davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

No 1873.
The Central Lumber Company, AppelIees
The Arkansas Valley Lumber Company,
Appellant
Appeal from SeGgwick county.
AFFIRMED.
Syllabus By the Court. Burch, J.
1. If before the time for delivery ar
rives the seller notify the buyer that a
portion of the goods Will not be delivered
it is the duty of the buyer to mitigate
damages by going into the market and
buying other goods. If he is able to do So
2 In an action by the buyer for dam
ages occasioned by the sellers refusal to
deliver, the burden rests upon the seller
to show that, after notice that the con-
livery, the buyer might have protected
himself from loss by purchasing other
goods.
8. In the absence of proof by the seller
of the character just stated the damages
should be assessed as of the date when,
under the contract. the goods should have
been delivered.
4. Under contract contemplating de-
livery in several car load lots to be paid
for in part on receipt Of the invoice for
each car and the balance on receipt of
the car, the seller is not obliged to make
further delivery when the buyer is in de-
fault, which has not been waived. in his
payments for previous shipments.
g. If the seller has been guilty of the
first breach of the contract and be him
self in fault, which has not been waived.
he canot claim the right to reSc1nd be-
cause payments for deliveries subsequent
to his default have been withheld.
6. If in an action for damages for re-
fusal to deliver the buyer elect to plead
default and reputation of the contract
by the seller on a specified day, he is
bound by his pleading He valves pre-
vious defaults on the part of the seller
and the seller is entitled to the benefit OF
the rule stated in paragraph 4.
All the Justices concurrtng-
A true copy.
Attest. D. A VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
D. A. VALENTINE,
Clerk Supreme Court.
No. 1872.
Charles E. Gibson, Appellee,


Amos Walters, ct al, Appellants.
Appeal from Meade county.
AFFIRMED.
Syllabus. BY the Court Porter, J.
l. There is no statutory provision re-
quiring proof of publication of sheriff s
sale notice by the affidavit of the printer
The sherif's return should show publ
cation and the confirmation of the sale Is
an adjudication that notice was duly pub
1shed. The record may be supplemented
by the evidence OF the publisher or printer
and by the files of the newspaper showing
such publication.
2. The taking out of second tax deed
for the purpose of correcting defects In
former tax deed has the effect OF re-
opening the question of the validity of
both deeds and of the regularity OF the
tax proceedings, unless the first deed was
one which fully complied with the statute
and notwithstanding the defects in the
first deed may have been otherwise cured
by the lapse of five years from the time
it was recorded.
3. A tax deed which is assaiIed within
two years from the time it was recorded
is held void upon the proof showing that
the tax roll of the year for the taxes of
which 1t was sold described the land as
less than full uuarter-section and gave
the number of acres; and the delinquent
tax sale notice as published described the
land full quarter-secnon without any
mention of the acreage.
All the Justices eoncurring.
A true copy.
Attest: d. A. VALENTINE.
LSeaLl Clerk Of Supreme Court
No. II. go
The State of Kansas, ex rel Albert Faul-
coner. County Attorney, Appellant,
VS..
The Board of County Commissioners of
Cowley County, Kansas, w. NJ. Rencen-
berger as County Clerk and ]. W. Stan
ford as County Treasurer, Appeilees.
Appeal from Cowley County.
AFFIRMED
Syllabus. BY the Court. West, j.
fhe limit of LIP mills for current ex-
penSe fixed by section 5 of chapter PAS
laws of 1863 does not apply to road levy
Of 1 mill under section 80 of chapter PAS
laws of 1911, the maintenance of a road
designated county road under the latter
act not being a part of the current ex-
pense of the county within the meaning
of the previous limiting act.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
LSeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
LEGAL

the members which the court will enforce
If not immoral, or contrary to the public
policy or law of the land" Brown VS..
Stoerkel G. Mich. y L. r. A 49,
3. By the provision of the State Order
constitution the State Order is the SUI
preme tribunal within its jurisdiction and
without its sanction no subordinate order
can exist.
4. The State Order having, in effect. de-
cided that a subordinate order has ceased
to exist, the decision, not being contrary
to law public policy, is final.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. 1926.
W. S. Bear, Appellee,
We


J. T. Kenyon, Appellant.
appeal from Scott county.
AFFIRMED.
syllabus BY the Court West, J.
L In 1887 the owner of a vacant and I'M
occupied quarter-section of land mort
gagged 1t and shortly thereafter conveyed
10 grantor of the defendant. In 1891
the land was sold under foreclosure to a
: grantor of the plaintiff, neither the mort
the foreclosure. The plaintiff and his
grantors purchased in good faith for a
valuable consideration, ana paid all the
taxes after the foreclosure. The plaintiff
had portion of the land broken and a
crop was put in, portion of which he
was to receive but the crop failed. He
permitted another portion of the land to
be fenced and used for a pasture and
while the owner of the fence was still
using the pasture with consent of the
plaintiff the defendant went upon the land,
plowed and planted the broken portion
and ran few burrows around the quar-
ter-section. the object being to gain pos
session No payment or offer to pay any
part of the mortgage debt was made.
Held, that the PLAINTIFF could maintain
ejectment.
2 In an action in ejectment the plain
tiff, over objection, was permitted to file
a reply setting up q cause of action to
quiet title Held, that such amendment
was improperly permitted and substan-
tally changed the claim of plaintiff, but
the matters in controversy were fully
ntigated and the judgment rendered ig-
nOred such amended reply the defendant
was not substantially prejudiced thereby.
All the justices concurring.
y true copy.
Attest: d. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

eighteen years and until his death and
eight children We're born Of that mar
riage- When he died, appellant in par
ution proceeding. claimed that no divorce
had been granted, and no record or docu-
mentary proof of the divorce was intro
duced- Under the facts Of the case it is
held that ii will be presumed that the
first marriage was dissolved by divorce
and that when appellant claimed to in
herft land as the surviving widow of in
testate it deyolved on her to prove that
no divorce had been granted.
All the Justices concurring.
a true copy
Attest: D. a. VALENTINE
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. II, 279.
Amos F. Morey, Appellee,


The Chicago. Rock Island and Pacific
Railway Company, Appellant
Appeal from Sumner county.
AFFIRMED.
Syllabus. BY the Court Johnston, c. J.
l. A carrier is liable for a wrongful as
saGlt upon a passenger by a brakeman,
at least while such brakeman is acting
within the line of his employment.
u. .. Where a train reached a terminal
&tation at which train crews are changed
and the coach in which passengers were
riding was taken out of the train without
notice to passengers and placed on a sid
ing about four hundred feet away while
one of the passengers was in the dining
room eating his breakfast, and when the
passenger returned to the train and found
a new crew in charge of the train and the
which contained his baggage had been set
out and when he went to that car for his
baggage the brakeman VINO had been
with the train up to that point was pres
ent with uniform and assuming to be in
control of the car, and when chided for
not warning the passengers that the car
containing their baggage was to be cut
ger, held, that although it was the end of
the brakeman's run and that ordinarily
his duty ceases when the new crew takes
charge of the train, the testimony is Suf-
ficient to make question of fact whether
the brakeman was a servant OF the COM
pany and in the line of his employment
when the assault was made and is suffi-
finding the company liable for the in
Euries inflicted
I All of the Justices concurring-
A true copy.
Attest;
D. A. VALENTINE.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
First published In The Topeka Stat,
Journal December II. lg11l

RESOLVED. That the Mayor and Board
OF Commissioners OF the CITY OF Topeka.
Kansas, deem it necessary Tor the
pest interests OF said city that
SeL4Aeld avenue from the south line OF
sixth avenue 10 the south line OF Eighth
avenue be graded. curbed with combined
cNrD ana gutter and paved twenty-eight
90 Feet wide with vitrified paving blocks
on concrete base with asphalt filler.
w. q. TANDE. Commissioner.
-, Z. B. Burgc, city clerk OF the city Of
Topeka. Kansas, do hereby certify that
the above and foregoing IS true and
correct copy or the origin resolution
now on file in my office.
LSeaLl c. B. RURGE,
CITY Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. II, 259.
Louis H. Pohl, Appellant,


Catherine NJ. Fulton, Appellee.
Appeal from Brown county
AFFIRM MED.
Syllabus. By the Court Burch, J.
1. Where, without undue advantage be-
ing taken, the issue presented by the
pleadings are substantially enlarged at
the trial and as enlarged are fully tried
and duly submitted to the jury, it is not
prejudlcial error to permit the pleadings
to be amended after verdict to conform to
the proof
q The law presumes the acceptance of
a beneficial gift by one who, because of
his feebleness of mind, is incapable of ac-
cepting it.
5. The requirement of delivery is sat
fsfied by the donor, who retains possess
sion, constituting himself a trustee of the
gift for the benefit of the donee
4. The evidence considered and held
sufficient to show q completed gift.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

RESOLVED. That the Mayor and Board
of Commissioners of the CITY of Toneka
Kansas, deem it necessary for the
best interests of said city that
Horne street, from the south line of Will
low avenue to the north line of Eighth
avenue, be graded, curbed with combined
curb and gutter and paved thirty 800 feet
VIDE with Vltr1Iled paving blocks on con-
crete base with asphalt filler
w G. TANDY. Commissioner
I, G. B. Burge, city clerk of the City of
Topeka. Kansas do hereby certify that
the above and foregoing is a true and
correct cooy OF the original res, ..tinn
now on file in my office.
[SeaLl c. B. BURGE.
civ CsIArIr
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
First published in The Topeka state
Journal December 2 1911

THIRTY DAY NOICES OF APPLICA-
TION OF BUSINESS COLLEGES FOR
A PERMIT TO CANVASS IN THE
STATE OF KANSAS.
Topeka, Kansas, December ]. 1911.
Notice is hereby given that the Ma
TIONAB BUSINESS COLLEGE OF IN
DEPENDENCE, KANSAS, has made an
Plplcdhlon 70 me Aof a permit to canvass
in the State of Kansas for the purpose Of
seIllng tuluon In advance and contracting
or securing notes TOT tultlon from stu
oehts before thelI registration at the bust
ness college herein named.
If satisfactory proof is furnished that
the above named college is incompetent
to furnish such a course of instruction az
they advertise or that the moral sur
roundings of the institution are not good
or that the premises are kept in an IN
healthy condition. or that the agents of
said institution use Misrepresentation or
fraudulent methods in securing contracts
notes, or cash from prospective students
in such case permit will not be granted
to such business college.
e. T. FAIRCFIILD,
State Superintendent of Public Instruc-
ton.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

RESOLVED, That the Mayor and Board
OF commissioners of the city OF Topeka
Kansas deem 1t necessary for rne
pest interests OF said city that
Ihlrd street, from the west line of Tyler
street 70 the east line or Western avenue,
De graded. curbed with combined curb and
gutter ana paved thirty 800 feet wide with
vitrified paving blocks on concrete base
with asphalt filler.
w G. TANDY, Commissioner.
Il, Z. b Bu-ge, city clerk of the city of
Topeka. Kansas. do hereby certify that
the above and foregoing is a true and
ccTrect coPy q the original resolution
LSeall c. B. BURGE
CITY Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
D. A. VALENTINE.
Clerk Supreme Court.
First published in The Topeka State
Journal December 6, 1911

RESOLVED, That the Mayor and Board
Of commissioners of the city Oh Topeka
Kansas, deem 1t necessary for the
best interests of said city that
clay street, from the south intersection
of Sixteenth street to the north intersec-
ton of Seventeenth street, be graded,
curbed with combined curb and gutter
and paved twenty six (26) feet wide with
yttTlfied paving blocks on concrete foun-
dalton with asphalt filler.
w. G. TANDY. Commissioner
1, c. B. Burge. city clerk of the City Of
topeka. Kansas. do hereby certify that
the above and foregoing is a true and
correct copy OF the original 'cs.In-ion
now on file in my office.
lSealI G. B. BURGE
City Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
LEGAL.

g. And where a hedge has been planted
and has grown the division line until
II contains trees, sustained by the soil of
poth farms, so large as to be suitable for
telephone poles and fence posts, the view
ers are not warranted in including the
value OF such trees in the award made
against the delinquent owner.
All the justices concurring.
A true copy.
Attest. d. A VALENTINE
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
LEGAL.

crete base with asphalt filler
w. g. TANDY. Commissioners.
1, G. B. Burse, city clerk of the Cry OF
Topeka. Kansas, do hereby certify that
the above and foregoing IS true and
correct copy o. the orr ina resolution
now on file in my office.
[SeaLl c. b. BURGE
City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. II, 1924.
John Fear, Appellant.

No. II, 81.
John Fear, Appellant,
VS..
The First National Bank of Clay Center,
Appellee.
Appeal from Clay county.
REVERSED.
Syllabus. BY the Court Porter,
1t is reversible error to instruct the jury
to determine disputed question of fact
which Is only incidentally involved in the
issues, and to base the verdict upon their
finding as to such collateral issue
All the Justices concurring.
A true copy.
Attest. d. A. VALENTINE,
TSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. 1888.
John v. Abrahams, Appellant,

Jonn v. ADranaInSs Appellant,
Stanley Medlicott. treasurer of Shawnee
County, Kansas, and The Board of
County Commissioners of Shawnee
County, Kansas, Appellees.
Appeal from Shawnee county.
AFFIRMED.
Syllabus. By the Court. Benson, J.
Stock issued by a building and loan as
ISOLATION was divided into classes. One
class consisted of prepaid stock upon
which interest is payable out of the earn
lngs Of the association at a rate not ex-
ceeding six per cent per annum; the hold
ers have the right to withdraw the
amount paid in upon conditions stated in
the bylaws, and the association has the
right to retire the stock upon notice. The
holders are members of the association
eligible to vote and hold office therein as
stockholders. 1t is held that the stock is
not a credit within the meaning of the
taxing laws and that a holder thereof
is not entitled to a deduction of the
amount of debts owing by him from the
value of such stock in the assessment
thereof for taxation.
All the justices concurring.
A true copy.
Attest D. A. VALENTINE,
LSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
d. A. VALENTINE,
Clerk Supreme Court.
No. Is, 1874.
Amelia New Appellant.

No. 16 834.
Amelia New, Appellant,
VS..
J. A. Smith, Appellee.
Appeal from Greenwood county.
REVERSED
SYLLABUS By the Court. Smith J.
Il An action to recover the possession
Of a tract of land, the real gravamen of
which is to set aside a recorded deed,
which purports to have been executed by
the plaintiff, for the reason that such
deed was fraudulently obtained by the
grantee, is in form an action IN ejectment
but in substance Is an action for relief on
the ground OF fraud.
q The evidence requisite to sustain
such action is the same as would be re-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
LEGAL.

connective. and the engineer in charge of
tne locomotive which it is alleged caused
t-.s Ire Tor which damages were sought.
49, q competent and skillful engineer are
CONSIDERED, ana without deciding upon the
conlpetehcy OF the testimony under the
issues presented 1t is held that it does not
e appeaF thaL the rulings If erroneous, in
J1lIl4usly aHected the substantial rights
~ ~ tne party obJecung thereto, and that
f ens Judgment can not be reversed there
~, 4. The provisions of section IA of the
elsu code relating to errors and defects
that do not affect substantial rights and
section 5Sl, relating 10 technical errors
and irregularities are corlpared and an
piled.
Al the Justices concurring.
A true copy
Attest: ID A vAT.E.N-rrTNrE
LoeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

RESOLVED, That the Mayor and Board
OF Commissioners of the city OF Topeka.
Kansas, deem Il necessary for the
best interests OF said city that
Chandler street, from the south line OF
Fourth street to the north line OF sixth
avenue, be graded, curbed with combined
curb and gutter and paved tWenty-six (26)
feet wide with vitrified paving blocks on
concrete foundation.
w G. TANDY. Commissioner.
L, z. 3. Burge, city clerk OF the City OF
the above and foregoing Is q true and
correct copy or the original resosutioa
now on file in my office.
LSeall {. B. BURGE
CITY Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
First published in The Topeka state
journal December u. lgll.l

RESOLVED. That the mayor and board
OF commissioners OF the city of Topeka,
Kansas. deem it necessary for the
best interests of said city that
East Tenth avenue, from the east end OF
the Shunganunga creek Bridge to connect
with the present pavement at Lawrence
street. be graded, curbed with combined
curb and gutter and paved twenty-eigh
feet wide with vitrified paving blocks.
asphalt Hller on concrete foundation.
- W. 9. TANDY Commissioner.
/, G. 3. Burge, city clerk OF the City OF
Topeka, Kansas do hereby certify that the
above and foregoing is a true and correct
copy Of the original resolution now on Tile
in my office
GSeaLJ c. b. BURGE
City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

No. 1880.
The Wapies-Platter Grocer Co., corpor-
alton. Appellant.
Robert Kinkaid, Appellee.
Appeal from Shawnee county.
REVERSED.
Syllabus. By the Court. Johnston, c. J.
The defendant, who had been a con-
tractor. and who had purchased supplies
contract had money owing to him on the
work done and he owed several parties
for supplies by whom a number of gar
nishment proceedings had been begun.
Having removed to a distant place he ex-
ecuted a power of attorney authorizing
his agents to settle negotiate and sign
and release any and all Indebtedness due
me or due by me. and to nego-
tate and settle with f@( certain parties,
naming them), adding that he gave his
attorneys full power to do everything
whatsoever requisite and necessary to be
done in the premises as fully as 1 could If
personally present" In the settlement
ed for work done, being insufficient
to satisfy all claims against him, was ap-
portioned among his creditors and notes
were given by the attorneys for the IN
paid Indebtedness, held, under the cir
cumstances of the case, that the attor-
nevs-ir-fact had authority to execute the
notes given in the settlement.
All the Justices concurrfng.
Attest. D. A. VALENTINE,
fSealJ Clerk Supreme Court.
No. 1929
VIM. Mclaughlin, ct al, AppeIlees,
VS.
John W. Wall. y. J. Randall, ct al,
Appellants.
Appeal from Neosho county.
REVERSED.
SvlIa bus Ely the Court. Smith J.
l. The Anti-Horse Thief Association of
Kansas is a voluntary, benevolent asso-
3. sThe articles OF agreement of a be-
nevolent association, whether called a
constitution, charter, bylaws or any
other name. constitute contract between
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
No. 1922.
No. II, S27.
Mrs. A. K. Ross and Carrie Tessier,
Appellees.

AppeIleeS,
VS..
German Alliance Insurance Company of
New York, Appellant.
Appeal from Crawford county.
AFFIRMED.
Syllabus. BY the Court. Benson, r.
I. In an action upoh an insurance
policy, where the issue was upon the val
idity of an award Of arbitrator chosen
under the terms of the policy, the fact
that the amount of the loss as found by
the court upon the trial greatly exeeede ed
the amount found by the arbitrators,
while not deemed sufficient proof of
prejudice on the part of an arbitrator Is
circumstance to be considered together
with his conduct during the proceedings
and all the attendant circumstances in
determining whether the award was fairly
made.
2. Upon an examination of the evidence
tending to show misconduct on the part
of the arbitrator appointed by the defend
business for this and other insurance
companies, the great difference between
the amount awarded and the actual loss
as found by the court upon the trial, the
refusal to examine part of the goods re-
naming after the fire. and the attendant
circumstances, it is held that finding of
the district court upon which the award
was held invalid can not be set aside.
Burch, J., Mason, j. Smith, j. and
West, J., concurring-
Porter, J. and Johnston G. J., dissent
ing.
A true copy.
Attest D. 4. VALENTINE,
TSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12
C. b. BURGE
City Clerk.
First published in The Topeka Stat
journal December Y. l9lI.l

journal December L., 19l1.l
RESOLVED, That the mayor and board
of commissioners Of the city OF Topeka,
Kansas, deem II necessary for tho
best interests of said city that
Lincoln street, from the south line OF
Euclid avenue TO the north line Of Hampton
street. be graded, curbed with combined
curb and gutter and paved thirty (3JJ feet
wide with vitrified paving blocks on con-
crete base with asphalt filler.
W. q. TANDY Commissioner.
l. c. &. Burge, city clerk OF the city OF
Topeka, Kansas, do hereby certify that the
above and foregoing Is q true and correct
COPY OF the original resolution now on lilo
in my office.
[Seall c. 3. BURGE.
City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-12-12

RESOLVED, That the mayor and board
of commissioners Of the city OF Topeka
Kansas, deem 1t necessary FOR tho
best interests of said city that
Arch street, from the south line OF Tenth
avenue to the south line OF Eleventh
street be graded, curbed with combined
curb and gutter and paved thirty (3O) feet
wide with vitrified paving blocks on con-
crete base with asphalt filler.
W. q. TANDY, Commissioner.
I. c. 3. Burge, city clerk OF the City OF
Topeka, Kansas, do hereby certify that the
above and FOREGOING is "a true and correct
copy of the original resolution now on file
rSes11 c. b. BURGE
CITY Clerk.