davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. IL. 696.
:. A. Nicholson, Appellee,

No. L, 696.
=. A Nicholson, Appellee,
VS..
W Al. Ferguson, Appellant.
Appeal from Mcpherson County
REVERSED.
Syllabus B. the Court. Mason. J.
l. Under the provisions of the statute
that entries in books intended as records
of payments and similar matters, made in
TIE regular course of business at or near
the time of the transaction, shall be adj
MISSILE in evidence on proof that they
were so made, the fact that a corporation
made certain payments may be shown By
its books, although it is not a party to
the action.
3 Where one who has been the general
manager of a corporation sells his stock
under agreement that note given in
part payment therefor shall be subject TO
a proportionate deduction account of
any just claims existing against the cor
action upon the note proof by the de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1881.
Bertha Epstein, Appellant,

The City of Caney. Kansas, Appellee.
Appeal from Montgomery County.
REVERSED.
Syllabus. By the Court. Burch. j.
/ Under Section 1892 General Statutes
of 1909, providing that appeals may be
taken from the decision of householders
appointed by city to appraise damages
occasioned by the opening of an alley, in
the same manner and within the same
time as from judgments of a justice of the
peace the householders may take, APP
prove and certify an appeal bond rendered
within due time after the filing of their
report.
2 The validity of such bond is not
affected because Immediately upon the
filing of their report, which was accepted
by the city council, the householders were
''discharged'' or because the bond was not
approved by or filed with the city clerk,
or because the householderS did not OBJ
serve the formality of assembling to-
gether as an organizing body to approve
the bond.
g. query, whether such bond would
not also be good if taken by the city clerk.
All the Justices concurring.
A true copy. -
Attest: d. A. NALENIlNEs
IEeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
Notes and Personals.


The Ladies' Aid of the North Topeka
Baptist church will meet at the church
at 2 o'clock tomorrow afternoon. All
members are asked to be present.
Fred Winters, who lives near Guthrie,
Ok, is visiting his sister, Mrs. Enili
Heber. on North Monroe street.
Paul Basye, employed by the Mutual
Life Insurance company, is enjoying i
vacation.
v. w. Peel is in Kansas City on
business today.
Mrs. A Shockley, of 1154 North Kan
sas avenue, gave a party for her
daughter Ethers tenth birthday Mon
day afternoon at her home. Those
present were: Maudie Thompson. Sudie
Maze, Lucille Maze. Inez and Irene No
Quilken, Helen, Ruth and Gertrude
Davis. Ida Ogee, Mary Rigby, Louisa
Holiday, Izadell Waycoff, Lucille
Moore, Margaret Davis, Verna Nal
gamdt, Harry Nalgamdt. Clyde Maze,
Thompson, Harold McQuilken, Ethel
and Mary Shockley. The afternoon was
spent in playing games.
Mr.. and Mrs. S. c. Wyatt, of 1885
North Taylor street, will leave the first
of next week for Dodge City where
they will make their future home.
Jack Lee, II years old. who lives at
1921 North Taylor street, was taken
to st. Francis hospital by DR.. o. p
Davis this morning. He is suffering
from appendicitis
Ernest Schweering, of Kansas City
is visiting his sister, Mrs. c. Snapp'
of 1914 North Tyler street.
Marshalls band will give its regu-
lar public concert at Garfield park
Friday night
A. NJ. Petro, druggist.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1900.

No. 1900.
Margaret Williams, Appellee
Peter Benson, Appellant.
Appeal from Cloud County.
AFFIRMED.
Syllabus. BY the Court. Porter I
1. Foot-trave1lers have the right to as
sumo that others who may be lawfully
using public street or highway with
them will exercise a proper degree of care,
and when crossing public street are not
Obliged to be constantly on the lookout to
avoid injury from others.
3 The duty of a driver of an automo-
bile to keep lookoutsto- avoid injury to
pedestrians and others using the public
streets is the same as that which the law
imposes upon the driver of "a team, ex-
cept that the ordinary speed of such ma
chimes increases the danger of injury to
others in the street and calls for more
watchfulness on the part of the driver.
3. The evidence and findings in this
case are held sufficient to justify the al
lowance of punitive damages.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11

No. 17,719.
F. Fl. Evans and H. ]. Evans, Partners
as Evans Brothers, Apellees,
r 6 MoseIy and E. S. Downs, appellants.
Appeal from Finney County
AFFIRMED.
Syllabus BY the Court Mason. j:
Were upon an appeal from judgment
for the plaintiff in an action for damages
for the refusal to accept and pay for cat
tie contracted to be purchased, reversal
is had solely by reason of the rejection OF
evidence upon the question of their mar
ket value. and new trial is ordered upon
the amount of damages only. the questic,
whether the cattle were of the quality de-
scribed in the contract is not to be re-
garded as an issue at the second trial.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
LEGAL

principal does not hold the title to the
land.
3. Where an estate of a deceased per-
son Is in process OF settlement and there
Is no claim filed against the estate nor
any debts left by the deceased there is no
estate descended, to apply to the probate
court for authority to sell 1t. Such au-
thority is only required where the per-
sonal estate is insufficient to meet the in
debtedness of the deceased.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 17,T05.
c. B. Clements, Appellee,

No. 17,706.
c. B. Clements, Appellee,
VS..
The Inez Oil Company, Appellant
Appeal from Chautauqua County,
AFFIRMED.
Syllabus. BY the Court. Burch J.
The statute limits the courts power of
reversal to cases in which prejudice to
substantial rights is made to appear Pre-
JUDGE is not presumed and a Judgment
based upon uncontradicted evidence com
petent when admitted but which after
wards turns out to be of secondary quail
ity, will not be reversed unless it can be
said from the record that the result
would probably be different If the pri-
mary evidence were produced.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11

No. IL. 6S9
Carl Spellnnan, Appellee
VS..
metropolitan Street Railway Company
Appellant.
No. 1900.
Aaron Smith, Appellee,
VS..
Metropolitan Street, Railway Company,
Appellant
Appeals from Wyandotte County, Court
of Common Pleas.
AFFIRMED 70
syllabus BY the Court -. West J.
Conflicting and competent evidence
anording sufficient basis for a verdict will
not be reviewed by this court, and a YER
dict thus supported must stand
2. Errors not manifest and apparent
will not be considered unless specifically
pointed out, the duty to indicate such err
rors and the reasons therefor resting
upon counsel and not upon the court.
3. Firemen in city making run with
a heavy hose cart drawn by large team
are not required to use the same care to
avoid collision with a street car that is re-
quired of the driver of an ordinary pri-
vate vehicle.
All the justices concurring.
A true copy.
Attest:
ISeall D. A. VALENTINE,
Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
HUTCHINSON CLUB IN.
Tom Morris Memorial Trophy Attracts
Many Golfers.

Chicago, June 11.-Twenty seven
entries for the Tom Morris memorial
trophy competition to be played June
Is have beer received by the Western
Golf association. Among them are Ell
Paso Country club. FL Paso, Texas;
Hutchison Country club, Hutchinson,
Kansas: Victoria club, Riverside. Cal.
Entries close June 10. The compe-
tition is open to teams of eight from
any club a member of the Western
Golf association, each team to play Il
holes over its home course against par
of the course.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 17,711.
c. r. Ellington, Appellant,

No. II I'll.
c. R. Ellington, Appellant
VS..
A. D. Mcleod, ct al, Appellees.
Appeal from Washington County.
REVERSED,
Syllabus. By the Court Benson, J.
promissory note altered by the payee
by increasing the rate of interest without
fraudulent intent, to make it conform to
the contract in pursuance of which it wss
given, is avoided, but a mortgage given
to secure it is not vitiated by the altera-
ton of the note and may be enforced for
the original consideration If otherwise
valid.
All the Justices concurrIng.
A true copy.
Attest:
ISeal1 D. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1852.
John T. O'Keefe, Appellant,


The Kansas City Western Railway COM
pany, Appellee.
Appeal from Leavenworth County.
REVERSED.
Syllabus. BY the Court. Benson, j.
/. Where personal injuries result in
part from the negligence of the defendant,
and in part from plaintiffs voluntary in
toxication, but such intoxicadon is not a
contributory cause of the injury the plain
tiff may recover for the injuries that he
would have suffered If sober.
2 In such a situation the jury should
from all the evidence determine what COM
pensation ought to be given for pain.
suffering. disability, and losses, they find
to be fairly chargeable to the defendant s
negligence, but not including (under the
petition in this easel any added injuries
or losses resulting from intoxication.
8. An instruction that before the plain
tiff can recover in such a case he must
show what the amount should be, and
that if the jury can not determine how
much of any damage sustained is due to
the defendant and how much to the
plaintiff, the plaintiff can not re-
cover is misleading and erroneous
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal-l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 17.706.
n. E. Nuhfer, Appellant,

No. 17.706.
N. E. Nuhfer, Appellant,
]. H. Edwards, et al, o. H. Edwards,
Appellee.)
Appeal from Chautauqua County
DISMISSED.
Syllabus BY the Court Mason J.
Where the district court sustains a de-
murrer to the petition filed by a defend
ant against whom the only relief sought
Is a judgment for less than 800, no appeal
lies from the ruling. although the plaintiff
is seeking judgments against other de-
PENDANTS for more than that amount.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
[Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
MONEY

MORE THAN 81, 600 10000 OF PER
CENT MONEY TO LOAN ON FARMS
IN EASTERN PART OF KANSAS.
AN UNLIMITED AMOUNT OF LOW
RATE MONEY to loan for building
homes. on homes already built and on
business property in Topeka
II YOU wish a new loan or have ma
turing loan or wish to change your loan
turing loan or wish to change your loan,
either farm or city, write or call at our
office first floor New England Bldg.
RETZER REALTY & LOAN CO.,
Financial Correspondents,
THE UNITED STATES MORTGAGE &
TRUST COMPANY. NEW YORK.
CAPITAL AND SURPLUS 5000, 10000.
ASSETS 374, 600, 10000.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 17,6SS.
J. w. Sturgeon, Appellee,
George H. Culver. Appellant.


George H. Culver. Appellant
Appeal from Gray County.
AFFIRMED.
Syllabus BY the Court. Johnston. c. J..
1. In a petition plaintiff set forth GER
tain letters which, it was claimed, consti-
tuted a contract of agency. The answer
was a denial and an averment that the
defendant was not authorized to enter
into the contract. The reply met the lat
ter defense and pleaded other correspond
ence tending to support the contract
pleaded in the petition. AS the new facts
in the reply did not contradict those set
forth in the petition it can not be deemed
a departure and the admission in evidence
of the additional letters was not error.
2. 1t is no defense to an action brought
by an agent TO recover a commission for
Negotiating a sale Of real estate that the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. II, 6S4.
Laura L. Forney, Appellee,

,b64-
Laura L. Forney, Appellee,
VS..
The Fidelity Mutual Life Insurance COM
pany, Appellant.
Appeal from Sedgwick County.
First Division.
AFFIRMED
Syllabus BY the Court West 7
l. An insurance contract provided that
upon default in payment of premium or
premium obligation the policy should ipso
facto become of no effect, and that a re-
yivaI could be had by application, ap-
prevail and payment of arrears-the in
sured being in good health The insured
gave his note for one years premium ara
at its maturity defaulted. Shortly there
after he made a partial payment and ap-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. Il, 237.
yucca Micheletta Obertino, Appellant,

yucca Micheletta Obertino, Appellant,
VS..
The Fidelity Coal Mining Company and
w. H. Barrett, Appellees.
Appeal from Cherokee County.
REVERSED.
Syllabus. BY the Court. Johnston, c. j.
l. cost bond for a fixed amount IN
which, after naming the parties pla1ntih
and defendant, the oblisors undertake
to pay the costs of the action upon sub
stantiaIly the conditions prescrib ed by the
code is not invalid because an obhgee Is
not named in the instrument.
q Where a clerk of the district court
accepts and files such a bond without OBJ
lection and issues a summons 1t VIII De
deemed to be approved in the absence OF
any evidence of the disapproval OF that
officer. ,-.
g. Where a party attempts to comply
with the law in giving a cost bond and
it is for any reason defective the cause
should not be dismissed until the party
is given an opportunity to give proper
bond or sufficient security of the KIND
required by the statute
All the justices concurring.
A true COPY.
Attest: d. A NAl1EN LIN -.
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1862.
No. IL. 662.
F. B. Vandegrift & Company, Appellee,

NO 1852.
F. B. Nandegrift & Company, Appellee,
VS..
Ganyon Zinc Company ct al, Appellants.
Appeal from Allen County.
AFFIRMED.
Syllabus. BY the Court. Burch, J.
Under the facts stated in the opinion a
contract by a firm of custom house brok-
ers with a smelling company to procure,
at their own expense, for a compensation
or fifty per cent. of the amount collected
the refunding of excess duties exacted by
revenue officers on importation OF lead
and zinc ore, is held to be neither cham
pertous nor unconscionable; and 1T is
further held that the brokers are entitled
in equity to be paid their portion OF a
sum refunded by the government through
their efforts under the contract, out OF a
treasury warrant for such sum issued to
the smelling company and delivered to its
receiver, although, under circumstances,
the ores were in fact owned and the duties
paid by another corporation.
An the Justices concurrlnS-
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11

No. 1910.
The State of Kansas, Appellee,
J. E. Miller, APPELLANT.
Appeal from Seward County.
AFFIRMED.
Syllabus. By the Court. Porter. J..
l. By giving a recognizance for his ap
pearance at court without objection to the
sufficiency of the warrant the defendant
valves the defect in the notification of
the complaint and the irregularity in is
suing the warrant upon a complaint veri-
fled only upon information and belief.
2 The effect of such waiver is not
overcome by statement in the motion to
quash the warrant to the effect that he
gave the bond to avoid being confined in a
Jail which the judge of the district court
and the county health officer had con-
demned as unsanitary and unfit for the
confinement of prisoners, and that the
Judge of the district court was absent
from the county at the time of the arrest
have a motion to quash the warrant
passed upon.
8. The information charged defendant
with selling adulterated milk to one H. G.
Staples. The evidence showed that Staples
purchased the milk for a partnership
composed of H. G. Staples and another
person. Held. no variance.
4. The offense for which defendant was
convicted being a misdemeanor there was
no error in receiving the verdict during
his absence from the courtroom.
All the Justices concurr!2g.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1854.
H. w. Avery, Appellant,
We

No. II, 534.
H. w. Avery, Appellant,
VS..
Milton Moore, Appellee.
Appeal from Wyandotte County.
District Court, Second Division.
Reversed and Judgment Ordered.
syllabus BY the Court. Smith. J.
/. The contract sued on and the stipula-
ton filed by the parties on the trial en-
titled the plaintiff in the action to judg-
ment and no defense thereto was shown.
3 The stipulation furnishes the bases,
by mere computation, of determining the
amount of such judgment.
All of the Justices concurring.
A true copy.
Attest:
d. A. VALENTINE,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
D. A. VALENTINE,
Clerk Supreme Court.

No. H. S63.
The State of Kansas eX rel. John S.
Dawson, Acknowledgement, Plaintiff,
VS..
F. J. Lander, B. Kerr, J. F. Richardson
and ]. o. Ellis, Councilmen of the City
of Hunnewell, Kansas, Defendants.
ORIGINAL PROCEEDING OF CUSTER.
Cause continued for further orders and
final disposition.
Syllabus BY the Court. West J.
l. The law authorizes the mayor and
council of a city of the third class to levy
and certify tax, but does not require
them to do in case there be no neces-
sity therefor.
p The statute requires the mayor, by
and with consent of the council, to ap
point certain officers including a city
marshal and authorizes the appointment
of others if deemed necessary.
Johnston c. J., Burch, J., Mason, J.,
Smith, J., and Benson, j., concurring.
Porter, J., dissenting.
A true copy.
Attest D. A. VALENTINE,
TSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 17,717.
G. A. Johnson, Appellee,

No. 17,T17-
G. A. Johnson, Appellee,
VS..
Kansas City Home Telephone Company.
Appellant.
Appeal from Wyandottee County, District
Court.
AFFIRMED.
Syllabus By the Court Burch J.
/. A traveller on a public street at a
busy crossing is not necessarily negligent
as a matter of law because he fails to
look in a direction from which harm
comes when he has time and opportunity
to do So He is only held to the exercise
of reasonable prudence under all the cir
cumstances and this may frequently be a
question for the jury.
2 The failure of pedestrian on pub
lie street to take some particular precau-
ton for his safety. as, for example. to
look across the end of standing street
car for vehicles approaching from the
other side of the car, before passing be-
yond its fender, does not constitute cor
tributory negligence unless it contributed
to his injury.
ion it is held that findings of the jury
that the plaintiff, who was hurrying to
catch a street car, was in the exercise of
due care and could not have avoided a
collision with a motorcycle although he
could have seen 1T coming IL he had
looked are sustained by the law and the
evidence.
All the Justices concurring.
A true copy
Attest: D. a. VALENTINE,
TSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1T.716.
John c. Hayden, Appellee.

No. 1T.716.
John c. Hayden, Appellee.
The Atchison, Topeka and Santa Fe Rail-
way Company, Appellant.
Appeal from Wyandotte County.
REVERSED.
Syllabus BY the Court. Johnston. r., J.
A railway company owes no duty to a
trespasser, who sits down on one of its
tracks, until its employees learn of his
presence there, nor is it required to pre-
vide appliances and men for the benefit
of trespassers or to take precautions in
advance for the care and protection OF
those who may thereafter be innocentIy
injured while trespassing on its tracks.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11
No. 1853.
Iva c. Nesbit, Appellee,

No. Il, $50.
Iva c. Nesbit, Appellee,
vs..
The City of Topeka. Appellant.
Appeal from Shawnee County.
End Division.
AFFIRMED.
Syllabus. By the Court. Benson, J.
A person injured by the negligence of a
city failed to give notice as required by
the act governing cities of the first class.
Gen. Stat. 1909, sec. 121S) He died from
such injuries after the time limited for
such notice had expired. His widow gave
a notice within four months after his
death, and then commenced an action ur-
der the statute giving right of action fur
damages for death caused by wrongful
act 1t is held that the action may be
maintained, Notwithstanding the failure
to give the preliminary notice within four
months after the injury.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11

No IL, 495.
H .. Meeke, ct al, Appellees,
VS..
Jennie Deal. Adm'x, etc. Appel
liant
Appeal from Ffnney County
REVERSED,
syllabus. By the Court Porter J.
The defendant offered in evidence
the original petition containing state
mentS upon material issues at var
lance with those of the amended petition
upon which the cause was tried, The
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-06-11

No. 17.715.
-J.sW. Steele, Appellee,
VS..
st. Louis & San Francisco Railroad Com
pany, Appellant.
Appeal from, Wyandotte County, Court OF
Common Pleas.
so AFFIRMED.
Syllabus BY the Court. West, J.
/. When boiler makers helper is by
the employer directed to go inside an en-
CINE tank to assist in removing r1vets.
and the workman he is assisting selects
a sledge and chisel to work with, the
helper. is not required to examine such
tools in advance to ascertain that they
are not defective, but may assume that
the equipment will be reasonably safe:
2 When the evidence supports a find
ing of negligence in furnishing defective
tool and does not conclusively show that
the injured workman knew or ought 10
have known of such defect and its PROB
able consequences, a verdict against the
employer, approved by the trial court,
will not be disturbed
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
TSeal.l Clerk Supreme Court.