The Advocate and news., 1897-11-24

obtain review of any part OF such instruc-
tlOns.
6. In an action for malicious prosecution,
the question of probable cause Is one of
law for the court to determine. II the un-
disputed facts show that there either was,
or was not probable cause, the court should
so find, and should instruct the jury that
there was or was not probable cause shown.
IL, however, there Is substantial dispute
about the facts which constitute the prob
able cause or the want thereof, II Is for the
jury to determine what facts are proved,
and for the court to say whether they
amount to probable cause.
All the Judges concurring
A true copy.
Attest W. o. CHAMPE,
lSeaLl Clerk.
Kansas Court Of Appeals, Southern De-
partment, Eastern Division.
No. 10.
r. McGrath, plaintiff in error,
Vs.
Frank Grouse, administrator, defendant in
error.
Error from Franklin District Court.
AFFIRMED
Syllabus. by the Court. Dennson, p. ].
l. Where a written contract contains a
stipulation that "all disputes or questions
that may arise in regard to prices of stock,
shall he settled by reliable and compe-
tent person agreed upon by the parties to
this contract" Held, that such stipu-
lation Is not condition precedent to the
maintenance of suit and Is a matter Of
defense.
g. Where written contract provides that
the goods shall be listed at "cost in mar
ket' with per cent. added, parol testimony
Is admissible to show the meaning given
to the terms, by the parties to the contract
3. Where a written contract fails to pro-
vide means by which the price of fixtures
and tools are to be determined, proof of an
oral contract as to their price Is admissible
4. Where the trial court enormously per-
mlts the introduction of testimony which
contradicts or varies the terms of a writ
ten contract as to the price of certain
goods, and where the jury In their answers
to special questions state that they allow
the plaintiff nothing on account Of such
goods: Held, that the substantial rights of
the defendant are not prejudiced thereby,
and the error Is immaterial.
5. The instructions refused and given and
the special questions refused and given,
examined, and no error found I'm the rITl-
ings of the trial court theron.
All the Judges concurring.
A true copy.
Attest w. o. CHAMPE.
ISeall Clerk.
Kansas Court of Appeals, Southern De-
partment Eastern Division,
No. 1876.
The Kansas & Texas Coal Company, plain
tiff in error,
j. J. Judd and Mary Judd, defendants in
error.
Error from Cherokee District Court
AFFIRMED.
syllabus. BY the Court. Dennison, p ].
|. Where the owner of farm has es-
tablished her homestead thereon, she may
leave the same for a temporary purpose,
with the. intention of returning, and IL
during all the time of such absence
she retains that intention and refrains from
establishing a homestead elsewhere, she
has not abandoned the farm as her home
stead.
All the Judges concurring.
A true copy.
Attest: w, o. CHAMPE,
fSeall Clerk.
Kansas Court Of Appeals, Southern De-
partment, Eastern Division.
No 1856
Atchison, Topeka & Santa Fe Railroad
Company plaintiff in error,
VS..
II. l.. Owens, defendant in error.
Error from Montgomery District Court.
REVERSED.
Syllabus. BY the Court. Schoonover, J.
1. The case of Railway Company VS.. Ly-
can, 81 Kas. 6S5, followed as to proof of
value of hedge fence and clover fields de-
stroyed by fire resulting from negligence
of n railroad company.
2. The proof and findings OF the jury as
basis for their general verdict should cor