davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
LEGAL

in no event, could the rights oe ehs de-
PENDANT have been prejudic+d as the court,
after hearing the evidence, eliminated ore
of the counts from consider alton.
2. A gas lease for a term Of ten years,
for a stated consideration, provi led Snat
if gas was found the lessor was to ave
sufficient gas for domestic purposes; tnat
the lessee was to drill four wells within
six months and to continue drilling as
long as paying wells were found royal
ties paid; and for the gas sold or market
ed from producing wells the lessee was
to pay to the lessor 800 per year on each
we'll such payment to be made on each
well within sixty days after commencing
to sell gas and annually thereafter while
gas was so sold, held, that the lease con-
tempIated that the land should be de-
veloped with due diligence and upon
failure to do so the lessor was entitled to
a cancellation of the lease as to the I'M
developed land.
g. What was due diligence in the case
was a question of fact for the trier of
the facts and upon a consideration of
the evidence it is held to be sufficient
to sustain the finding of the trial court
that due diligence in the development of
the whole tract had not been exercised
by the lessee
All the Justices concurring.
A true copy. -
Attest: d. A. VALENTINE,
TSeaII Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1z.461.
ANV- rs iUIs
Sherman Culbertson, Appellee,


Sherman Culbertson. Appellee
The lola Portland Cement Company, a
Corporation of West Virginia, and L. L.
Northrup, Appellants.
Appeal from Allen County.
Syllabus. BY the Court. Johnston. C. J.
AFFIRMED.
l. Where a lessee of gas land drills
wells on adjoining land and through them
drains the gas from the leased land and
the lessor brings action to recover the
royalties for the gas taken from his land
through the wells on the adjoining land,
as well those sunk on the leased land
it is not necessary to set out the indebted
the fact that gas was wrongfulIy taken
through the wells on the adjoining land
prevent the recovery of all the royalties
due in a single action.
9. AS the action was brought to obtain
an accounting and required the examina-
ton of long account of the gas taken
from several wells for a considerable
time, the court was warranted in sending
1t to a referee for trial.
8. 1t was competent for the court to
order an inspection OF the gas wells to en-
able it to determine the capacity of the
wells and the rights of the parties in the
premises.
l. When a lessee undertakes to develop
gas land and gives the lessor rental or a
royalty on the gas produced and does not
specify the number of wells to be drilled
there is an implied obligation that he will
fully develop the land with reasonable
diligence and sink sufficient wells to Sc
cure to the lessor the gas underlying his
land and if the lessee sinks and operates
wells on adjoining land and thereby
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
LEGAL

aside merely because the court or jury
find that the provision made for her is
in great disproportion to his property
6. In an issue arising upon an allega-
ton that an ante-nuptia1 contract hal
been cancelled and destroyed by mutual
consent of the parties thereto, declara-
tions of the husband, since deceased, were
admitted in evidence in behalf of the
widow tending to prove that the contract
had been destroyed and cancelled by nlu-
tual consent of the parties thereto. The
adverse party then offered other declara-
lions of the husband tending to prove the
contrary which were rejected. The EVIL
dence showed that the instrument had
been destroyed and the intent of the par
ties concerning its destruction was ma
terial. 1t is held that the rejected evil
dence should have been received
All the Justices concurring.
a true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
d. A. VALENTINE,
Clerk Supreme Court.
No. 1925.
The State of Kansas, Appellee,

No. 1925.
The State of Kansas, Appellee,
George H. Terrill, Appellant
Appeal from Pawnee County.
AFFIRMED.
Syllabus. BY the Court. Johnston, G. ].
l. The fact that some of the false rep
reservations made by a defendant, who
was convicted for obtaining money by
false pretenses,s may have been nero
opinions and some that did not come
within the condemnation of the statute is
not fatal to the conviction where false
representations were made by him which
contributed to some material extent in
inducing the owner to part with his
money.
2. A false representation made with in
tent to cheat and defraud another by
which money is obtained is a false pre-
tense within the meaning of section "a of
the crimes act whether it is oral or in
writing.
8. The information examined and held
TO state an offense under the statute and
it is further held that there is sufficient
testimony to sustain the conviction.
All the Justices concurring.
A true copy.
Attest; D. A VALENTINE.
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 17,725.
No. 17,725.
Jennie s. Gordon, Appellee.


T4llia Gordon Num- ct al, Appellants.
Appeal from Shawnee County.
REVERSED.
SvIlabus BY the Court. Benson, j.
i. A wife dOmiciled in missouri oegan
a.. action in a circuit court of that state
AGAINST her husband, resident OF TINS
state for divorce. Service was MADE by
r11b1ication The husband did not appear
and a Judgment for divorce was tenoe 80
es nrayed for The proceedings were reg
Mar according to the laws OF missouri uh-
less the notification of the peuuon was
insnfficient the affidavit bearing date
tiIaS If is held that the Missouri court
had Jurisdiction, and the Judgn11ent ao i az IL
vorce is not open to collateraI at~aGh "a
an action in a district court OF TINS slatT-
Where a judgment rendered Dy pup
,4oa.ior is offered in evidence in col
lateral action in the same court IN wren
- Judgment was rendered. and the AMI
davit on file shows by its recltaIs ena' rre
gence is admissible to prove that due p"o-
iication was in fact made. l.. -, :,
IN an action to quiet title TO land IN
Arkansas where service was mace py
=. zion and the defendant did not APP
PPear she is not bound beyond the prop
- which was the subject OF that SUIT
Srit1a 70 land in this state is not anecteo
- tba Judgment of the Arkansas court N
tnat Where the execution of an ante-nup-
~ contract pleaded by defendant Is
la,,ied under oath and the execution OF
dsiIie o1fract differing but slightly In It's
IKE .,Isai terms, is alleged in the reply,
ma Sss,,e is not restricted to the execution
f.e .isa Contract as pleaded by the defend
ant. s,z v,,ifa is coupetent 70
o. - Contract and has fair and ade-
mars oirnovrIedge concerning the future
SS,,sfand's property when she sneeEs ~
-. ante-nuptial agreement, WnlSlp y - -
81 sror a deceit or fraud. it should not De set
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No 17,729.
E. F. Evans, Appellee.

vs.
The Central Life Insurance Company, .
corporation, Appellant.
Appeal from Harvey County.
AFFIRMED.
Syllabus B. the Court. Mason, j.
1. One who signs an application for Ire
insurance without reading it, upon the as
surance of the soliciting agent that 1t
conforms to representa- tions orally made,
and that such signing is customary but
not necessary. may refuse to accept
policy rendered him, on the ground that IL
does not meet such representations, not
withstanding the application contains
provision that no statement made by the
solicitor would affect the rights of the
company unless embodied in the writer
application.
2 Where such applicant has been COM
PEELED to pay to an innocent holder n
negotiable premium note given at the
time of such application, he may recover
from the company the amount so paid.
g. In the absence of a statute allow
ing it, a successful plaintiff is not entitled
to recover his attorneys fee, even in an
action for damages on account of the de-
PENDANTS fraud or malicious misconduct.
A. Judgment purporting to be for tie
recovery of the plaintiffs attorneys fee
can not be upheld on the theory that 1t
was allowed as punitive damages, where
the record shows that no issue to the
allowance of punitive damages was pre-
scented or determined.
All the Justices concurring-
Attest: D. A VALENTINE.
[SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 17,2S3.
Joseph Readicker, Appellee,

No. Il, 2S3.
Joseph Readicker, Appellee,
H. Denning, q. A Denning, and R. H.
Bennett Appellants.
Appeal from Allen County.
REVERSED.
Syllabus. BY the Court. Mason, j.
l. Upon a Suggestion, which appears 10
be well founded, that judgment had
been affirmed upon a different theory OF
the facts from that entertained by the
trial court, the affirmance is set aside
and a new trial ordered.
?. The evidence is held not to warrant
the enforcement of a contract for the sale
of real estate in the absence of any
memorandum signd by the owner.
All the justices concurring.
A true copy.
Attest: D. A VALENTINE,
TSeaIJ CLERK Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No 1869.
John D. Funk, Appellee,


John D. Funk, Appellee,
The Shawnee Fire Insurance Company,
Appellant.
Appeal from Marion County.
AFFIRMED.
Syllabus. BY the Court. Mason. J.
1. A party still has the right to use the
deposition of witness who resides in
another county, Notwithstanding that I'M
der the present statute he might require
his personal attendance at the trial.
2. A judgment will not be reversed
merely because of the refusal of the trial
court to strike out evidence which was
competent when admitted, but was after
wards shown to be secondary, when no
actual prejudice appears. Clements v.
Gas co. 81 Kan. AS, - Pac. followed.
s. The rule that a special verdict, in
order to support a judgment, must In
cIude a finding upon every fact essential
thereto has no application where the
court upon request states the conclusions
of fact found separately from the con-
illusions of law. In that case in the abb
sence of a request for further findings,
the judgment implies a finding favorable
to the prevailing party upon any issue
not specifically covered.
All the Justices concurrtng.
A true COPY. -..
Attest: d. A. VALENTINE,
TSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
OARTHT HIT Sc Sc WDOODWL
No. 1853.
Walter s. Dickey, Appellee,


The Coffeyville vitrified Brick & Tile Co,
Appellant.
Appeal from Neosho County.
JUDGMENT MODIFIED.
Syllabus BY the Court. Porter, ].
/ An oil lease provided that if oil was
found on the premises in paying quant-
ties the lessee should drill eight wells and
paw the lessor a certain royalty of the oft
produced, and that for each six months
failure to operate any well the lessor was
to be paid 500. There was further pro-
vision that the lessee might surrender the
lease as to any unproductive well and
should remove the machinery and fixtures
therefrom and be released from further
obligation. Held, that after the required
number of wells were drilled the lessee
was liable only for the stipulated roysl-
ties so long as the wells were operated In
good faith, and that after operations
ceased and until the lease was surrender
ed the lessee was liable for 800 per well
for each six months failure to operate.
3 The mere failure formally to surren-
der the lease after the casing and machin-
cry had been removed from the wells and
ali operations had ceased did not entitle
the lessor to further payment of rentals.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
(SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09

H. E. Fisher, Appellant,
Leu Montgomery, August Drauhard, A. K.
Horton, and Odell Township, Appellees.
Appeal from Harper County.
REVERSED.
Syllabus. BY the Court West, j.
1. A land owner claiming that he had
been damaged by overflow caused by a
certain ditch, sued the township, the trus-
tee, the road overseer and an adjoining
land owner, to recover damages and for
prohibitory and mandatory injunctions.
Thereafter the parties agreed upon set
Element of the entire controversy, and en-
bodied their agreement in written stip-
ulation providing among other things that
the action should be dismissed In pur-
suance of such stipulation the court en-
tered judgment of dismissal, the journal
entry being approved by counsel There
after the defendants presented a motion
to set aside the judgment, the grounds be-
ing that the stipulation was made without
the knowledge of the township board,
and was made improvidently and was
highly prejudicial to the interests of the
township and the highway involved. over
the objections of the plaintiff and without
evidence or showing, the judgment was
set aside. Held, Error.
2. The Civil Code, Sec. 500, authorizes
the vacation of a judgment at or after
the term, but only upon grounds therein
expressly mentioned.
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE,
CSeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1857.
Frank Henry. Appellant,

No. T,6I1.
Frank Henry. Appellant,
vs.
The Kaw Boiler Works, a corpaTtnershlp
composed of F. G. Palmer and t.
B. Gilbert, Appellees.
Appeal from ChautauQua County.
REVERSED
Syllabus BY the Court. Mason, j.
l. Where an employee is injured BY
reason of the breaking of a pole, constr
tuting a part of a hosting apparatus
and formed by screwing together two joints
of well casing, evidence that the tnrea0S
were rusted, and after the accident We're
found to be stripped off so far as trey
had been engaged, is sufficient TO take 10
the iury the question whether the en-
ployers were negligent in furnishing de-
fectiye material material for the conStruc-
ton of such apparatus.
g Where under the direction of fore
man who has complete charge of the
building of a steel tank, hoisting APP
paratus is prepared by the workmen,
which is unsafe, not because of any de-
feet in the materials, but by reason OF
negligence in the manner in which they
are put together and in consequence an
employee is injured who had nothing to
do with the preparation of the apparatus,
and had not sufficient knowledge or ex-
perience to enable him to judge of its
safety the employers are liable for the
results of the foremans negligence.
All the Justices concurrIng.
A true copy.
Attest:
TSeaL1 d. A. VALENTINE,
Clerk SuOrerne Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 17,76S.
VIM. Hembrow, Appellant,

No. II, 76S.
VIM. Hembrow, Appellant,
VS..
w. NJ. Winsor, ct al, Appellees.
Appeal from Summer County.
REVERSED.
Syllabus BY the Court Porter j.
An action may be rightly brought
against nonresident defendants in a
county where they have property, and in
such an action where a resident of the
state has been rightly Joined as defend
ant, and service upon the nonresident de-
PENDANTS has been obtained by pubIfca-
ton, or where they have entered an ap-
pearance in the action, a summons may
lawfully issue to another county for the
resident defendant.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE
CSeall Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 17,723.
Andrew P. Westine, Appellee,

Andrew P. Westine, Appellee,
The Atchfson, Topeka and Santa Fe Rail-
way Company, Appellant.
Appeal from Neosho County.
AFFIRMED.
Syllabus. BY the Court West, j.
The findings showed among other things
that the plaintiff, brakeman in the EN-.
ploy of the defendant, about seven-forty
clock, p. m. on July II was walking
south on the main track receiving sig
mails from the conductor and repeating
them to his engineer who were moving
their train on siding to clear for an IN
coming passenger train. The latter backed
in on the main track. Its conductor was
on the rear car and could have discov-
cred by the exercise of reasonable care
that the plaintiff was unconscious of its
approach and of his own danger in time
to have stopped the train, which the con-
ductor could have done within fifteen
feet. That the passenger train struck the
plaintiff and dragged him thirty feet.
Held, that under all the circumstances
the question of plaintiffs alleged con-
tributory negligence was for the jury.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1880.

No. 1880
H. l.. Mills, ct al, Appellees,
c. E. Ressler. Appellant
No. 1854.
H L. Mills, ct al, Appellees.
o. B. Cleveland, Appellant.
Appeals from Harper County.
AFFIRMED.
Syllabus BY the Court. Burch. J.
/. While contracts in general restraint
of trade or business are void contracts
less restrictive are invalid only when
inimical TO the public welfare and they
are to be judged, not by the arbitrary
measure of extent in time or extent in
space, but by their reasonableness under
all the circumstances, having regard both
for the liberty of person to make bene-
fetal use of his own and the public con-
sequences of such use.
2. The contract involved in this case.
limiting the right Of physician to prac-
tice a speciality and limiting his right to
sell or disclose certain formulas used In
such practice, is held to be valid.
3. physician who is member OF
a firm practicing a speciality and making
use of certain remedies and formulas in
such practice, may on retiring sell his in
fluence and good will to the firm OF its
successors, and having done so he and
any one in collision with him may be
enjoined from doing any act which pre-
vents the vendees from enjoying the bene-
the same extent as they were enjoyed
before the sale.
All of the Justices concurring.
A true copy.
Attest d. A. VALENTINE.
ISeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1908.
The State of Kansas, Appellee,

No. 1s,0SS
The State of Kansas, Appellee,
vs.
T. B. Coppage, Appellant.
Appeal from Bourbon County.
AFFIRMED.
Syllabus. BY the Court. Smith, J.
1. An employer has no inherent right
to coerce an employee to make a written
or verbal contract, as condition of re-
naming in his employment, not to become
or remain member of labor organiza-
ton.
2. The legislature, deeming such CO.
ercion against public policy, violated no
constitutional rights of employers in the
enactment of sections 1914 and 1875 of the
General Statutes of 1909, and such Sec
lions are valid.
Johnston, c. J., Burch, j., Mason. J.,
Benson, j., concurring.
Porter, J., and West, J., dissenting.
A true copy.
Attest: D. A VALENTINE.
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
D. A. VALENTINE.
Clerk Supreme Court
No. 17,756.
E. NJ f. Thompson, Appellant,


Joseph Barber, Appellee.
Appeal from Jackson County.
AFFIRMED.
Syllabus. By the Court. Johnston, c. ].
1. An action for the recovery of money
was pending between parties and they
agreed to submit it to the arbitration of
certain designated arbitrators. Their
agreement provided that the action in
court should be continued and that any
award made in pursuance of their SUBJ
mission might, at the instance of either
party and without notice to the other,
be made rule of the district court
Held, that the submission was a statutory
arbitration and that the court had power
upon application, to enter judgment on
the award, If valid, or to set 1t aside upon
any of the statutory grounds If it was
found to be invalid.
2. The fact that considerable time lapsed
after the award was made before the
court acted in setting it aside did not
deprive the court of power to take such
action. Nor was the successful party pre-
cluded from asking for that remedy be-
cause he had taken down a part of the
fund which had been deposited as a guar
anty that he would perform the award
when made and to secure the payment
of costs.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1921.
Joseph l.. Landrey, Plaintiff,

Joseph L. Landrey, Plaintiff,
Frank NJ. Holcomb, Defendant.
Original Proceeding.
WRIT ALLOWED.
Syllabus. BY the Court. Mason. J.
Where a city is divided into two dis
tricts, each having a city court, territory
added to the city will, in the absence OF
some specific provision to the contrary.
become a part of the district to which 1t
is contiguous, notwithstanding the act
creating the courts provides that each dis
trict shall consist of certain wards las
said wards are now constituted and es-
tablished;'' that provision means merely
that the line of division between the two
districts as so located will not be affected
by subsequent changes in interior ward
lines; it does not prevent the enlargement
of the districts by the addition of tracts
afterwards taken into the city.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE
ESeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09

No. 17,747.
c. o Fisher, Appellee,
Delaware Township of Wyandotte Coun-
ty, Kansas, Appellant
Appeal from Wyandotte County
COURT OF COMMON PLEAS.
REVERSED
Syllabus. BY the Court Benson, J.
A township engaged in improving a
public highway acts in the capacity of
an agency of the state and is not liable to
an employee for personal injuries occa-
stoned by the negligence of its officers.
All the justices concurring.
A true copy.
Attest:
ISeaLl d. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09

No. 17,77.
w. H. Pottorff, ct al, Appellees,
VS.,
S. H. Ward, Appellant.
Appeal from Ford County.
REVERSED.
Syllabus BY the Court. Benson, j.
/. Where thresherman agreed with an
owner of wheat to cease threshfng for a
time within which necessary. repairs
tbreshing was resumed contrary to the
agreement, causing the destruction or
wheat by fire in the absence of the own
the loss thereby caused should fall upon
the party violating the agreement
3 An instruction that notwithstanding
the agreement the thresherman could not
he held liable unless the fire was caused
by negligent operation of the machine Is
erroneous.
All the Justices concurring.
A true copy. -
Attest. D. A VALENTINE,
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 1T.774.
Alkaline E. Story. Appellant,

No. 1T,774.
Alkaline E. Story, Appellant,
VS..
Ingnetz Lang and Rudolph Augustine, APP
pellees.
Appeal from Trego County.
AFFIRMED.
Syllabus BY the Court Johnston r. J.
The purchasers of a tract of land agreed
to give the owner for it certain quantity
of wheat within eleven years and that on
each year he would deliver the wheat
grown on the land, except so much
was necessary for seeding and to pay the
expense of harvesting and threshing tire
crops, and that If the purchaser had not
paid the stipulated quantity at the end
of the eleven year period he would pay
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
LEGAL.
No. 17,TG.
Ida E. williams, Appellee,

Ida E. Williams, Appellee,
VS..
The City of Parsons, APPELLANT.
Appeal from Labette County.
AFFIRMED.
Syllabus. BY the Court. Benson. J
A telephone guy wire had long been
maintained near the curb line of a city
street over or quite close to a pathway
on the side of an intersecting street A
woman crossed the first named street at
this point and stepping upon the curb, en-
counteTed the wire and was thrown down
and injured. The accident occurred III
the evening. Although the woman had
passed near the place often she had not
noticed the wire. 1t is held that the evil
dence was sufficient to warrant the sub
mission of the questions of negligence and
contributory negligence to the jury.
All the Justices concurring.
a true copy
Attest: d. A. VALENTINE.
ISeaL1 Clerk Supreme Court.