davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
ID. A. VALENTINE,
Clerk Supreme Court.
No. 1850.
The City of Abilene, Kansas
a municipal corporation, ct al.

No. 1880
The City of Abilene. Kansas
a municipal corporation, ct al
c. w. Lambing. ct al.
Error from Dickinson County
REVERSED
syllabus. BY the Court. Johnston. n. ].
J. Engineers chosen and employed by
the mayor and council of a CITY of the
second class to make plans. specifications
and estimates for a sewer system for the
city and to supervise the construction of
Section 1909. General Statutes 1901, under
which a contract was let and a sewer
constructed. owners of lots subject to
70 entoin the work and the assessment on
the ground that the engineers were non
residents and ineligible to be city engi-
neers. that they had not been appointed
and qualified such and that the esti-.
mate and contract were therefore invalid.
Held. that, as the engineers were chosen
by the officers having authority TO an
point city engineers at time when no
one else was in possession of the office of
city engineer and as they acted In behalf
of the city i'm respect to the Improvement
and had been so recognized by the CITY
authorities and others and had faithfully
performed their duties. there was a SUBJ
stantial compliance with the requirement
Of the statute as to an estimate and plain
ton upon the grounds assigned
All the Justices concurring.
Attest: D. A VALENTINE
tSeal-J Clerk Supreme Court.
No. 1880
The st. Louis & San Francisco Railroad
Company
James Stone. Jr.
Error from Cherokee County
AFFIRMED.
Syllabus. By the Court. Benson I
The petition alleged in substance that
the plaintiff had agreed to furnish to par
ties named certain loads of coal at Scam
mon. Kansas on board of cars. payment
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. Is. 61S.
Oliver l. Steinman

No. Is, 618.
Oliver L. Steinman
VS..
The Midland Savings and Loan
Company, ct al.
Error from Allen County.
AFFIRMED.
Syllabus. By the Court. Benson, ].
]. The decision in Loan Co. VS.. Solo
mon. Il Kan. 1885, relating to stipulations
of parties that payments provided for In
an obligation shall be made in, and gov
erned by the laws Of another state. fol-
lowed.
2. A foreign building and loan associa-
ton may lawfully make and enforce the
payment of a loan made to a member in
this state upon a pledge of stock which It
had issued to him before the act of 1855
took effect, although the association
failed to comply with the terms Of that
law. md ceased to do business in this
state when it took effect, such loan be-
ing made in pursuance of stipulation In
the certificate held by the member for
such stock.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. 1863.
st. Louis G. San Francisco
Railroad Company

No. 1859
st. Louis & San Francisco
Railroad Company
VS..
Joseph Mea1man.
Error from Linn county
REVERSED.
Syllabus. BY the Court. Graves i
/. An employee of a railroad company.
plance with full knowledge of its condi-
ton. thereby valves the defect and as
sumes the risk incident thereto
2. An employee who has waived the
defect in an appliance and assumed the
risk as above stated, will be relieved
from such responsibility if he requests
the compar- to repair the defect and re-
ceives a promise that the requested re-
pairs will be made, and because of such
promise, remains in such employment
3. Before such request and promise
will relieve an employee of the assump-
ton of risk. the request must be made
for the purpose OF securing protection by
employee from apprehended danger to
himself. and his continuance in the en-
ployment thereafter with the defective
appliance must be induced by the promise
to repair.
the employment of a railroad company.
With other employees he used handcar
having brakes thereon which were so
worn and defective as to be practically
useless This defective condition con-
tinued for more than two weeks 1t was
open to ordinary observation and for this
period was wen known to the plaintiff.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. Is, $50.
John G. Cooper

No. 1859.
John G. Cooper
VS..
Virginia Bower.
Error from Shawnee county on Petition
for Rehearing. Petition.
DENIED.
Syllabus By the Court. Mason, j.
1. Where a witness is asked what a
party: in whose behalf he is called and
examined. had said about the subject
matter of the litigation, an objection to
the question on the ground that a self
serving declaration Is thereby called for
is sufficiently indicated by the use of the
term Incompetent and the addition OF
the words Irrelevant and immateriaf' do
not SO far detract from its force as to
render 1t unavailing on review.
2. The rule that a general objection to
evidence will not avail when any portion
thereof is admissible does not apply
without modification to an objection
which includes several different PROPOSE
lions. a part OF which are not subject to
the objection. Ordinarily it is incumbent
upon the examiner to frame his question
so that in its entirety 1t is free from the
objection made; otherwise the objection
should be sustained.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08

No. 1854
The ST. Louis & San Francisco
Railroad Company
VS..
L. T. Gaba-
Error from Cherokee county.
AFFIRMED.
Syllabus. By the Court. Benson. J
l.. II party by cross-examinion ELECTS
and retores to the record. lncompetens
testimony which upon his motion had
been stricken out, he is not prejudiced by
the repetition of such testimony on re-
? The extent Of a possible future loss
to be paid in the event of a breach OF
contract may be agreed upon in advance.
where there is difficulty in determimng
damages are uncertain: in such a case
the amount so fixed. il reasonable, will
g. This principle is often applied to
contracts for buildino and when the sum
named is not excessive 1t Is generally
held to be liquidated damages and not
T. The use of the words forfeiture,
penalty and ''liquidated damages" In
due weight should be given to such ex-
pressions in connection with other parts
Of the agreement the subject matter, ana
other facts and circumstances
5. Where materials for a building had
been delivered to a carrier for transpor-
tation which was unreasonably DELAYED
tractor, who was the consignee, the
amount previously agreed upon as dam
ages for the delay in the completion rsGa,U 81
the materials in due time the carrier Will
be held liable for the amount SO PAID, IN
the absence Of evidence of bad faith IN
making the settlement or that the
amount paid was excessive, If properly
notified at the time of shipment of the
use intended and the consequences OF de-
lay.
A true copy.
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
D. A. VALENTINE.
Clerk Supreme Court.

No. 1865.
]. w. Kitchell
VS..
r. 7. Hodgen.
Error from Sedgwick county
AFFIRMED.
Syllabus. BY the Court Burch. ].
GENERALLY declarations against his in
terest made by the vendor of real or per-
sonal property while by hypothesis title
was vested in him are admissible in evil
dence against his vendee.
All the Justices cOncurring
A true copy.
Attest: D. A. VALENTINE
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08

No. 15.64S.
Lee Ames and w. H. Chaffin, partners
doing business under the firm name and
style of The Caldwell Milling Company,
VS..
E. " Snively.
Error from Sumner county.
AFFIRMED.
Syllabus BY the Court. Smith, J.
l. The written contract of employment
COPIED below upon which this action
was brought is held not to have been
anulled by the statement in a letter
from the employer to the employee
THAT your business has been very UNI
satisfactory to US in the extreme" when
the employer thereafter continued 10
fill and ship orders sent by the EN-
pioyee and to pay him commissions
thereon in accordance with the terms Oh
the contract.
2. Whether a written contract is after
its execution, modified by parol agree
ment is a question of fact for the jury
and when the evidence is conflicting the
finding of the jury thereon, approved by
the trial court, is conclusive of the fact,
on appeal to this court
AL the Justices concurring.
A true copy. ,>,r
Attest: u. A. vALhN tiNC,
TSeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. Is. 642.
j. r. Kregar, ct al.

No. 1o642.
j. r. Kregar, ct al.
VS..
Katie Fogarty, ct al.
Error from Geary county.
AFFIRMED.
Syllabus. BY the Court. Benson, j.
l. The fact that government surveyor
meandered the banks of a river is EVIL
dence that the river was navigable, but
is not conclusive of that fact.
g. The act of 1854. declaring the Smoky
Hill and other rivers not navigable. does
not conclusively establish the fact that
they were navigable before. although at
fording an implication that they had been
Heretofore so considered.
2 Both upon the evidence in this case,
and as a matter of judicial knowledge,
the ffding of the district court that the
Smok- Hill river was not navigable is
affirmed.
the defendants ancesor owned the land
on the banks of the river where he
erected the dam In 1874. is sustained by
the evidence reviewed in the opinion.
The conclusions OF the district court
that the defendants milldam had been
ony partially destroyed. and that reason
able efforts were made to rebuild the
ported by the findings; and the forfeiture
provided by section is of the mill-dam act
Chap. 6S. Gen Stat 190D. where the
owner. ..In case the said dam and mills
Connected Herewith shall be destroyed.
shall not begin to rebuild 1t one year after
such destruction. and finish 1t In three
years" did not take effect.
All the Justices concurring.
A true copy.
Attest: D.A. VALENTINE.
ISeaI.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
D. A. VALENTINE.
Clerk Supreme Court.

No. 1889.
Illinois Life Insurance Company
E. D. Benner
Error from Shawnee county
AFFIRMED
Syllabus. By the Court. Johnston, C. ].
l. To support the claim of a novation
the assent of the parties that the new
obligation shall be accepted in extinguish-
ment of an old one is an essential ele-
ment but the substitution may be accom-
plished by either an express or an i'm
piled agreement.
2. Whether the parties gave assent and
intended a novat ton is a question of fact
for the jury and may be determined upon
inferential as well as direct evidence.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
d. A. VALENTINE.
Clerk Supreme Court

No 15.612
The Missouri Pacific Railway Company
W. w. Relf.
Error from Franklin county.
AFFIRMED.
Syllabus BY the Court Smith. j.
Where no through rate between two
railroad stations, in adjoining states and
upOn different railroads, has been 1lieo
with the interstate commerS rec G ioad of
freight is received at one of the stations
and the railroad agent at sucn st ather
station at a certain rate, and, at the
Connecting point of the two railroads
the station agent of the other rallrOao
nlete the carriage to its destination at
the rate specified: Held in the absence
of any showing that the agreed rare rs
like freight between the same stations
were charged a different rate, the con
tract will not be held VOC as 70 Tate is less
than the sum OF the local rates regularly
charged by the respective railroaa CON- OH
panies for like freight peeMees in mart Of
the carriage.
All the Justices concurring.
Attast. d. A. VALENTINE,
fSesii Clerk Supreme Court.
The Atchison, Topeka & Santa F'e
Railway Company
vs..
w B. Henry.
Error from Shawnee county.
REVERSED.
Syllabus BY the Court. Smith, j.
AS between the unjustifiable and negli-
gent failure to deliver goods from a
freight depot upon demand at a time
when there was no reasonable ground to
apprehend damage by flood. and an un-
precedented flood. which a day later
submerged the depot and the goods. to
the damage of the latter; the flood. the
act of God. and not the negligent omis-
sion to deliver, Is the proximte cause of
the damage.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
No. 1883.
The Grand Lodge of the Independent
Order of Odd Fellows of the
State of Kansas
James A. Troutman and Robert Stone.
Error from Usage county.
AFFIRMED.
Syllabus. BY the Court. Smith, j.
/. The Quitclaim deed pleaded as a de-
Tense In this case is held to convey all
rights the plaintiff may have had prior to
the execution and delivery thereof In the
lands upon which an equitable lien h
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. 1857.
B. F. Haag, ct al.

Error from Lyon county.
AFFIRMED.
Syllabus BY the Court. Smith, j.
l. Where a tract of land is encountered
by four mortgages to separate mort
gagees and the holder of the first mort,
gage lien brings action. to which all
decree of foreclosure and order of sale
barring all subsequent lien holders; ana
where. thereafter the holders of the third
and fourth liens assign their mortgages
to the holder of the second lien TO pro-
cure a stay of the sale and to arrange
for the payment of the judgment; and
the second lien holder makes the con-
templated arrangement in good faith and
pays part of the Judgment but fails,
without fault on her part, but through
Inability to complete the payment and
the holder of the first lien proceeds to
sell the land under the judgment; ana the
holder of the second mortgage, in fa1r
competition, buys the land at the master S
for upon the confirmation of the sale:
Held, that by such sale the holders of the
third and fourth liens are Invested of all
their interest in the land and the relation
of trustee and cestui que trust does not
exist between the purchaser and such
former lien holders
@ Where in such case the original own
err and mortgagor of the land has, prior
action made a deed of the land to the
holders of the second and third liens. but
which deed is really mortgage to Sc
cure his indebtedness. his rights to the
land are also foreclosed by the action, he
being a party thereto. and he is not en-
titled to an accounting in an action to
recover the stipulated rent by the pur-
chaser from whom he has rented the
land after the sale.
All the Justices concurr1ng.
A true copy.
Attest: d. A. VALENTINE,
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. Is, 657.
Phenix Insurance Co.

Phenix Insurance Co.
vs..
John Stah1-
Error from Brown County.
REVERSED.
Syllabus. BY the Court Smith, j.
The words exclusive of costs" as
used in subdivision 3. section 5O1S, OF the
General Statutes of 1901 mean such costs
as are provided for by statute and
which may be computed and taxed by
the clerk of the court. and do not in
clude any allowance as an attorney
fee to the prevailing party, the amount
of which cannot be computed and de-
termined under statutory provisions, but
which as to amount, must be determined
judicially by the court
All the justices coneurring.
A true copy.
Attest: d. A. NALENT1N
ISeaL1 Clerk supreme court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-08
No. Is. 900.
The City of Topeka


Roy Crawford
Error from Shawnee county
AFFIRMED.
syllabus By the Court. Benson l.
J. Where the revised ordinances of a
city OF the first class are published in a
book by authority of the city an ordi-
nance embraced in such book in which it
is provided that it shall take effect upon
such publication. is sufficiently publish
ed and will take effect accordingly If
more than fifty copies of such book are
issued.
A complaint for the violation of an
ordinance relating to labor on Sunday
which alleges that the offense was COM
m1tted on the - day of October 1907 on
the first day of the week, commonly
called Sunday. is sufficiently specific as
to time.
3. To keep open. manage and superin-
tend a theater and sell tickets therein on
Sunday is labor within the meaning of
the ordinance which provides that:
Every person who shall either labor
himself. or compel his apprentice, ser
want or any other person in his charge
or control, to labor or perform any work
other than the household offices of daily
necessity, or other works of necessity or
charity, on the first day of the week.
commonly called Sunday, shall be deem.
ed guilty Of misdemeanor, .........."
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22
WANT ELECTRIC LIGHT
FRANCHISE

!: At.the next meeting Of the Whitefsh
town council q proposition will be con-
sidered to grant franchise to the Big
Bend Light and Power Co. to install an
electric lighting plant in this city. Rep
resentatives Of the power company were
in town last month and interviewed the
city officials in regard to the matter, and
franchise ordinance has now been sub
mitted which will be considered at the
June meeting.
It is understood that the company
seeking the franchise is ready to install
lighting system upon very short notice,
as they already have plant ON hand
which is not in operation and which it il
intended to remove to Whitefish. ).
A 35-year franchise is asked for, the
city to use street lights amounting to
at least $l2O per month. 1t is also provided
that after the expiration of two years
and before the expiration of six years,
the city shall have the right to purchase
the plant at price to be determined BY
the earnings, which sum shall be an
amount upon which the net earnings Of
the business, for the year previous to the
transfer, will pay 10 per cent annual in
terest. The applicants agree to have the
system in operation by January l, 1909.
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22
Railroad News

ANOTHER DREAM.
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22

Someone's making a fuss, or so it would
seem, ...
About James g. R. and his beautiful dream
It would look to all men who have known
Jim for years
That to talk of profanity would bring him
to tears.
If the recording angel will look ON his slate
He'll find that he's made an awful mistake;
He's got mixed with some hoghead with
switching to do,
Or tallow pot called for the 1862.
He has nothing at all to canse him to swear
Az be sits at his work iu' his nice cushioned
chair. .s''
With very sweet smile and his pipe In his
face, ".
To speak Ill of ] G. would be disgrace.
Such insinuations will really do harm.
For he never says moro than a common
gosh darn"
Such poems are ilibels ON our leading men,
And the boomers who write them should be
in the pen. r.
And as for the hnsheads, they lcok at the
book i...''
just to catch Jim mapping by hook or by
crook.
But ]. G IS not asleep. and his machinists are
Who are known to be handy with pencil or
pen
Engine failures now are things of the past,
For they never could happen under mon In
Jim's class. 81 -
No. the boomers mistaken bout Jim and
his dream,
For he goes home at night with his mind
quite serene,
And comes down next day to find nothing to
do;
So thanking you kindly. Ill bid you adieu.
AIR GAUGE.
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22
Fortine

Captain and Mrs. Lucas left Monday
morning for Spokane, where they will re-
main until the 22nd. Then they go to
Seattle to take in the naval exhibit and
to visit Mr.. Lucas brother.
Hugh Colson and son, Earl, went to
Washington last week. Earl returned
Saturday. Mr.. Colson is looking up q
location, as he expects to move his fam
lily there about July l.
Mr.. Elemming went to Whitefish Sat
urday, having secured position on the
Great Northern as tlmekecper for the
extra gang, he leaves town this week.
Miss Eva Breton of Stryker is sewing
for Mrs. Geo. johnson this:week.
Mr.. and Mrs. Ray Ward spent Mon
day in town, leaving. later for Bonners
Ferry, where Mr.. Ward is stationed on
the reserve.
Mr.. Allen, having resigned his position
as operator at this place, the Great North
ern transferred Mrs. Dickeshoff, who has
been station agent at Olney for some
time, to take his place.
Geo. johnson made business trip. to
kalispell Monday.
George Gross was shaking hands with
friends at the station Saturday. He was
enroute to Spokane. &.
W. H. Bartlett went to Kalispell Mon
day.
Word comes from Olney that Ed For
tine has captured fine brown bear.
Miss Lorraine Bartlett left Monday for
a two weeks visit with her relatives, Mr..
and Mrs. Will Laderoot, in Somers.
Messrs. Huffman, Clark and Better
brought IN an unusually large black bear
which they killed after very thrilling
experience, last Thursday.
Edward Better, Rollo Older, Art North
and Mr.. OShea left Thursday for Seattle
to take in the naval display there Satur-
day.
Mrs. E. F. White spent Tuesday at
the Bradley home in Eureka.
Rev. Snow of Eureka gave a very in
structive and interesting illustrated SER
mon last Friday night. There will be
preaching again May %. |
Ernest White was called to Kalispell
the 10th as witness ON behalf of the
United States in land case.
Mrs. Flemming's sister, Miss Brancher,
a trained nurse from Chicago, left Satur-
day for Kalispcll where she was called to
take charge of a patient.
The Eureka Lumber company finished
the drive of logs from Bakers camp last
Friday.
Mr.. Allen and son took the train Tues
day morning for Seattle.
Miss Anna l.. Clark of Eureka spent
Saturday in our little burg.
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22
COUNCIL holds QUITE
Session

There was : ss}ecial meeting of thu
town council Monday night, the official.
present being Mayor Snyder. Clerk
Maiden, and Aldefinen McCabe, Hall,
Little and Skyhs.
The matter oferecting the fire tower
and placing the fire bell was referred tc
the Are committees with power to act.
A 6-foot sidewalk was ordered built on
the north side # Second street, between
L,ipfer avenue and the river.
The electric light franchise ordinance
was read for tire first time and referred
to the ordinances committee. There was
no discussion d the measure.
The clerk was Instructed to order a
nozzle for the A1e eepar artment, and other
minor equipmsst. y
The Whitefish pilot. [volume] (Whitefish, Mont.) 1904-current, 1908-05-22

! Hayre railroad men have orgaHixed n
baseball team.
Conductor Thos. Miller has returned
from his run at Fernie and will again be
located at Whitcfish.
The examining board was in town in
their special car last week and conducted
an examination on the book of rules, and
gave instructions to the employees on this
division. .a-- .,.
Engines of the 1900 class are now be-
ing sent out from st. Paul. They are
all of the Mallett type, IL whcelcrs, artic-
ulating compounds, but larger than the
1900 class.
Work upon the stock yards in the
eastern part of the railroad yards, which
was suspended last fall when the re-
trenchment order went forth, has now
been resumed, and it is understood that
the yards are to be completed. y
The work of ballasting the roadbed be-
tween this city and Shelby Junction is
progressing rapidly The line is being
put in shape for the heavy trains of the
Burlington that are to run this way when
the Billings 4 Northern is completed
Rocky Mountain Husbandman.
Senator Thos. d. Long has received =
letter from General Manager Gruber of
the Great Northern stating that the
double train service between Kalispell
and Somers is put on by the company al
an experiment. If it pays it will be con.
tinued. If not, the train will be taken
of.-Inter Lake.
The Northern Pacific Railway COM
pany has deposited with Surveyor Gen
eral Cone $lOl, 300, being the cost of sur
veying 5000, 900 acres Of land in Mon
tana. 1t is the largest fee ever deposited
in the Office Of q surveyor general in the
United States. The land to be surveyed
is in Eastern Montana, and includes that
portion of the railroad grant between
Dillingham; the North Dakota line. As
soon rs surveyed it will be thrown on the
market to be sold to actual settlers. Con-
tracts for the surveys will he awarded
this season.