injunction; or, when required to protect said premises against waste, appoint and place in charge thereof a receiver, who shall hold' said premises until such time as -the purchaser is entitled to a deed, and shall be entitled to rent, control and manage the same ; but the income during said time, except what is necessary to keep up repairs and prevent waste, shall go tó the owner or defendant in execution, or the owner of its legal title.” The only authority of the court to continue the receiver in possession of the real estate sold by him and purchased by plaintiff in error during the period of redemption in this case was by virtue of this statutory provision. In the face of this statutory provision there is no room left for the application of the general principles of equity. The income of the property in the hands of the receiver, except so much thereof as was necessary properly to care for the property in order to prevent waste, belonged to the mortgagor, and, being the property of the mortgagor, it had the right to assign the same to the interpleaders, free and discharged of any equitable lien in favor of the plaintiff in error. It follows that the order of the district court must be affirmed. Doster, O.J., Johnston, Greene, JJ., concurring.

Error from Sedgwick district court.

Error from Lyon district court.

The opinion of the court was delivered by CunninghaA, J.: This was an action by the defendant in error to recover damages from the railway cbmpany for personal injuries received in its employ. He was head brakeman on a freight-train which had just pulled into the yards at Arkansas City. The air-brakes were negligently applied by a yardman at the rear of the train, and, in consequence of the sudden stopping of the train thereby, the plaintiff, who was-standing on the front end of the train, was violently thrown to the ground and sustained a severe sprain of his ankles. The injury was had on the 8th-day of December, 1896. *He was attended by Doctor Dunning, the company’s local surgeon at Arkansas City, for some little ■ time, and became gradually better, so that he was able to get around,, and thought he would eventually fully recover. On April 19, 1897, Mr. Smith, a claim agent of the railway company, went to Arkansas City to effect a settlement between the company and plaintiff for his injuries. Plaintiff wanted $1000 at first, but, after some negotiation, he finally agreed to accept, $450. This amount was paid him, and he gave a re ceipt in full satisfaction of all claims and demands whatsoever growing out of the injuries received by him on December 8, 1896. On October 7, 1898/ he brought his action against the railway company to recover damages for his injuries. The company answered, setting up, among other things, the settlement and discharge which plaintiff had made. The latter replied that the discharge had been obtained through the fraud of the agents of the railway company. Upon the trial, after all the evidence was in, the railway company asked the court to instruct the jury to return a verdict in its favor, upon the theory that no sufficient evidence had been adduced to prove fraud in the procurement of the release from liability.. The court refused so to instruct. In our opinion the instruction should have been given, and, while several errors are urged by plaintiff in error, we shall discuss only the sufficiency of the evidence to invalidate the discharge of liability, as'that will dispose of the case. It seems that Mr. Smith sent word to the plaintiff to meet him at the depot if he desired to make a settlement with the company, and that in pursuance of that notice the plaintiff did hunt up Mr. Smith, and the latter told him he was prepared to make settlement ; that he had. seen Doctor Dunning, and Doctor Dunning had said that plaintiff’s injuries were not permanent. Plaintiff then' told Smith that he would go and see the doctor, and see what he had to say. This he did, and plaintiff testified on direct examination as follows: “When I went to the office I told him (Doctor Dunning) what I came for, and told him I was about to settle, and asked him what he thought about it; asked him if he thought I would be able to go to work in two months. He says, ‘I don’t see why you can’t now.’ I says, ‘You don’t think my injuries are permanent?’ He said: ‘No, no, I don’t think they are permanent; you will be all right.’ ” Upon cross-examination, he said : “I asked him what he thought of my foot, and asked him if he thought it was permanently injured. He said : ‘Why, no, it is hot a permanent injury ; it will be all right in a short time.’ ” At the time of this conversation and settlement the plaintiff believed from his own feelings, and from the favorable progress that had been made during the four months that had passed since his injury, that he would be well in two months more. Doctor Dunning testified as follows : “Mr. Bennett first came to me and said he was going to make a settlement with the railroad.. I asked him why he made the settlement at that time ; why he didn’t defer the settlement until' he was well or was better. And he remarked that he needed the money. He asked me the question, how long would he be disabled. I told him no one, no physician, could state definitely the length of time; might be longer or shorter.” He further testified on cross-examination that he did not know at the time of this conversation whether the plaintiff’s injuries were permanent or not. The plaintiff denied that Doctor Dunning told him that no one could foretell the results of the sprain. Thereupon, acting upon all this information, a settlement was made. It was shown-on the trial that theffnjuries were of a permanent character. Taken at its strongest, does all this show such fraud on the part of the officers or agents of the railway company as will invalidate this settlement and permit plaintiff to ignore it ? This settlement was made more than four months after the injury. Plaintiff at the time was in possession of. all his faculties. He had noted the progress of the injury toward recovery. It was his opinion that he was not permanently injured. He desired the opinion of a medical man upon this subject, and for this purpose he sought Doctor Dunning. Doctor Dunning did not seek him. He knew the relation which the doctor sustained to the company, yet, knowing this, he went to him for his opinion upon the matter. In effect, he made Doctor Dunning his agent. He was free to go to any source of information, but he deliberately chose to take Doctor Dunning’s opinion on the matter. It was an opinion that he sought. In the nature of the case it could be nothing more. He himself recognized this fact, and he testified that he went to ask the doctor what he thought about his foot and when he would be able to go to work. It was only an.opinion, as to the probability of his recovery which the plaintiff sought and which the doctor gave. Plaintiff well.knew, or ought to have known, that no physician could speak with certainty on this question ; yet knowing this, and after getting the doctor’s opinion, which coincided with the opinion which he. himself had, he acted and made the settlement. He insists, however, that, inasmuch as the doctor told him that his injuries were not permanent, when, as a matter of fact, he did not know whether they were permanent or not, this was such fraud as would enable him to avoid this discharge and release. Wé do not think that the evidence is sufficient to bear out this contention. It appears to us that Doctor Dunning acted perfectly fair and open with the plaintiff. He suggested to him that it would be wise for him to wait, but the plaintiff said he needed the money; and it appears that soon after this he used a portion thereof in the purchase of a home. We think it quite apparent that both plaintiff and Doctor Dunning understood that plaintiff was asking, not for the expression of a fact, but for an opinion, a guess, and, in the giving of this guess, we see no evidence of any purpose on the doctor’s part to mislead. The doctor said : “I do not think your injuries are permanent.”1 Whether or not they were permanent no one could tell. While upon cross-examination the plaintiff says that the doctor said that his injury was not a permanent one, this answer must be read in the light of the question which elicited it, and, really, it is but the expression of what he then thought about it. The evidence in the case showed that the best the most skilled could do was to give an opinion, and we find in the entire case not the slightest evidence to sustain the contention that the opinion which Doctor Dunning then expressed was not honestly entertained by him. It is too well settled to need the citation of authorities that one has no right to rely on the mere statement of an opinion, or to predicate fraud thereon, so as to avoid or rescind a contract entered into on the strength of such opinion, when such opinion is honestly enter-tained and given. “False representations, to be fraudulent, must be a false statement of f^cts, positively made, not mere matters of erroneous opinions. A concealment, to afford ground of rescission for fraud, must be a wilful suppression of such facts in regard to the subject-matter of the contract as the party making it is bound to disclose.” (1 Beach, Mod. Cont. §799.) “A concealment, to afford ground of rescission for fraud, must be a wilful suppression of such facts in regard to the subject-matter of the contract as the party making it is bound to disclose.” (Rison v. Newberry, 90 Va. 522, 18 S. E. 916.) The case of Homuth v. Street Ry. Co., 129 Mo. 629, 31 S. W. 903, was an action for an injury of much the same character as the one in this case. Plaintiff there sought to avoid a satisfaction of her damages by showing that a physician in the employ of the defendant, in answer to her question as to the extent of her injuries, told her she would be well in a short time. The court in discussing the matter, on page 644, said: “The question could not have called for more than an opinion from the surgeon as to the probable duration of her trouble, for plaintiff must have known as well as the surgeon that when an injury of that kind will become entirely well must depend upon many conditions more in.the knowledge and control of plaintiff than that of the surgeon whose opinion is sought. Plaintiff must know that there are no fixed rules in surgery by which the day, week or month can be calculated for the recovery of an injury to a member of the body under any and all circumstances. Constitutional infirmities, hidden maladies, unknown to physician or surgeon, special manner of treatment, the nervous temperament, the mental and physical idiosyncrasies of the patient, all constitute elements in the calculation (or more properly said the guess) of time when a given injury by way of a strain, or injury of the kind received by Mrs. Homuth, will be entirely restored. All that can be said by the physician is ‘that all things being favorable, as I now understand the situation, it is my judgment that this or that injury will probably be well in one or two or three or more weeks or months.’ ” In Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066, it was said, on page 764: “It is true, as contended, that expressions of opinion or belief as to what will happen in the future, or of which knowledge in its strict sense cannot be had, are not fraudulent if made in good faith and with no intention to deceive.” (See, also, Hayes v. East Tenn. Railway Co., 89 Ga. 264, 15 S. E. 361; Doty v. Chicago, St. Paul & Kansas City Ry. Co., 49 Minn. 499, 52 N. W. 135.) To set aside the accord and satisfaction entered into by the plaintiff in this case for a good and valuable consideration, when he was in possession of all his faculties, when he was fully advised of the progress of his injury for more than four months, when he, from his experience and feelings, thought he would recover in due time, simply because the doctor in the employ of the railway company, whom the plaintiff voluntarily consulted knowing his relation to the company, honestly expressed an opinion coincident with his own, would be to disregard the rules of law, and hold as nothing the contracts of parties deliberately entered into; it would discourage, rather than encourage, the settlement of the differences of parties out of court. The instruction to the jury to find for the defendant, on all the evidence, ought to have been given. The case will be reversed and remanded, with instructions to set aside the judgment entered, and to enter judgment for the plaintiff in error for its costs. Green, Pollock, JJ., concurring.

The opinion of the court was delivered by Cunningham J.: Counsel for plaintiff in error urges several reasons why the judgment of the court below should be reversed, but they all substantially resolve themselves into two contentions. The first is that Mrs. Jackson should not be held on the note set out in the second cause of action, because the statute of limitations had not been tolled as to her by reason of the payment indorsed thereon; that such payment was made by her husband, not as her agent, and without her knowledge or consent, and that such payment has not been ratified by her. These are all questions of fact which were properly submitted to the jury for its determination. The jury found against the contention of the plaintiff in error, and there is sufficient evidence in the record to uphold and support this finding. It has received the approval of the trial court, and we cannot interfere. The second contention is that, inasmuch as the statute of limitations had excused Mrs. Jackson from personal liability on the first note, and as the property mortgaged to secure that note was her individual property, therefore no foreclosure could be had of the mortgage which secured that note. We cannot give this contention our approval. This note in question was a joint and several obligation of both defendants. Mrs. Jackson mortgaged her property not only to se cure the joint obligation of herself and husband, but the obligation of each severally. The mortgage secured the obligation of the husband as fully as it secured the obligation of the wife. Of course, if the note had been barred as to both, then there would have remained no obligation to enforce ; but until the obligation of both was discharged by payment or otherwise, the lien of the mortgage remained enforceable. The statute of limitations having run in favor of Mrs. Jackson, she was discharged from personal liability on the note, and therefore she sustained the same relation to the note as though she had never signed it, but this in no way affected her agreement that her property should be subjected to the payment of her husband’s debt evidenced by the note, and the case remained the same as though he only had signed the note when it was made, and both had at that time given a mortgage .to secure it. Plaintiff in error cites in support of his contention the case of Schmucker v. Sibert, 18 Kan. 104, where it was held that, when a note is barred, the mortgage securing the same is also barred. "We most cordially indorse the doctrine laid down in that case. The trouble with its application to the case at bar rests in the fact that here the note is not barred, and that here the debt for which "the mortgage was given has not been discharged. We quote with approval what was said in the case of Schmucker v. Sibert, supra, as follows: “So long as the statute does not bar a recovery on the note, it does not a foreclosure of the mortgage.” Plaintiff in error further insists that in some way or other, how she does not clearly point out, the question of principal and surety is in this’ case, and cites the case of Hubbard v. Ogden, 22 Kan. 363, in support of her contention, and that her land should not be held for payment of the note which was outlawed as to her. We are unable to see any application of the case or principle involved to the facts of the case at bar. Here both parties owed the note and both were principals, and the question of suretyship is not involved. Certainly the facts of the case in Hubbard v. Ogden, supra, are not in any sense analogous to the facts of this. We here refer to the case of Perry v. Horack, ante, p. 88, 64 Pac. 990, just decided by this court, which is quite analogous to this, for a fuller discussion of this question, only adding the language of the syllabus in that case, “the debt having been kept alive, the mortgage executed to secure its payment may be foreclosed.” During the progress of the trial plaintiff in error, while a witness, was asked what premises she and her husband occupied as a homestead. The court, upon the objection of the plaintiff, refused to permit the question to be answered. This action of the court is assigned as error. We do not think that the court erred in this ruling. The question itself was vague and indefinite in its form. We hardly think it was warranted by any issues made by the pleadings, and we are further of the opinion that it was wholly immaterial. If it had been shown that the property mortgaged was the homestead of the parties, we cannot see how this fact would be material. It is just as competent for the husband and wife to mortgage their homestead as it is for them to mortgage other real estate, provided the constitutional forms are followed in doing so. It is further claimed that the judgment rendered is an excessive one, because a judgment was rendered against C. M. Jackson for the amount due on both notes and against Mrs. Jackson for the amount due on the last note, and a foreclosure ordered on both judgments. We do not think the objection well taken. The journal entry of judgment fairly shows what is to be done. Of course, there can be but one satisfaction of the entire debt. We find no error in the record, and therefore affirm the judgment of the court below. Johnston, Greene, JJ., concurring.

The opinion of the court was delivered by Smith, J. : This is a proceeding in error brought to review the action of the district court in refusing an application for a peremptory writ of mandamus. The application was made by the state, on the relation of the county attorney of Barton county, and against the Lake Koen Navigation, Reservoir and Irrigation Company, a corporation. The allegations in the application for the writ were, in substance, as follows: The defendant is a corporation organized under the laws of this state for the purpose of constructing a canal or ditch from the Arkansas river to the * ‘ Cheyenne bottoms,” in Barton county, and conducting the waters of said river to where there is in process of construction an artificial lake or reservoir for the storage of wraters, and for the further purpose of maintaining said canal, ditch, and reservoir, ostensibly for navigation, reservoir, irrigation and other purposes incidental thereto. To carry out its ultimate designs, the defendant obtained a right of way consisting of a strip of land 100 feet wide, and extending over the lands situate between the point of inception of the canal or ditch and the “bottoms,” except that part which was then occupied and used for public-highway purposes. The beginning of the canal or ditch is at the Arkansas river, and the ditch company has caused water .to flow through it from the river to the “bottoms,” across certain lands (describing them) and the intervening highways. Safe and adequate bridges have not been made, and the same are necessary by reason of the construction of the canal where it intersects the public highways at fourteen different points. Travel over the roads has been impeded and obstructed, to the great inconvenience and damage of- the public, by reason of the failure of the irrigation company to construct bridges across its ditch at the places mentioned. The prayer is as follows : “ Wherefore, plaintiff prays for a writ of peremptory mandamus to be issued to the defendant, the Lake Koen Navigation, Reservoir and Irrigation Company,, commanding that it forthwith proceed to the construction of safe and adequate bridges at each of the said points on the lines of the said ditch, or canal, where any of the aforesaid highways or public roads are crossed by the same, and where the same has in any manner impeded public travel, and for all such other proper relief,” etc. The irrigation company interposed two objections to the allowance of the writ: (1) That the proceedings were not prosecuted in the name of the real party in interest; (2) that the plaintiff was seeking, by the writ prayed for, the performance by defendant of an act which the law nowhere specially enjoins, that there was no legal obligation on the part of the defendant to do 'the things sought to be enforced, and that the judge had no legal authority to grant the writ. After a hearing, the court below overruled the first objection, but denied to the plaintiff any relief on the second ground, and refused the writ. We agree with the court below in its conclusion that the plaintiff has the legal capacity to maintain the action. The failure on the part of the ditch company to construct bridges after it had cut through the public roads would amount to the destruction of the highway. It would be creating a purpresture, a public nuisance. While the board of county commissioners is given authority by statute to build and repair bridges, and to care for the same, and while it might compel by mandamus the duties imposed by law on the ditch company, yet the state has a paramount authority over the subject of highways. It is of interest to the general public that roads which lead from one county to another, and into and through every township and county in the state, should be kept free from impediments to travel, so that communication may be open and convenient from one end of the state to the other. (Branson v. City of Philadelphia, 47 Pa. St. 329; Ell. Roads & S., 2d ed., § 21.) The statute prescribes that the words “highway” and “road” include public bridges. (Gen. Stat. 1901, §7342.) Section 31, chapter 133, Laws of 1891 (Gen. Stat. 1901, § 3677), reads: “It shall be the duty of the proprietors of any canal, ditch or other conduit constructed for the conveyance of water for beneficial uses to provide and construct all necessary bridges and viaducts for the use of the public in crossing the same. Every such bridge or viaduct shall be so constructed as to be safe and adequate for the purposes for which constructed, and the construction thereof shall in all cases be completed by the time when water shall be caused or permitted to flow in such ditch or other conduit at the place where any such bridge or viaduct shall be required. All such bridges and viaducts, when constructed, shall be and become a part of the public highway, and shall be maintained and kept in repair by the authorities having charge of such highways.” We are relieved from a consideration of the question whether the section of the act above quoted has general application to the whole state from the fact that the scope of the statute as contended for by plaintiff in error i$ conceded by counsel for the irrigation company. The latter say in their brief: “We are prepared to concede that the provisions of the act are general, and that section 81 specially enjoins the duty of constructing bridges at the crossings of public highways, and if the action were prosecuted by the board of county commissioners, after taking the proper steps to determine the necessity for such bridges, the remedy by mandamus might be invoked.” Independently, however, of statutory provisions, we think it is clear that at the common law a duty rests on the company to restore the highways which it intersects, as nearly as may be, to their former condition. In Elliott on Roads and Streets, section 41, it is said: “When franchises are granted to a private corporation to construct canals and railroads, and such a corporation in constructing a canal or railroad makes a bridge necessary at the crossing of a highway, it becomes the duty of the corporation to erect the bridge so made necessary for the public use and convenience.” In the absence of a statute requiring railroad companies crossing a highway and laying their tracks thereon to restore it, as nearly as may be, to its former condition of usefulness and safety, it is held that this duty nevertheless rests upon it. (Ell. Roads & S., 2d ed., § 809 and note.) The irrigation company must restore the highways, as nearly as practicable, to their former condition. The building of bridges is a means to that end. It has destroyed the roads; it must do what is necessary to repair them. The traveling public must not be inconvenienced. Counsel for defendant in error insist that mandamus will not lie to compel the performance of any act not specially enjoined as a duty under the language of section 5184 of the General Statutes of 1901. Having admitted that there is an express statutory requirement resting upon their client to build the bridges in question, it would seem that this contention is at variance with their position as to the scope and operation of section 31, chapter 133, Laws of 1891 (Gen. Stat. 1901, §3677). However, we do not give section 5184 the narrow meaning for which counsel contend. We think that if the performance of a duty is enjoined by law, either by express statutory enactment or by the rules of the common law,.its performance may be compelled by mandamus. The only restriction on the right to invoke such remedy is that there is a plain and adequate remedy in the ordinary course of law. (Gen. Stat. 1901, § 5185.) We are clear that it is the legal duty of the defendant in error to restore the highways which its ditch intersects with suitable bridges, adequate to accommodate all public travel. The judgment of the court below will be reversed, with directions to proceed further in accordance with the views expressed in this opinion. Cunningham, Ellis, JJ., concurring.

Error from Cowley district court.

Error from Coffey district court.

Error from Jefferson district court.

Error from Greenwood district court.

Error from Kingman district court.

Appeal from Allen district court.

The opinion of the court was delivered by Gjreene, J. : At the January, 1898, term of the district court of Greenwood county, the plaintiffs in error were convicted and sentenced to the penitentiary for life for the murder of Joseph New. On February 25, 1898, they filed in said court their joint application for a writ of coram nobis. The court refused to consider such application and dismissed the proceeding. They prosecuted error to this court, where the. order of the court below was reversed and the cause remanded for further proceedings. (Dobbs v. The State, 62 Kan. 108, 61 Pac. 408.) A change of venue was granted to the district court of Woodson county, where a demurrer to the application was sustained, and the plaintiffs in error bring the case to this court. Thel sufficiency of such application is the only question for our consideration. The facts alleged in the application are, in substance, as follows: The plaintiffs in error were arrested on November 11, 1897, charged with the murder of Joseph New, and were confined in jail and permitted to see but-few persons thereafter until their trial, which commenced on January 5, 1898, and therefore could not, with rea sonable diligence, have discovered that they could not have a fair trial. The • reasons given for believing .that they did not have a fair trial are prejudice of the people', and deception and fraud on the part of their attorney. The specific acts of which they complain in this respect are his refusal and failure to ask for a change of venue; to demand for each a separate trial; to exhaust his peremptory challenges; to put the minor children of plaintiff in error Dobbs on the witness-stand to prove an alibi; to permit plaintiffs in error to testify on their own behalf; to place Dobbs’s children on the witness-stand to contradict or explain certain damaging testimony against Dobbs; to object to the most glaring errors in the introduction of evidence ; to object to the insufficiency of the information, and to file a motion for a new trial. It will be observed that many of these contentions are mere conclusions, and that all are matters which must be entrusted largely to the honest judgment of counsel defending in a criminal prosecution. In this instance counsel may have had good reasons for conducting the trial as he did. It may be that he knew that a change of venue was not obtainable, or he may have thought that the interests of his clients would be better protected by going to trial in the county of their home and among their acquaintances, and that he could better sQrve their interests by trying them together. It may be that he did not exhaust all of his peremptory challenges for the reason that, in his judgment, the jurors thus removed would be .replaced by others more objectionable. It is undoubtedly true that lawyers, in the exercise of their, best judgment,, make mistakes, but such cannot be the foundation for a writ of coram nobis, nor generally-a reason for granting a new trial. Counsel may have properly thought that the testimony of the minor children would be overthrown by the weight of circumstances, or it is possible that he knew that the state would be able,to introduce witnesses directly contradicting them; and the same is true of other evidence which, it is claimed, he refused to introduce upon the trial. It is fair to presume that counsel, after an investigation of the facts and circumstances, adopted what seemed the best theory for the defense, and, having entered upon it, could not inject into his case circumstantial and evidentiary facts which, if disproved, would essentially weaken his entire defense. The office of the writ of coram nobis is to bring to the attention of the trial court, and to obtain relief from, errors of fact from which the error in the first judgment would appear. This writ cannot be used to obtain a review of the facts presented to the court at the trial, or which might have been so presented at that trial by the exercise of diligence. The facts alleged in this application were all either known to plaintiffs in error before the trial commenced or became known to them during the trial, or could, by the exercise of reasonable diligence, have been so known. They could, therefore, have been presented to the court during the trial, or upon a motion for a new trial. “If a judgment be erroneous in matter of fact and not in matter of law, it may be reversed in the same court by writ of error cora to nobis; but the error in fact which will render a judgment erroneous must be such as would haye prevented the rendition of such judgment if the fact had appeared on the former trial. And the party seeking to avail himself of this remedy must show that it was owing to no negligence on his part that the fact was not made to appear on the former trial; for if, by the exercise of all reasonable care and diligence, he could have availed himself of the fact on the former trial, then this remedy should be denied him.” (Brigham v. Brewer, 4 Sneed, 432, 435.) It cannot be said that, if the above enumerated facts all be true, and the plaintiffs in error had presented them in the proper manner to the court below, they would have prevented the rendition of the judgment in this case, but whether they would cannot be inquired into upon this application. The common-law writ of coram nobis is not entirely obsolete in Kansas, but it is so largely superseded by statutory methods for obtaining a review of the law and facts that its application is limited to those cases not provided for by statute. In The State v. Asbell, 62 Kan. 209, 61 Pac. 690, it was said: “The writ supplements, but does not supersede, the remedy provided in the code for the granting of new trials or the correction of errors. It is not available where the facts complained of were known before the trial, and where advantage could have been taken of the alleged error at the trial.” A further contention is that their attorney in the court below circulated reports derogatory to the character of plaintiffs in error for the purpose of prejudicing the public mind against them. But what these reports were, to whom made, or that they did operate to their injury, we are not informed ; therefore, if such matter were material in this application, we could not consider it, for want of proof of the fact. Another contention is that, since the trial, one Alvin Ballard, a convict in the penitentiary, has made a confession, in which he states that he and others committed the murder of which plaintiffs in error were convicted, and that they are innocent. There is no showing in the record or application that Ballard would testify to this fact upon a new trial, or that the facts thus alleged by him could be established by others, or that the statement is true. But, admitting it to be true, it is at most but newly-discovered evidence. It was said by this court in The State v. Asbell, supra : “The remedy cannot be invoked on the ground that an important witness testified falsely about a material issue in the case,; nor can newly-discovered evidence, going to the merits of the casé, be used as a basis for the writ.” If the facts alleged in this application could be made available for a writ of coreim nobis, it would be an easy and absolutely certain way of securing a new trial for the defendant in every criminal case. The statute of limitations does not run against the appli-". cation. (The State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141; Powell v. Gott, 13 Mo. 458, 53 Am. Dec. 153.) When time had removed or so scattered the witnesses of the prosecution, or the memory of those who could be obtained had grown dim, a writ of coram nobis would result in certain acquittal. A precedent for granting this writ on the grounds alleged in this application, or on similar grounds, has not been called to our attention, and we doubt if one could be found. Every litigation should have an end, and the law has provided for thé defendants in criminal prosecutions simple and easily attainable means by which they may have their cases reviewed in the trial court, as well as in the supreme court, and, when these remedies are pursued to a conclusion, or are waived, the litigation must end. The judgment of the court below is affirmed. Johnston, Cunningham, Ellis,' JJ.', concurring.