The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11

surface water collected on large water
shed from rains and melted SHOWS which |
Concentrates and cuts for itself a well de- |
fined channel and regularly discharges
that there should be a constant and con-
tinuous flow of water The supply is suf- |
the Waep IS and flows With
some regularity during the heavy rains |
which ordinarily occur in the region.
All the Justices concurring.
Attest: D. A. VALENTINE.
TSeal.1 Clerk Supreme Court.
No. 18.248.
Ed. L. Peckham, Appellant,
NJ. ]. Lane and Mrs. Geraldine Lane ct
Appeal from Barber County. /
AFFIRMED.
Syllabus BY the Court. Mason. J.
l.. The statute of frauds does not pre-
specific performance Of contract by
which the defendant. being the owner of
tract of land, agreed to convey a portion
himself, to the plaintiff.
2. Where in such an action the plaintiff
upon the ground that the defendant had
selected It,. although such selection may
not be- effective because not made IN
count demurrabie. for it may state facts
sufficient to entftle the plaintiff to a con-
tract, although he may not be entitled to
the very part claimed.
3. A contract made by "a managing Of
is to receive a personal beneft in consid-
Grafton Of the location of a station at a
particular place is void as against public
L. In passing upon a demurrer to a petit
ton in an action by a managing officer of
a railroad company for the specific per-
torrance of a contract by which the own
er of a tract of land agreed to convey a
location of a station thereon. the court.
will not presume. IN the absence of aver
ments to that effect, that he made the
contract and brought the suit in behalf of
the COMPANY. or that he had, contracted
with it for the right to hold the land
All the Justices concurrlng.
Attest: D. A. VALENTINE.
ISeaLl Clerk Supreme Court.
No. 1927.
Jay Lupher. Appellant,
The Atchison, Topeka & Santa Fee Rail-
way. Company, Appellee.
REVERSED.
Syllabus. BY the Court. Mason, J.
The fact that tn a brakeman ; N. obtained MS rs
full age when he was in fact but eighteen
years old, a rule of the company forbid
capacity, does not relieve the company
from its obligation to exercise the same
care for his protection that .., is due to any
cover for any injury due to the want of
such care, and not occaSioned by his mi
nority or immaturity.
All the Justices concurring.
Attest: D. A,vALENTINE.
( lSeaL1 Clerk Supreme Court.
No. 1913
Frank NJ Arnold, Appellant,
VS..
Atchison, Topeka and Santa Fe Railway
Company, Appellee.
Appeal from Clark County.
AFFIRMED.
Syllabus. BY the Court. Smith, J..
A passenger in the caboose OF a freight
train who gets into a controversy with a
brakeman over the disposition of some
bedding, claimed by the brakeman as his
striking the brakeman, cannot recover
damages of the railroad company for in
juries received in the fight which ensues.
All the Justices concurr1ng.
Attest: d. A. VALENTINE.
ISeaLl Clerk Supreme Court.
No. 1e, 240.
The Kansas City Long Distance Tele-
phone Company, Appellant,
The PaoIa Telephone COMPANY. Appellee.
Appeal from Miami County.
/ AFFIRMED.
Syllabus By the Court. Bufch, j.
In this case contract between local
telephone company and long distance
telephone company relating to the trans
mission of messages by each one over the
lines Of the other is INTERPRETED and it Is
to forward over the long distance Hing
messages originating at a certain city
with which the local company had no
telephone connection when the contract
was made.
All the justices concurring.
| Attest: d. A. VALENTINE,
(SeaL1 Clerk Supreme Court.
| No. 16 296.
c. NJ. Niquette, Appellee,
" rrraeY. et-a1 Anrallan+
Appeal from Finney County
AFFIRMED.
Syllabus By the Court. Burch, j.
| /. The findings of fact in this case are
sustained by sufficient competent evil
dence.
| q Tender to vendor is not a condition
precedent to the maintenance of an actor
| he has put himself in default by repudiat
| ing the obligation of the contract sale.
3. The will involved in this case granted
power to the executor to sell and convey
/ the real estate in controversy.
4. foreign executor with testamentary
state may make a valid contract to con
vey before the will have been admitted tc
record in this state All that section 1858
/ Gen. Stats. 1901, which governs the mat
ter, requires is that the will shall be o.
record at the time of conveyance.
5. In an action for specific performance
i against foreign executor it not neces
sary that Parliamentary power to convey
be established by a record Of the viii ii
this state; and II the executor plead tn,
| will to show that It contains no grant o.
power to convey he cannot dispute its ex
istence, authenticity or terms.
6. The statute cited in paragraph au
Afhorizeo a foreign executor actfr1Q I1ude