davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1902.
Benjamin II. Sharp,
George f. McColm and Viola McColm
Error from Ford County
REVERSED

George r. McColm and Viola McColm
Error from Ford County.
REVERSED.
Syllabus. BY the Court Burch. ].
l. copy of the mortgage involved at
tached to and made a part of the petition
in a foreclosure suit controls all general
recitals of the petition at variance with
the copy, and if the land affected be mis-
described in the body of the petition a cor
rect description in the copy will govern.
-, An affidavit for service by publica-
that the action is one to foreclose a real
estate mortgage and to sell land to salts
~ the lien of such mortgage establishes
a basis for publication sufficient against
collateral attack without describing the
land; and if the disclosure referred to be
made. a misdescription of the land may
be ignored.
5. a notice by publication in a fore
closure suit which is otherwise sufficient
viii confer jurisdiction if the general ma
ture of the Judgment to be rendered be
stated. 1t is not essential TO Jurisdiction
that al the details of the judgment be
stated with precision and certainty. The
real estate involved need not be descrih-
ed at all; and If the notice show that
judgment will be rendered for the fore
closure Of a real estate mortgage and for
the sale of real estate to satisfy the lien
OF such mortgage misdescriptfon of the
section subdivisions of the land affected
VIII not defeat Jurisdiction.
4 A Judgment which is open to two
Interpretations should be given that mean
Ing, which will make it correct. proper
and valid, rather than the one which
will make it incorrect. improper or in
valid and the pleadings upon which it is
founded may be examined to ascertain
its true intent
8. A default judgment in a foreclosure
suit which refers to the land described in
the petition but which misdescribes such
land will be construed to embrace the
land correctly described in the petition
Johnston, C.. J.. Mason, J.. Smith. J.,
Porter. j., and Graves, J., concurrinr
Benson. J., dissenting
true copy.
Attest: d. A VALENTINE
lSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.

ceased the defendant was referred to as
a s,1 in the caption and also in
the BODY of the petition in connection
with the employment of attorneys. Held
that as the claim set up in the petition
is a personal and not an official liability
OF the defendant the reference to her Off
clai character should be regarded as de-
scriptive of the person and may be re-
1ected as surplusage and the petition held
10 state a cause of action against the de-
PENDANT as an Individual
Burch, j.. Mason, J.. Smith. J., Graves.
Johnston, C. J., and Porter. J.. dissent
ing
A true copy.
Attest: d. A. VALENTINE,
P lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
D. A. VALENTINE,
Clerk Supreme Court.

No. 1854.
The State of Kansas, ex rel, f. S. jack
son, Attorney General.
VS..
VIM. J. Lemp Brewing Company.
Original Proceeding in Quo WarrantO.
JUDGMENT OF CUSTER.
Syllabus. BY the Court Benson. ]
L. The evidence in this case is reviewed.
and found to be sufficient to support the
findings of fact; and it is held that the
findings and evidence support the conclu-
sion that judgment of custer should be
entered.
2. A Missouri corporation whose trav-
cling statesmen solicit and receive orders
in this state for Intoxicating liquors, which
orders. when accepted by the corporation,
are filled by shipping the liquors f. o. b.
cars at ST. Louis to the purchasers, is
engaged in business in Kansas and sub
iect to the provisions of the statutes re-
lating to foreign corporations doing BUSH
ness in this state.
s. Within the recent decisions of the
supreme court of the United States the
provisions of our statute relating to the
taking of orders for Intoxicating liquors
are not repugnant to the commerce clause
of the federal constitution.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.
No. 1887.
a. Z. Comes, ct al.

-.
Error from Chautauqua county
REVERSED.
Syllabus. BY the Court. Porter' d. D.
J. Ordinarily the question whether d
given act or omission is the proNiiilIa, e.
cause of an injury is for the JuISji nc
where the facts are undisputed, ana NV
court can see that the resulting inJuIly
was nor nrobablt. but remote. 1t is the
duty of the court to determine the Dues
tion of proximate cause and not send II
to Il jury. ,<,.,ao,os for.
> in an action to recover damages LOT l1
the loss of drilling tools and machlnJiLE on
fire at well resulting from an eXplosrHI,.
of flowing oil and gas, where tIIe ~ ~
negligence charged is that the owners ~
the well caused the same to be shol VIII ~ u
nitroglycerine late in the evening lhsteaI
of waiting until the following day, t;
failed 10 take precautions before shooting
the well to have the same capped anu anu
connected with tank, and failed 10 ledNI
a suitable person in charge or the Well
during the night, and the evidence SHo ;so
that the explosion occurred ABOUT NM
O'Clock in the nighttime when no one was
present, that there was no IRE ABOUT INC
premises and there is no evidence sIiOm
ing how the escaping oil and gas came IN
contact with fire and nothing 10 snoW "
what the immediate or direct cause OF
the explosion was, held that the alleged
acts of negligence were the remote anu
not the proximate cause OF the lhJui p
that the proximate cause was necessarily
some independent agency. that the acts OF
furnish the condition or give rise 10 the
occasion by which the injury was mace
possible and that on the undlsputed 1acts
a demurrer to the evidence should nave
been sustained.
All the Justices concurrlng.
Attest: D. A. VALENTINE,
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1913.
J. H. Ginter,

J. H. Ginter,
Fred Ginter, ct. al.
Error from Shawnee County.
AFFIRMED.
Syllabus BY the Court. Burch j.
/. To destroy the validity of will UNI
due influence must amount to coercion,
the testator's free agency. and by over
coming his power Of resistance obliges
of e9 his It be brough
to bear directly upon the testamentary
act, and particular. parties must be bene-
fitted or disfavored as the result of the
mind.
2 Generally the same considerations
control when testator is unduly in
| fluenced by Misrepresentation and arti-
frad usaay Pn fraud and
undue influence are distinguishable, more
often than otherwise it is mere matter
sinister is involved which perverts the
testatUr's will by overcoming his power
truly to express his real desires.
g. When contested will appears to
have been duly executed and attested &C
| cording to. the statute of wills the law
presumes it to be valid; This presump-
ton must be overcome by proof and the
burden of proof rests upon whoever al
| leges it to be the product of undue in
l. In all such cases the proof must be
| substantial so that the judges of fact.
| having a proper understanding of what
undue influence is, may perceive by whom
and in what manner it has been exercised.
| 5. In making his proof a contestant is
not limited to the bare facts which he
may be able to adduce but he is entitled
| to the benefit of all inference which may
be legitimately derived from established
facts.
| 6. Suspicion, conjecture, possibility or
guess that undue influence fraud has
| induced a will is not sufficient to support
| a verdict to that effect.
T. Power, motive and opportunity to ex-
ercise undue influence do not alone auth
orize the inference that such influence has
in fact been exercised.
8. The mere existence of confidential
relations between testator and bene-
ficiary under his will does not raise a
presumption that the beneficiary has ex-
and does not cast upon the beneficiary
the burden of disproving undue influ-
ence. Those consequences follow only
! when the beneficiary has been actively
concerned in some way with the prepara-
| ton or execution of the will.
| 8. The right to make will includes the
right to make it according to the tesla
| tors own desires, subject only to the
statutory restrictions. 1t is no condition
of this right that the will shall please
| ives, or any one else. The giving of I'M
| equal portions to the natural objects of
| the testator's bounty raises no presump-
| ton of undue influence The fact may
! be considered in determining the question,
| is this the testators will? but in the abb
sence of proof of undue influence it has
no weight.
/ TO- In this case demurrer was prop
| erly sustained to evidence offered in sup
port of an issue of undue influence and
| fraud in the making of a will.
| All the Justices concurring.
A true copy.
4 Attest: D. A. VALENTINE,
! (SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1887.
City of Hutchinson.

No. 1885,.
City of Hutchinson,
VS..
George w. White.
Error from Reno County.
REVERSED.
Syllabus. BY the Court. Graves, j:
A city of the second class let a contract
for the construction of a drainage canal,
according to plans and specifications pre-
pared by its engineer, which were made
part of the contract. The specifications
gave the dimensions of the canal and
contained statement that the excavat-
ed dirt should be deposited on the banks
of the canal within a specified. space.
1t was subsequently ascertained That the
space designated would not contain the
dirt. but the contractor. relying upon the
specifications. had filled the space therein
named. and was compelled to move the
remainder over and beyond that which
had already been deposited, causing much
additional labor to what would have been
necessary if the mistake in the specifi-
cations had been discovered earlier. The
contract contained a clause that the sum
therein stipulated the limit of the
city's liability. and nothing would be al
lowed for extra work unless authorized
in writing by the city council. No such
writing was made. The contractor claim
ed pay for the extra labor in moving
dirt. Held that he can not recover.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE.
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.


in the. city and transmitting them to per-
sons IN other places within the state
and OF receiving and delivering packages
transmitted from other places within the
state to consignees in the city. Topeka V.
Jones, "A Kan. 164. = =
2. An occupation tax imposed on ex-
press companies under an ordinance
wherein it expressly provided that it shall
only apply to domestic business and never
to interstate business is not a regulation
of or a burden upon Interstate commerce.
g. A tax may be imposed upon the bus
mess done within the state although the
ages from one point to another within
the state passes for a short distance over
the soil of another state
f. 1t is not an objection to the tax that
much the larger part of the business of
such company is interstate. If a small
mess is domestic the express company
cannot escape payment of the state tax
imposed on that part.
All the justices concurring,
true copy.
Attest: D. A. VALENTINE,
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
D. A. VALENTINE,
Clerk Supreme Court.
No. 1888.
Mrs. l.. E. Huey.
49,
]. C. Starr.
Error from Scott County.
REUER GED

j. l..
Error from Scott County.
REVERSED.
Syllabus. BY the Court. Smith. j.
/. In petition for the specific perfor-
nance of a contract to convey land a
cause of action for damages arising out
of the same transaction may be united
and if on the trial the evidence justifies
a decree of specific performance in part
only the court may hereunder appOrtion
the purchase price and damages in ac-
cordance with the evidence If no decree
for a performance of the contract can be
had judgment may be rendered for such
proper damages if any, as are proven.
. A plaintiff in civil action may join
therein as many causes of action as are
authorized by Section SO, Civil Code. and
is entitled to have them all adjudicated
before the final determination of the
cause even though a part thereof may be
triable to the court and a part may be
trlable to a jury.
g. Where a plaintiff in his petition
states facts which entitle him either to a
decree of specific performance of a con-
tract to convey real estate or to a judg-
ment for damages for the failure to con-
Ney and prays judgment for damages in
case the court refuses the decree he may
not be required to elect his remedy be-
fore proceeding to trial
All the justices concurring.
\ true COPY.
Attest: D. A. VALENTINE,
lSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.
-~~-~~~<~~~~~~~-~~~~>-~~-~
No. 1921.
The Illinois Trust and Savings Bank,

No. 1921
The Illinois Trust and Savings Bank,
The City of Burlington.
Error f FE1E E1tsfsX County.
syllabus. BY the Court. Johnston, G. ].
provision in a city ordinance that
a water works company shall extend the
water mains when requested to do so
by majority of all votes cast at any
general or special election at which the
proposition Of such extension shall have
been submitted to the people" means that
the company is not required to make an
voting on any proposition at such cleo
ton vote In favor of the extension.
2 The power to make agreements mod
flying the franchise and contract made
between the water works company and
the city is not incidental to the office
of secretary of the company or of super
intendent of the water plant and an agree
ment OF that kind, If made by such Off
ser is not t binding on the company in the
it or of ratification by the company.
The water works company shut down
earnings were insufficient to meet oper-
ating expenses and a receiver for the
company was. appointed with the consent
of the city who proceeded to operate the
plant and to supply water to the city.
Held that the receiver was in a sense a
trustee for the city and the company and
the city was not in a position to insist
on forfeiture for the non-supply of wa
ter while. 1t was receiving water from
the receiver, nor to claim damages from
the company as If no water had been
furnished.
Where damages provided for in
contract are uncertain in their nature and
cannot well be ascertained by any pecun-
larry standard and where the parties them
selves. understanding the peculiar cir
cumstances surrounding the transaction,
are better able to estimate the loss that
may be sustained by delay or failure of
performance they are permitted to fix the
amount of damages to be recovered.
S. provision in the contract stipu-
lating that If the water works company
shall be temporarily unable to supply wa
ter no rentals shall be paid during such
period and that if the disability be the
fault of the company the rebate for wa
ter rent shall be for double the time the
works are thus disabled should be regard
ed as liquidated damages recoverable by
the city.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1885.
Stephen d. Canaday. ct. al,

No. 1895
Stephen d. Canaday. ct al,
VS..
Emma a. Davis ct al
Error from Gray County
Syllabus BY the Court. Mason
i. Within the meaning of the section of
the act relating to taxation requiring a
SUIT TO defeat tax title to be commenced
ing the deed (Gen. Stat 1901, sec. 76S0o
an action. against a nonresident who is
gun where the plaintiff without causing
a summons to be issued has filed his
petition and affidavit for publication and
caused suitable notice to be delivered to
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1898.
Hattie James
Jane Manning. ct. al.
Error from Wichita county.

Error from Wichita county.
AFFIRMED.
Syllabus By the Court. Graves, j.
l. The holder of four certificates OF sac
of school land. attempted to transfer ms
rights hereunder to his wife. They occu-
pied the land as a homestead.
y 4 written assignment in proper form:
was endorsed upon each certificate, ana
an acknowledgment to the signature OF
the assignor duly attached. The aSslgnor
failed to subscribe his name to one OF the
assignments. but all were duly acknowi-
ficates thus endorsed were all delivered
10 the assignee, and afterwards treated by
them as a complete. final and sausfac-
tory transaction. The assignee paid
twelve dollars in consideration of the as
signments Both parties continued to oc-
cupy the land as homestead Eight
months afterwards the husband died
More than three years afterwards his
daughter commenced an action to recover
one half her fathers interest in the land
covered by the certificate which he omit
ted to sign. claiming that the want of his
signature made the assignment void un-
der the statute of frauds. Held that as
been acquiesced in by the parties, the
statute of frauds did not apply.
> Under section 1872 Gen. Stat. 1901.
tax sale certificate was assigned on the
18th day of March. A deed was issued
to the holder OF the certificate on the 18th
day of September following. Held that
the deed was issued before the expiration
sale certificate as provided by such sec
ton. and is, therefore, void.
All the Justices concurring.
A true copy. -
Attest: D. A. VALENTINE,
ISeaL1 ..., Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 16,39S.
State of Kansas, ex rel, Fred S. Jack
son, Attorney General,
VS..
J. P. Harsha, as Mayor of the City of
Hutchinson, Kansas, and VIM. Snyder.
acting City Clerk of the City of
Hutchinson, Kansas.
Original Proceedings in Mandamus.
WRIT ALLOWED.
Syllabus. By the Court. Smith, ].
Where an amendatory statute, providing
for a primary election of candidates, is
temporarily inapplicable by reason of in
sufficient time for it's operation and the
repealed provisions of the amended statute
provide an applicable method of nominat-
ing such candidate, it will be presumed
that the legislature did not intend the
amendment or the repeal to take effect
as to such nominations; Held in such case
that the former provisions for nominal
lions by petition remain in force until the
amendment becomes applicable.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 16. LIZ.
The City of Leavenworth,
vs.
Ralph A. Ewing.
Error from Leavenworth County.
AFFIRMED.
Syllabus. BY the Court. Johnson c. J.
1. The legislature has authorized the Of
ficers of a city of the first class to i'm
pose a license tax on express companies
and agencies conducting an express bus
mess within the state, that Is the bust
ness of receiving packages from persons
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.

quested; and the denial of request to
require the jury to return more definite
answer to a question submitted. The rec
ord is examined and it is held that no
error appears in the rulings complained
Of
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
NOTICE

~@~~~~~~~>->~-~~~~--~~-~-~
TO WHOM IT MAY CONCERN:
You will take notice that my petition
for permit to sell Intoxicating liquors,
according to law, at my drug store at No.
the city of Topeka, Shawnee county, KAN
sas, is now on file in the office of the pro-
bate judge of said county. and that said
petition will be heard before the probate
judge of said county at his office in the
court house the 18th day of May, 1909, at 10
o'clock a. m.
E. B. WALKER. Applicant.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 15940.
Frank NJ. Boyles,

No. 1890
Frank NJ. Boy1es,
Frank P. Bradley.
Error from Shawnee County.
REVERSED.
Syllabus. BY. the Court. Johnson, c. j:
1. In an action to recover d quantity of
wheat as crop rent plaintiff, the owner of
land alleged and testified that it was
agreed that with the land he was to fur
nish defendant wheat for seed and to re-
ceive as rental one-half of the crop. De-
PENDANT met the issue rendered by a gem
eral denial and offered testimony to the
effect that under the agreement he was
to furnish the seed and give plaintiff a
rental of one-third of the crop and that
he purchased the wheat from plaintiff
that was sown on the land. AS the only
substantial controversy between the par
ties was, who furnished the seed? it was
error to instruct the jury that the bur-
den of proof was upon defendant to show
that he purchased from plaintiff the
wheat which was sown.
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
.(SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1914.
Sarah c. Kiehl,
G. M. Jamison.
Error from Shawnee County.

G. NJ. Jamison.
Error from Shawnee County.
REVERSED.
Syllabus. BY the Court. Porter, J..
l. Where open and unobstructed lands
lying wholly outside the corporate limits
Of a city have been regularly plated and
laid out addition and the streets
dedicated to the public, such streets or
roads can not be regarded as unopened
and unused within the meaning of sec
ton 6O6S, General Statutes 1901, making
county roads vacant which have remain
ed unopened for public use for seven
years.
2. Neither the failure of the county
authorities formally to open up and work
the streets in such an addition. nor the
fact that such streets have not been used
by the public, will make them in law
closed or unopened streets where every
thing was done at the time the plat was
filed which was necessary TO open them
for public use.
ALI the justices concurring.
A true COPY.
Attest: D. A. VALENTINE,
tSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1888.
Detlof Lebner,

No IS 933
Detlof Lebner,
The Metropolitan Street Railway Com
pany.
Error from the Court of Common Pleas
of Wyandotte County.
REVERSED.
Syllabus. By the Court. johnson, G. J.
l. While it cannot be declared negli-
gence as a matter of law for a street rail-
way company to .allow its cars to be
crowded with passengers yet if the com,
pany permits its cars to become so crowded
that a passenger is pushed off and in
jured the question of whether the over
crowdfng of the cars is negligence is one
of fact for the jury.
:. The mere fact that person rides
on a crowded car, or the platform of such
car, the invitation of a railway COM
pany cannot be regarded contributory
negligence per Sc
3. One who rides on crowded car as
sumes the inconvenience resulting from
its crowded condition but the company is
not for that reason relieved from the re-
sponsibility of using due care for the safe
ty of the passengers invited upon such
crowded car
f. Whether a person who enters a car
of street railway company which is al
ready crowded and rides on a crowded
platform from which he is showed off
and injured is guilty of contributory neg
ligence is question to be determined
by the jury under all the circumstances
brought out in the evidence.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeaL1 Clerk Supreme Court.