davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 17440
Gertrude l. Genree, Appellee,


Gertrude L Genree, Appellee,
Metropolitan Street Railway Company. ct
al, Appellants.
Appeal from Wyandotte County District
Court.
AFFIRMED
Syllabus BY the Court Burch. J.
l. A city ordinance granted to a street
railway company the right to construct,
maintain and operate its railway over
Vladuct forming part of a street in
the city One of the conditions was that
the railway company should repair and
public travel all parts of the viaduct.
The ordinance was accepted and the rail-
way was constructed and operated. A
sidewalk forming a part or the structure,
but not the paft-used by the railway
company, was suffered to become out of
repair and unsafe for use in consequence
Of which the plaintiff, while travelling
on the sidewalk, was injured. Held, the
plaintiff may recover directly from the
railway company the damages resulting
from the injury.
2. The ordinance further provides that
the railway company shall respond to
the city and save it harmless from dam
age resulting from acts and negligence
vision of the ordinance merely secures
to the city the right to be reimbursed in
the event that its own liability, which
under the law still exists, shall be en-
forced. 1t does not confine the railway
company's liability to the city alone.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[SeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
D. A. VALENTINE,
Clerk Supreme Court.

No. 1884.
Louis Terrill a Minor by Leuvina Ter
rill. His Next Friend, Appellee,
VS..
The Armour Packing Company, Appellant
Appeal from Wyandotte County
Court of Common Pleas.
AFFIRMED.
Syllabus. BY the Court. Burch. j.
The evidence in this case, and the rea-
sonabJe differences derivab1e therefrom
are sufficient to sustain a verdict for dam
ages resulting from personal injuries
caused by defects in the clutch and latch
of a body press in the defendants tin
shop. which defects were negligently suf-
fered to exist long enough that the de-
PENDANT should have been aware of them
Johnston, G. J., Mason, Smith, Porter,
Benson, west, ]. J., concurring.
Burch, j., dissenting.
Attest: D. A VALENTINE.
TSeall = Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 1920.
L. E. McGregor, Appellant,
80 1742n

l.. E. McGf6gOr, Appellant
VS..
S. W. Ireland, as County Clerk, ct al,
Appellees.
Appeal from Barber County
REVERSED.
Syllabus By the Court. Porter, ].
Under a contract for the sale of real
estate the purchaser paid substantial
part of the price and agreed to pay the
balance in five years with annual interest
and was Immediately given possession A
deed was executed conveying the title to
him AMI placed in escrow to be delivered
upon payment of the balance. The pur-
chaser was 20 have the right at any time
to elect not tc complete the purchase, in
which event he was to forfeit all pay
rnents made and surrender possession,
hut was not to be liable FOR any further
payments. Held, that the contract is tax
able as property of the vendor though not
necessarily to be valued at the amount
of the I VI chase price remaining unpaid.
Johnston, c. j., Burch, j., Mason, j.,
Benson, IT, West, j., concurring
Smith, j., dissenting.
A true copy.
Attest: D. A. VALENTINE,
ISeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
LEGAL
wards OF such overshipments.

wards of such overshipments.
2 In such case on cancellation OF the
contract and refusal to ship if there be
no market at the place of delivery the
buyer may purchase in the nearest mar
het and the measure of his damages is
the difference between the price there
and the contract price.
g. The court instructed that if the pur-
chaser failed to make payments as pro
Vlded IN the contract, the seller had a
right to cancel unless such failure had
been waived. and that if the jury should
find from the evidence that anything said
or done undeF the contract induced
plaintiff (the purchaser) to believe that
this condition had been waived or that
strict compliance would not be insisted
upon the defendant would be estOped
from afterwards claiming for nOnper-
Torrance. Held, not subject to the COM
plant that the court was thereby leaving
It to the jury to determine question Of
4. It is within the discretion OF the
trial eoti-t to refuse or withdraw special
questions calling for evfdential reasons
for particular findings.
.. In an action for breach Of a contract
containing reciprocal obligations, the fail
ure to allege performance on plaintiff
part should be called to the court 8 at
tention by demurrer rather than by OBJ
lection to evidences and when nonper-
Torrance by the plaintiff is alleged in the
answer and proof of performance fol-
lows, held that the lack of such aliega-
ton in the petition becomes tmmaterial.
s. The contract required payments to
be made within 30 days from date OF IN
voice, so discount to be allowed on re-
mittance within that time. A continued
course of dealing and certain correspond
ence showed repeated acceptance of de-
layed payments and an intention to con-
tinue the shipments the buyer being adj
vised that in the future the go discoun'
could not be allowed on payments made
after the 30 days Held, that proof OF
these facts is sufficient to sustain a
finding that past failures to remit
promptly were thereby waived, and the
defendant could not legally cancel the
contract on account of such failures.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
LSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
D. A. VALENTINE,
Clerk Supreme Court
10. 1913.
No. 1913.
In Re John G. Cooper, Application for
Writ of Habeas Corpus.

In Re John G. Cooper, Application for
Writ of Habeas Corpus.
PETITIONER REMANDED-
Syllabus BY. the Court Burch, J.
Under Section 6263 General Statutes
1909, providing that when a divorce is
refused because the parties are in equal
wrong the court may, for good cause
shown, make such order as may be prop
cation of the children, no separate hear
ing is necessary and no specific kind OF
evidence is required to determine whether
or not such an order shall be made.
9 At the conclusion of the divorce pro-
ceedingS the judicial question arises upon
them whether or not good cause has
been shown for the entry of an order for
the future protection of offspring. Which
ever way the decision may fall, and
whether or not it be sound or unSOund,
the court has jurisdiction to make it.
g. Should an order of the character de-
scribed be made it may be enforced by
proceedings for contempt ana IS not Wi
nerable to collateral attack IN the con-
tempt proceeding on the ground OF want
of jurisdiction
T. At the conclusion of the trial of
divorce action in which both parties were
denied relief because in equal wrong an
convey to a. trustee property for the main
tenance and education of his infant child,
the custody of which was given TO It's
mother The trustee was required TO give
bond for the faithful performance of his
duties The bond was not given until
after citation for contempt had issued
to enforce the order. After the bond was
given and approved opportunity was Of
NOT inproved and the father was COM
mitted for contempt. Held, he may not
be discharged by means of the writ of
habeas corpus
All of the Justices concurr1ng.
A true copy
Attest: .....-.-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 174SS.
No HOO
H. j. Wright, Appellant,


-. Wright, Appellant,
VS.,
James Stage and J. IT. Jones, Admins
traitors Of the estate of Luke Stage, de.
ceased, Appellees-
Appeal from Morris County.
AFFIRMED.
SYLLABUS BY the Court Johnston = J.
/ An executor or administrator has no
authority to settle and pay a claim Of
more than fifty dollars against the estate
Of tn ; deceased without an allowance by
the probate court, nor is he authorized to
bind the estate by an offer to confess
judgment for such claim, adrnis-
sion of liability therein, and if he does
make such an offer or admission it Is
not competent evidence against the estate
in an action upon the claim.
2 A request for a Peremptory instruo-
ton to make a particular finding is prop
erlv refused where there is substantial
testimony inconsistent with the theory of
the request.
& The refusal to submit a special ques-
ton. which in itself was proper, is held
not TO be prejudicial error in view Of
other questions submitted and the gem
efal finding by the jury.
All the Justices concurring.
true copy sa.-.--.s.-
Attest: u a ALLEN 11f< E9s.
TEeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
| EGAl

proper proof of these facts should re-
cover damages resulting from the failure
which were caused by the fact that the
pasture contained materially less land
IMAM had been represented, and which
losses could not have been avoided by a
reasonably diligent effort to procure other
pasturage.
All the Justices eoncurring.
A true copy.
Attest: d A VALENTINE
LSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
EGAL.
No. 17462.

No. 1882.
Kate NJ. Osman, Appellee,
VS..
John I. Osman, Appellant.
Appeal from Graham County.
AFFIRMED.
Syllabus By the Court. Benson. ].
Under the statutes OF this state real
estate of the husband may be set apart
to the wife in actions for aIimony alone,
as we'll as in actions for divorce and ali
mony.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE
LSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 1854
Arthur Cappers Appellee,

No. 1854
Arthur Cappers Appellee,
SvS.
Tie Manufacturers Paper Company, Ar
peIlant-
Appeal from Shawnee County.
Cst Divisfon)
AFFIRMED.
Svitatt5s BY the Court. west. ].
T. Under a contract to furnish for the
publication of a newspaper 10 tons of
naner during one year with a lee way Of
SCI over or iinaer in quantity per year. the
Shipments to be al the rate of 60 tons O.
month more than the last amount
was shipped for several months but
the purchaser, though calling atten-
ton to the matter, accepted the paper.
Held, that such acceptance amounted to
a waiver Of the right to complain after
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
D. A. VALENTINE,
Clerk Supreme Court
No. 1856
James NJ. Nation. Plaintiff,

Mark Tully as State Treasurer and W. (.
Davis, as State Auditor, Defendants.
Original Proceeding in Mandamus.
WRIT DENIED.
Syllabus. BY the Court. West, J.
1. Chapter 10l of the laws Of 1905, (Gen.
Stat 1909, Sec. TAD requires registration
with the state auditor OF public utility
bonds issued by cities,
land the said auditor shall be entitled
to a fee of not exceeding fifty cents for
each bond so registered in his office
Held, that such fees collected by the
plaintiff when auditor belonged to him
and he was not required by section 4,
chapter of laws of 1903 to account for
or turn them over to the state treasurer
,. The plaintiff, while holding the office
of state auditor, collected such fees and
by mistake paid them to the state treas
urer who credited them to the general
fund. An act appropriating to the plain
tiff the sum so paid, on condition that
his right thereto first be determined by
this court, was passed by the legislature
and such appropriation was vetoed, the
veto message theoretically expressing
Willingness that the plaintiff right to the
money should be judicially determined
Held, that permission to sue the state or
exemption from suit not having been eX-
pressly given or waived the plaintiff
should look to the legislature rather than
to the court for relief
Johnston c. J., Mason, J., Smith, j.
Porter, j., Benson, J., cOncurrfng-
Burch, J., dissenting.
A true copy.
Attest d A VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
lest: D. A. VALENTINE.
all Clerk Supreme Court.

No. 17454.
Earl c. Jordon and Floyd c. Jordon,
Appellants,
VS..
Jane Clark, Luella Hutchins, Clayton Nc
Intosh and Oakley Mcintosh Appellees.
Appeal from Washington County.
REVERSED.
Syllabus By the Court Johnston. C. J..
The general rule is that different writ
ings, made by the same parties, at the
same time relating to the same subject
matter, in the course of the same trans
action, and which refer to each other,
should be read together and construed as
q single contract, and, hence, a post
nuptiaI agreement and two warranty
deeds executed by parties under such cir
cumstances are deemed to be parts of
d single transaction and SO taken togeth-
er and interpreted, they show the inten-
Alon of each party to exclude the other
from the right of inheritance in the land
conveyed.
All the Justices concurring.
A true copy.
Attest. d. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 1924.
Ferdinand Bot, Appellee.


T T. Reyburn. Appellant.
Appeal from I1eayenWorth County
AFFIRMED.
Syllabus BY the Court West, J.
In an action to recover damages for the
loss of plaintiffs horse caused by a col.
lision with vehicle of the defendant it
was shown that the plaintiff driving
south with a team on the right side of
a CITY street angled across to the 1eft to
water his horses at q public trough and
Just before reaching it the defendants
servant coming north in a delivery wagon
drawn by a single horse drove rapidly be-
tween the trough and the plaintiffs
team the shaft of the delivery wagon
piercing the breast OF one of plaintiffs
horses causing its death. Defendant re-
'elested the court to instruct In sub
stance that the law of the road requires
parties travelling in opposite directions on
meeting each other to keep to the right,
that one by driving on the wrong side
assumes the risk of all such experiments
and must use greater care than If he kept
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 17429.
James Howell, Appellee.

NO 1913.
James Howell, Appellee,
m, VS..
eorporation), Appellant
Appeal from Allen County.
Syllabus Nv the SoI1tt zsasor
- mere father sues to recover for ex-
penses incurred by reason of an injury to
ms minor son, and for the loss. Of his
claim upon the factory aet," which
makes employers, liable for injuries to
employees resulting from failure to
safe guard machinery. the objection that
no one but the injured person can avail
himself of that statute is not waived by a
Iallure to raise it by demurrer or answer.
All the Justices concurring
true copy.
Attest: D. A VALENTINE
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 17453.
International Harvester Company of
America, Appellant,

No. 17453.
International Harvester Company of
America, Appellant,
VS..
BENJAMIN f: Myers, ct al. Appellees.
Appeal from Mitchell County.
AFFIRMED.
Syllabus BY the Court west, j.
I. Among the many facts shown and
found by the court were the following ::
Two minor sons rented a farm of their
father, adjoining the home place. Later
they. with an elder brother, bought 1t
and continued to work it and improve It,
they and their mother still living on the
home place, the parents having been di-
VOrced. The deed was taken in the name
of the elder brother who did not work the
land, but went into business in another
county. The deed was recorded. He used
the land a basis of credit and later
mortgaged it to secure a mercantile debt.
The mortgagOrS agent inquired OF MIN as
to possession and was told that no one
lived on the place but that the two broth
ers rented it. An examination of the rec
ords by the agent disclosed the record
title in the mortgagor. In the meantime
the two brothers had come of age and had
worked and improved the land asserting
that each owned a One-thlrd interest
therein and this was generally understood
in the neighborhood; they were ignorant
of their brothers use of the land to OBJ
tain G. edit and of his execution of the
mortgage That ordinary diligence by way
of inquiry in the neighborhoed or of eith-
er of the brothers in possession would
have revealed their claim but that no
such inquiry was made. The court adj
Judged that the brothers, William and
Henry held their interests in the land
unaffected by the mortgage of plaintin.
Held, no error
.. When the possession and use of the
land by the two brothers had been shown
it was competent to prove the neighbor-
hood notoFiety of their claim OF owner
ship.
Ali the Justices concurring.
Attesti D. A. VALENTINE.
TEeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14

and corners to be established, mistakenly
adoressed by the county surveyor to
former owner who was then deceased,
but which was duly served on the agent
OF the owners, is valid and binding as to
5hen notwithstanding the error in the adj
All the Justices concurring.
A true copy.
ATTEST: D. A. VALENTINE,
lSeaIJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 1T4G.
!. NJ Boyer. Appellee.

vs..
The state Farmers Mutual Hail Iusur-
ance Company ct al. Appellants.
Appeal from Jewell County.
AFFIRMED
syllabus. BY the Court Hurcb J.
Under the facts Of this case II is held
that a hail insurance company which is
sued a policy on a crop OF growing corn
the day after II was destroyed by a hail
storm Is liable In damages for the
amount Of the insurance which would
nave been in force before the storm had
its soliciting agent not delayed for an IN
reasonable length or time to forward the.
application on which the policy was IS
sued.
All the Justices concurring.
A true copy.
Attest: ID. A VALENTINE
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
LEGAL

upon the right side and II a collision
takes place the presumption is generally
against the party upon the wrong side.
especially II the collision takes place in
the dark, which instruction was refused
Held, no error
All the Justices concurrinE.
A true copy.
Attest: ID. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 17445.
d. L. Schoonover. Appellee.

d. L. Schoonover. Appellee.
Frank Schoonover. ct al. Appellees, ana
Phoebe Patton, Appellant
Appeal from KinRfnan County.
AFFIRMED.
Syllabus. BY the Court. Mason. J.
Where one has rendered services 20 an
other under an oral agreement that he n
to be compensated by the devise Of real
estate. the contract may be enforced IT.
respective of the question Of possession.
where the services are Of such a char
acter that their value in money can not
be satisfactorily determined.
All the Justices concurrfne.
true copy
Attest: ID. A. VALENTINE
tSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. l715S.
Q. 2. Wood, Appellee,
W. A. Custer, Appellant.
Appeal from Seward County

Appeal from Seward County.
REVERSED
Syllabus By the Court. Mason, J.
l. In an action for Islander it is com
petent for the defendant to show in miti-
cation of damages that at the time of
the defamation complained of the plain
ttff's general reputation was bad with re-
speet to the matters involved in the charge
made against him.
2. Where the plaintiff sues on account
of having been accused of stealing cat
tie the defendant is entitled to introduce
evidence tending to show that the plain
tiff had the general reputation of being
guilty of that offense. The rule stated
ing evidence that the plaintiffs general
reputation for honesty, fair dealing and
integrity was bad. The defendants
right in this regard is not limited by an
aliegation in his answer that the plain
tiff's reputation for truth and veracity
ana honesty was such that he could not
have been injured by the accusation
g. In an action for damages for being
called a cattle thief actual malice being
charged as a basis for punitive damages,
where the defendant denies having made
that charge. but avows having said
that it was generally believed that
the plaintiff had stolen cattle. he
should be allowed to testify upon what
he based the statements he ayowed
making whether he believed them, what
basis he had for them, and whether he
was actuated by a desire to injure the
plaintiff.
4. In an action for SANDER punitive
damages can be allowed only where the
defendant is found to have been aetuated
by express, as distinguished from implied,
malice.
Ali of the Justices concurring.
A true copy.
Attest D. A VALENTINE,
TSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14

y O.
Anna NJ. Clark, Petitioner, on behalf Of
George w. Clark, her husband for a
writ of habeas corpus.
HABEAS CORPUS
PETITIONER'S HUSBAND RE-
MANDED.
Syllabus. BY the Court. Benson, J.
l. Section of chapter 80 of the Laws
of 1911. providing that a person acquitted
of a criminal charge on the ground that
he was insane when the offense was conf
United. shall be committed to the asylum
Tor the dangerous insane, and shall not
be liberated therefrom except as pre-
scribed in the act, is not ex post facto
as to a person tried and acquitted that
ground after the statute was enacted for
an offense committed before its passage.
> The section referred to in the pre-
cedina- paragraph is not obnoxious to the
provision of the federal constitution that
a stale shall not deprive any person Of
due process of law, nor to the provision
of the state constitution that all persons
for injuries to person, reputation or prop
ertv shall have remedy by due course Of
law.
All the Justices concurrIng.
Johnston. c. J. concuTring especially.
A true copy.
Attest:
TSeal1 D. A VALENTINE.
ClprI1 Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-02-14
No. 1906.
Mary Roberts, Appellee,

Inc lily O1 st AafyS, Appellant
Appeal from Potta watomie County.
AFFIRMED
Syllabus. BY the Court. Smith J.
municipalities, as employers, in main
tanning a well, windmill and pump to fur
nish water to the public, are under the
same obligation as other employers to
furnish their employees a safe place to
work and, under like conditions, are like
wise responsible in damages to an en-
ployee who is injured by the negligent
failure to perform this duty.
All the Justices concurring.
a true c0py.s
Attest: D. A. VALENTINE.
LSeal-1 Clerk Supreme Court