davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1890.
John Arlington, Appellant,

John Arlington, Appellant,
A. NJ. Horner, Appellee.
Appeal from Kingman County.
AFFIRMED.
Syllabus. By the Court Burcia J.
I. The driver of an automobile on a
rural highway snail not operate his au-
tomobtle at a greater speed than is
reasonable OF proper having due regard
for the traffic and use of the highwav.
or so as to endanger the life or limb
OF any person, or in excess of twenty
$50 451.) N9
= When approaching persons driving or
riding domestic animals an automobile
driver shall, if such animals appear
FESTIVE ana frightened. reduce speed, if
practicable turn to the right and give the
road, and upon signal from the rider or
driver, proceed no further toward such
animal or animals but remain stationary
long enough for them to pass (Geri
Stat 1909, Sec. 452.)
s. In other respects the driver OF an
automobile shall, when meeting or pass
ing persons driving riding domestic
animals, exercise the care and caution
TO prevent injury and insure safety which
a reasonably prudent person would ex-
ercise, taking into consideration all the
clements OF the situation including the
appearance and attributes of his peculiar
kind of vehicle. Gen. Stat 1909, See 452.)
4. A corresponding duty rests upon q
person riding or driving domestic animals
take cognizance of the conditions and to
exercise the care and caution which a
reasonably prudent person would display
in their presence.
5. 1t is the duty OF a driver on the
public highway whether of an auto
mobile or of domestic animals. TO look
ahead and see whatever there may be in
the line of his vision which should af-
feet his driving and If the driver OF u
team knows that an automobile is 3p-
preaching from the rear. to act with
reasonable prudence in the light OF such
knowledge.
All the justices concurring.
a true copy.
Attest: II. A. VALENTINE
TSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1879.
VI. 8. Richardson, Appellee.

W y fslCIldEdSOIs ApPCASs
We.
Q. H. Simpson G. r. Ambrose, and T. q.
Hetrick as The Kansas State Board OF
Dental Examiners, Appellants.
Appeal from Franklin County.
REVERSED.
Syllabus. By the Court. Mason, j.
L. Where the state board of dental e.
aminers acting within its jurisdiction, re-
revokes the license of a dentist for al
legged misconduct, and an action IS
brought 10 enjofn the enforcement OF the
order, on the ground that it was fraudu-
iently made, o finding by the court that
the members Of the board acted honestIy !
and iT1pa-tiSily, and not arbitrarily, COM
peis a judgment sustaining their decision,
notwithstanding a further finding that
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. 1882
Deroy Danielson, Appellee
VS..
Lincoln r. Scott, Appellant
Appeal from Cheyenne County
AFFIRMED
SyHapuS. BY the Court Burch L
/. The purchaser OF stock of msr-
chandlse from partnership agreed to
pay certain notes and an account owed
ny the firm. as part of the price. After
wares ne procured the notes to be IN
qoTsed and the account to be assigned. ,
hifn In further payment of the price ne
gave to one of the partners, who owned
al the property of the firm, his noe
w men sued by the payee upon this note
the purchaser counterclaimed upon tne
1lrm notes and account which had been
transferred to him. Held, the individual
partner was entitled to the benefit of the
purchasers promise to the firm to paw
the firm Indebtedness upon which the
counterclaim was based.
- Certain defects In the pleaiines and
proceedings considered and held to b.
without prejudice to the substantial!
Slghts Of the complaining party.
All the Justices concurring.
a true copy.
Attest D. A. VALENTINE,
tSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 17,7s0.
Charles ]. Lofste, Appellee,

vs.
Otto f. Bohman and Elizabeth g. Boh-
man, Appellants.
Appeal from Trego County.
MODIFIED.
Syllabus BY the Court west Il
l. The owner who has partially paid
the contractor for the erection OF a
building, should not be subjected to a
Judgment in his favor for the claimed
balance until the Sub-contractors have
had their claims and liens finally ad-
Indicated
2. When the contractor has in good
faith constructed the building in sub
stantal compliance with the terms Of the
contract he is entitled to recover the
agreed price less such sum as will be re-
quired to effect strict and literal com
pliance-
An the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
tSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. IS, 1873.
Rosa Johnson, Plaintiff,

No. Is, 1873. 80
Rosa Johnson, Plaintiff,
". e. Connolly, County Superintendent,
etc, Defendant.
Original Proceedings in Mandamus.
MOTION TO QUASH OVERRULED.
Syllabus. By tine Court. Porter, ].
Sec. 7.4s5 of the General Statutes Of
1909 which provides that the county
superintendent of public instruction
may indorse unexpired teachers certi-
ficates regularly issued in other counties
when presented to him, imposes a duty
upon him and creates a corresponding
right in the holder of such certificate to
have the same endorsed. Unless valid
reasons exist for Withholding his en-
dorsement his duty is imperative. and
upon his arbitrary refusal to perform the
duty mandamus will lie to compel per-
Torrance.
All the justices concurring except
Burch, J., who did not sit.
true copy.
Attest: d. A. VALENTINE,
[SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

Cora Dobson. Appellant,
Triple Tie Benefit Association, Appellee.
Appeal from Barber County.
AFFIRMED.
Syllabus. By the Court. Johnston, G. J.
Ordinarily If benefit association re-
ceives and retains dues and assessments
paid by member after he is in default
and subject to suspension and forfeiture
and leads him to believe that he is still
a member in good standing it is estopped
to insist on a forfeiture of membership,
but on the testimony in the present case
it is held that there was a forfeiture of
benefits by reason of the nonpayment OF
dues by the member and that there was
no waiver of such forfeiture.
All the Justices cOncurring.
true COPY.
Attest: d. 4. VALENTINE.
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1852
The State of Kansas, Appellant,

No. II ,As2.
The State of Kansas, Appellant,
H. j. Price, ct al, Appeliees.
Appeal from Franklin County.
REVERSED.
Syllabus, BY the Court. Smith, j.
l. BY the provisions of the statute a de-
fendant, who has been convicted Of
felony and appeals to the supreme court
from such conviction, may be granted d
STAY of the sentence pending the prepara-
ton and hearing OF the case on appeal
upon a sufficient undertaking, given by
others and not himself, upon the approval
thereof by the proper officer OF the state
g. When such an undertaking Is pre-
sented to the proper officer for approval
he may. IL he finds the same sufficient
approve the same and grant the stay al
though the body of the bond may indi
cate that it was prepared to be signed NOT
only my those who did in fact sign II but
by others also.
g. In such case the makers of the boI.d
are not to be excused from liability
thereon although they may have under
stood and agreed at the time Of signine
the same that the undertaking should not
become valid until signed by such others;
It devo1veS upon such signers to see that
such undertaking or agreement is com
pleted before livery
All the Justices concuTring.
y true copy.
Attest: d. a. VALENTINE,
TSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. f7.712
The A. T. & 8. f. Rly Co., Appellant,

The A. 7. & s. f. Rly Co., Appellant,
VS..
The Board of County Commissioners CT
Harper County ct al. Appellees.
Appeal from Harper County.
Syllabus. BY the Court. Porter, j.
Chapter IS, Laws 1865, Special Session,
made it unlawful for the local taxing :
ficers in any county to make any tax
levy that would produce a sum of money
in excess OF two per cent. more than a
sum that would have been produced b.
the levy of the maximum rate authorized
for the year 1867. Held, that the fact thai
the taxing officers OF Harper County in the
year 1907 used as q basis for the levy the
valuation of taxable property before the
same was raised by the state board OF
equalization did not prevent them in 1868
from making 81 levy for general purposes,
which would produce a sifral not in ex
cess of two per cent. moro than trey
might lawfttiiy have raised in 1871, II In
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. 1859.
Henry G. Kali, Appellee,
vs..
WILDER L. Bell, Appellant.
Appeal from Allen County.
AFFIRMED.
SYLLABUS BY the Court. Burch. j.
l. A written contract for the sale OF
land stipulated that the vendee should
pay the price in school orders for school
supplies. The validity of the orders was
expressly guaranteed. When the contTacT
was contaminated by delivery of tne-deed
to the land and delivery of the orders. an
assignment to the vendor of the land was
Endorsed on each order, which speciTied
that the assignment was without re-
course. Held, the written guaranty of the
validity of the orders not abrogated
2 The evidence examined and held -
be sufficient to establish the invalidity
of the order sued on, for want OF power
in the school board to purchase the article
odered.
8. The practice OF filing abstracts
agreed to by counsel for both sides com
nended.
All the justices concurrtng.
A true copy
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
D. A. VALENTINE,
Clerk Supreme Court.
No. 1858,

No. 1883.
i. H. Madison, Appellee,
Inc, kansas City. Mexico & Orient Rail-
way Company, Appellant.
Appeal from Sedgwiclx County.
division No. u
AFFIRMED
syllabus. Ely the Court. Johnston, c. J.
/. A pretudical statement by a juror
10 his fellow jurors made as a positive
fact and within his personal knowledge
VIII ordinarily be deemed sufficient ground
Tor setting aside a verdict, but a state
ment by juror to other members that he
had heard rUmor to the effect that one
OF the parties to the action had made
an offer OF compromise which was not
accepted and which statement was treat
ed as a mere ruInor by the jury and not
as a fact within the personal knowledge
Of the juror who mentioned the rumor
is not sufficient to overthrow the verdict.
2 Htigant has right to special find
1ngS on the ultimate facts in the case but
the court is not warranted in submitting
questions which require the itemizing Of
such facts or which call for mere evil
dentiary matters upon which such facts
were based.
= Under the testimony 1t is held that
the award of damages herein is not so
great to indicate that the verdict was
the result of prejudice or passion.
All the Justices concurr1ng.
A true copy.
Attest: D. A. VALENTINE,
LSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1884.
w. Z. IfUtchins, Appellant.

VS..
l.. Stanley. Appellee.
Appeal from Lyon County.
AFFIRMED.
Syllabus. By the Court. Benson, J.
A non-negotiable promissory note was
given to cover margins in a board of
trade transaction speculation in the
price of wheat, actual sale or delivery
being intended. The instrument was en-
tlorsed before maturity for full value to
the appellant who took it without notice
of the consideration. At maturity the APP
pellant was informed of the consideration
and accepted q new negotiable note for
the principal, the interest being paid. In
this action upon the new note it is held:
J. That the note was given in d
gambling transaction prohibited by law
Gen Stat. 1909. Sec. $3.50 and was void
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1875.
NJ. e. Dixon. Appellant,

II. W. Windscheffel. ct al, AppeIlees.
Appeal from Sherman County.
AFFIRMED.
Syllabus BY the Court. Mason J.
The allegation of a pleading that the
running. OF the statute of limitations has
been prevented by the absense of per-
son from the state for specified time.
is not necessarily established by proof
Of his non-residence therein.
All the Justices concurring.
true copy.
Attest: ID. A. VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. 17,T2
May L. Parker and Eff1e q. Parker, Ap-
pellees,
VS.
Julia A. McLain, as Executrfx of the
Estate of Carey McI4ain, De-
ceased Appellant.
appeal from Wyandotte County.
Division No. 2.
AFFIRMED.
Syllabus. By the Court. Mason, j.
Where real estate standing in the name
OF one person is attached as the property of
another, upon a trial of the question OF
the true ownership the attaching creditor
should be allowed considerable latitude
the examination of his debtor; but where
the case is tried without jury judg
ment will not be reversed because OF
limitations placed by the court upon the
inquiry. where there is probability
that the admission of the rejected evil
dence would have resulted in different
decision.
All the Justices concurring.
a true copy.
Attest:
ISeal1 D. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. Is, 2S2. ~
The State of Kansas Appellant,

VS.
robert z. Gilmore, Appelle.
Appeal from Stafford County,.
REVERSED.
Syllabus. BY the Court. West, ].
L Chapter 163, Laws of 1911 relating to
desertlon and non-Support of wife by hus-
band, or of children by either parent, Is
not unconstitutional by reason of the pro-
for periodical payments. nor because OF
the requirement of section seven relating
to wages of one confined at hard labor,
nor because the punishment Is unusual
2 The chief object of the act Is to COM
pei the husband, when able. to support
wife leaving her in destitute or necessI--
Gus circumstances 1T is his duty to pro-
vide for her there unless some reason be
shown why she Should follow him else
where.
s. The offense is committed either by
deserving and leaving her in destitute or
neceSSitous circumstances or by neglect
or refusal to provide for her whenever
after such desertion she becomes destitute
or necessftous- And a husband who de-
and left the state before the act took ef-
feet, and after it became operative voluR-
tarIly returned to be a witness in a civil
action between other parties and while
mere neglected or refused to provide for
her, she then being in destitute and
neceSsitous circumstances thereby rem
dered himself liable to prosecution.
4. In a criminal case a plea to the
jurisdiction which goes only to matters Of
defense may properly be denied.
0. plea to the Jurisdiction Is not re-
ceivable unless proved or positively veri-
fled.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
tSeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
LEGAL.

that year they had used as a basis the
increased valuation of the state board.
All OF the Justices concurring.
A true copy.
Attest.
ISeaLl D. A. VALENTINE,
Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. 1925.
Cyrus Super, Appellee,
Model Township in Norton County,
Kansas, Appellant.
Appeal from Norton County.
AFFIRMED.
Syllabus. BY the Court. Benson, ].
/. An automobile was driven over a
highway at night into a river at a public
crossing from which the bridge has been
recently carried away by flood. There
was no barrier or sign of warning but
the driver knew that he was approaching
a crossing at which he supposed a bridge
was standing. It is held a. that 1t was
not error to refuse to give an instruction
to the effect that the approach to
stream is itself warning of danger to
a person unacauainted with the road
driving an automobile in the night, which
requires him to see and know that
bridge is reasonably safe.
2. That an instruction to the effect that
the crossing of a stream is an indication
that caution is required of the driver
in the circumstances stated above, is suf-
ffcient when given in connection with
other instructions stated in the opinion.
s. The question whether the driver was
exercising proper care and prudence tax
ing into consideration all the circun1-
stances and conditions was one OF fact Tor
fine Jury 1t cannot be held as matter of
law that the speed of twelve to fifteen
miles an hour was negligent.
All the Justices concurring.
A true copy. -rrx,r
Attest: d. a. VALENTINE.
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1884.
Nancy L. Sanborn, Appellee,
VS.

city Of Wichita, Appellant
Appeal from Sedgwick County.
Division No. /.
AFFIRMED.
Syllabus. BY the Court. Smith. ].
In action wherein the evidence fairly
tends to support the findings and verdict
which are approved by the court. and
judgment is rendered in accordance there
with the Judgment viii not he reversed
in this court on the ground Of the in
sufficiency of the evidence.
All the Justices concurri1g.
a true copy.
Attest: u. A VALENTINE.
tSeaLJ Clerk Supreme Cour:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1882.
A. r. Hetzer, Appellant,

NO. Ii, SoS
A. r. Hetzer, Appellant,
vs..
Thomas Burberry and Frank Raper,
Appellees.
Appeal from Kearney County
REVERSED.
Svlizb bus BY the Court Benson.
l. An admission made upon the trial
of an action in ejectment that a decree
in a suit to quiet the title to the same
land had been regularly rendered In favor
of the plaintiff in that suit "ouietlng his
title to the land in controversy against all
parties then claiming an interest therein,
is insufficient to bar the grantee in tax
deed issued upon the land nine months
after the decree was rendered The IAN
guage of the admission Is interpreted as
referring to persons claiming an interest,"
in the litigation and parties to the actlon
and not to the holder of an outstanding
tax sale certificate upon which the tax
deed was afterwards issued.
> \ tax deed void upon its face, under
which possession had never been taken.
does not give to the holder sufficient
standing to successfully assail in eject
lnent the later tax deed OF a party III
possession which is valid upon It's race
but voidable because of antecedent II
Irregularities.
All the Justices concurrins.
A true copy. -.
Attest: .. A. VALENIIrf T..
tSeaLI Clerk supreme court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
D. 4. VALENTINE,
Clerk Supreme Court.

No. 17,15S.
T. c. McCune, Appellant,
J. NJ. RatcHff, Appellee.
Appeal from Sedgwick County.
Division No. I.
AFFIRMED.
Syllabus. By the Court. Benson, j.
l. Rulings upon the admission of testi-
nlony are examined and approved.
9. The decision in Mccullough V. Hayde.
So Kan. 734, 109 Pac. 176 relating to the
measure of damage upon 3. building con-
tract for defective construction is fol-
lowed.
s. Failure to give an instruction stat
ing the measure OF damage is inlmaterial
where the evidence is confined to specific
items set out in the pieadings and the in
structions restrict the jury to the con-
sideration of such itemS-and no request
is made for an instruction upon that sub
ject.
All the justices concurring.
A true COPY.
Attest: d a. VALENTINE,
TSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. -17,s51.
William Kershaw. appellant.

No. ISL.
William KerShaw, Appellant,
". L. Schafer, ct al, Appellees.
Appeal from Pawnee County.
REVERSED.
Syllabus. BY the Court Smith. J.
1. Generally an agent employed to lind
a buyer for land who has received an
offer from a prospective buyer therefor,
has communicated such offer to his absent
principal and has received an acceptance
from the principal, may, if he has no
knowledge of better offer. communicate
such acceptance to the prospective buyer
and close the deal so far as his duties
are concerned. Thereafter he may engage
as agent for the purchaser and resell
the land at an advanced price. If, how
ever, the agent has information at any
time before communicating the accept
ance to the prospective buyer that a
greater price can be had for the land than
he communicated to his principal then 1t
is his duty, in the exercise OF good faith,
not to communicate the acceptance to the
buyer but to secure the higher offer for
his principal and advise him thereof.
g. An instruction which might be mis-
leading but which has become i1nmater1ai
by reason of the findings of the jury is
not q ground for granting a new trial.
All the Justices concurr1ng.
a true copy. .
Attest: D. A. VALENTINE.
LSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
no. 1887.
L. S. Ellis, Appellee,


NJ l.. Woodruff, ct al, Appellants.
Appeal from Greenwood County.
AFFIRMED.
Syllabus BY the Court Smith. j.
/. The owner Of a stock OF merchandise
store furniture and fixtures, sold the
same to two purchasers who Jointly e1-
cuted promissory notes for the purchase
price; at the same time combined Dill o.
sale and contract was executed between
the purchasers, which recited the amount
owing by the purchasers to the seller.
evidenced by notes of even date with the
contract; also that the purchasers have
agreed to apply the net proceeds from
sales from said stock and all other goods
put into said stock coward the payment
Miss - be appointed trustee to receive
all moneys coming in from sales said
stock ....'' Then follows an agree
Inent as to how the money shall be al
piled, where deposited, etc Nothing,
however is said in this contract in refer
ence to the possession OF the property
sold. Whenever the third person Is r.
ferred to therein it is as trustee; Held.
tnat the instrument did not vest the
right of possession of the property in the
third person or give her lien thereon,
but simply made her a trustee to receive
and apply the money taken in for retail
sales or from sales in bulk as directed
thereby.
, No issue of fact is presented by the
pleadingS in this case
All the Justices concurring.
a true copy. -
Attest: D. A. VALENTINE.
TSealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11
No. 1888.
L. 7. Walter. Admr. etc: plaintiff.

No. 1883
L. I. Walter, Adnr, etc, Plaintiff,
Humphrey Calhoun, (appel1ee,)
and Ed. Anderson, (appellant,)
Defendants
Appeal from kingman County.
AFFIRMED.
Syllabus. by the Court. Porter, ].
l. Where the original of writing can
not be produced d copy thereof made from
memory by one who knew the contents
of the original is admissible as secondary
evidence.
.. y mortgage in possession is charge
able with the reasonable rental value of
the use and occupation of the premises.
). Where there has been application
of the proceeds of the rents directed by
the mortgagor interest should be com
puted on the Indebtedness for the whole
period without annual rests and where
the mortgage is entitled to interest on
the debt he is chargeable with interest
on the rents.
4. Ordinarily q mortgage in possession
is not entitled to compensation for per-
5onal services in the management of the
property, but the rule is not fnflexible;
and upon the facts stated in the opinion
It is held that an allowance of ten per
cent, as commissions for the collection of
rents is not inequitable.
5. In d suit to have q deed declared
a mortgage and to redeem therefronl,
held, that the court properly refused to
credit the mortgagor with usurious in
terest.
All the Justices concurring.
a true copy
Attest: d A. VALENTINE.
LSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-02-11

No. 13, 2S7.
II. Z. Pendry, Appellant,
J. n. Edgar, ct al, AppeIlees.
Appeal from Shawnee County.
On Rehearing.
Former Decision Adhered to.
Syllabus. BY the Court. Benson, J.
A contract entered into between the
school textbook commission and the
author of a primary reading chart to sup
ply the needs OF the state for such
chart, does not compel a school district
board to purchase one of the charts for
use in the district school.
All the Justices concurring.
a true copy. ...
Attest: D. z. VALENTINE,
TSeaL1 Clerk Supreme Court.