davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
E(AI

the appeal bond nor was the appellants
liability measured by the penalty of the
bond, that when judgment was rendered
against appellant it became liable to pay
double the value of the use and occupa-
ton of the property from the date of the
appeal until the delivery of the property,
and, that the appeal was not incomplete
nor the liability of appellant affected by
the fact that it did not sign the appeal
bond.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1924.
E. j. Pyle, Appellee,


E. J. Pyle, Appellee,
VS.,
The Western Union Telegraph Company.
a corporation, Appellant.
Appeal from Finney County.
AFFIRMED.
Syllabus. BY the Court Johnston c. J.
In an action of forcible entry and de-
tainer wherein a judgment was entered
against appellant an appeal was taken
to the district court in which an appeal
bond was given. The appellant did not
sign the bond and the obligors bound
themselves in a limited sum to pay double
lie value of the use and occupation of the
property from the date of the bond until
the delivery of the property If judgment
should be rendered against appellant.
After judgment adverse to appellant had
been rendered appellee brought action
against appellant alone to recover dam
ages for the unlawful detention of the
property. Held, that the liability of APP
pellant resulted from the taking of an APP
peal and the judgment determining the
unlawful detention of the property, that
the action herein was not brought upon
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
| EGAI

such deeds was conceded. rendering it
unnecessary for the defendant to intro
iuce them in evidence and it was error
to bar him from all interest in the proper
ty by reason of his failure so to intro
duce them.
,. In such action certain minor remand
ermen were made parties and their in
that portion providing for a sale in case
partition could not be had no mention or
reserva ton was made of such interests
Held that such remaindermen not being CO.
tenants should not be affected by such
sale or partition and the decree should be
made free from ambiguity in this respect.
All the Justices concurr1ng.
true copy.
Attest: D. A. VALENTINE,
ISeaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE,
Clerk Supreme Court.
No. 1922.
Lucy A. Cain, ct al, Appellees

Lucy A. Cain. ct al, Appellees,
Western Union Telegraph Company, APP
Appeal from Labette County.
AFFIRMED.
Syllabus. BY the Court. Benson, J.
l. The rules of liability and damages
for failure to properly transmit and de-
liver a telegraph message, stated in Tele-
graph Co. Simpson, "a Kan. 800, 81 Pac.
$50, are followed.
ator for transmission in the following
form:
will you give twenty five dollars per
acre for farm; have been offered twenty
four; wire me if you will take that. VIII
hold till three o'clock
1t is held that the contents of the mes
sage impaired notice of the Importance
and nature of the transaction. and that
expected from failure to deliver it.
8 Evidence to prove that a sale of the
farm to the addressee would have been
made if the message had been delivered
without change, was admissible in
ton against the company to recover dam
ages for failure to so deliver it.
f. The proper delivery of the message
as written would have resulted in a sale.
the concluding sentence SO that it read:
Hold till thirtieth.'' The company is
therefore liable for consequential dam
ages.
5. The payment of an agents commits
sion reasonably necessary in effecting the
sale of the farm upon the previous offer
stated in the message, but which would
not have been payable if a sale had been
made to the addressee, whereby the net
amount received for the farm was dinin-
ished, may properly be considered as an
element of consequential damages
All the Justices concurr1ng-
A true copy.
Attest. D. A. VALENTINE,
[SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 17SS2.
J. o. Hockett, Appellee,

J. o. Hockett, Appellee,
W. L. Earl and iona North. Appellants
Appeal from Jewell County.
AFFIRMED.
Syllabus. By the Court. Benson. j:
l. Upon the question whether general
warranty deed was given and accepted as
security for a debt, or as an absolute
conveyance findings of jury upon con-
flicting evidence approved by the court
are final. unless they should be set aside
for erroneous rulings prejudiclally affect-
ing the substantial rights of the losing
party.
2 An action brought by the grantor IN
a deed of general warranty to have the
deed declared to be a mortgage and &c
redeem therefrom, is equitable in chaTac-
ter. and neither party is entitled to gen
eral verdict matter of right
g. An instruction that III answering
questions pertinent to the issues above re-
ferred to, the burden of proving the truth
of the allegations of the petition by the
greater weight of the evidence is upon the
plaintiff and that finding can not be
made in his favor unless established by
the preponderance of the evidence, if err
roneous at all, did not prejudicially AFFECT
the substantial rights of the defendants
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
(SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE,
Clerk Supreme Court.
No. 1855
James P. Holland, Appellant,


James Holland and Francis A. Holland
Appellees.
Appeal from Dickinson County.
REVERSED.
Syllabus. By the Court. Mason. J.
/. A son who has supported his father
for a number of years, under an agree
ment that he is to become at once the
owner of tract of land, and that the
legal title is to be vested in him at his
fathers death, by will or otherwise and
who in reliance thereon has improved the
property and performed services the value
of which not readily be estimated, is
entitled to an injunction against the eX
ecution by his father of a deed to some
one else.
,. Where in that situation the land Is
occupied by the and his wife as
homestead, the title thereto can not be
affected by an instrument signed by him,
to which she has not consented
All the Justices concurring.
A true copy
Attest: D. A VALENTINE,
CSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1871.


AL Delmore. Appellee,
VS..
The Kansas City Hardwood Flooring
Company, Appellant
Appeal from Wyandotte County.
First Division.
AFFIRMED.
Syllabus. By the Court. Smith, j.
L Where two employees. in factory.
are associated in operating a machine
therein and one complains to the master
that he is afraid to work with the other
and the master replies that the one COM
planned of is incompetent and careless and
that he will place him some work
where he cannot hurt the one complaining,
the one complaining may thereafter con-
tinue in the employment for reasonable
time without assuming the risk of injury
from the negligence of his fellow laborer.
2 In such case the master assumes liza
bility for injuries received by the one
who complained through the negligence of
the other.
8. The question whether the appellee was
guilty of contributory negligence was, un-
der the instructions, for the determination
of the Jury and there being no special
question submitted thereon, the general
verdict in favor of appellee theoretically
acquits him of such negligence.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE.
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE.
Clerk Supreme Court.
No. 1892.
Harold c. Short, Appellant,

No. 1872
Harold c. Short, Appellant,
Robert E. Davis, Appellee.
Appeal from Leavenworth County.
AFFIRMED.
Syllabus BY the Court. West, J.
In a commissioners district at the last
general election all the ballots had voting
squares placed to the right of the words
mo nomination" wherever they occurred
in the republican, democratic and socialist
columns. There We're in these columns 12O
voting squares, seven of which were OPP
posite the quoted words. This error was
made by the officer or officers preparing
and printing the ballots. number of
electors in voting, made cross-marks in
these squares enormously placed upon
the ballots Held, that in the absence of
any showing of fraud or fraudulent inten-
ton such ballots should be counted.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1870.
IS-.JU-
Rebecca L. Phillips. ct al, Appellees,

Rebecca L. Phillips, ct al, Appellees,
The Arkansas Valley Interurban Railway
Company, Appellant.
Appeal from Sedgwick County.
First Division.
REVERSED.
Syllabus. BY the Court Smith, j.
l. Where in a sale and purchase of land
a mortgage is taken to secure any part of
the purchase price and provision is made
in the mortgage FOR the plating of the
land addition to the town or city,
it is held that the mortgage thereby con-
SCENTS to such plating and that after such
plat is, in fact made and recorded, the
judgment of a court foreclosing such
mortgage does not vacate the plat espe-
cially where various portions of the tract,
described by reference to the plat are by
the decree excepted from the sale.
p Where it appears that in the making
of plat of addition to a city or town,
acknowledge the plat. this fact, of itself,
does not invalidate tie plat
8. The burden of showing that a street,
which appears to have been duly dedi-
Gated to the of the public, has been
vacated by operation CT law rests upon
the party alleging such vacation
4. street car company is not response
BILE in damages to tbs owners of adjacent
lots for the laying out of its tracks and
operation of its railway in the street
All the Justices concurring.
A true copy.
Attest: D. y VALENTINE,
(Seal1 Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11

No. 1920.
Cora B. Steffen, Admr'x, ETC., Appellant.
A T & S. F. Ry Co. etc, Appellee.
Appeal from Sedgwick County.
Div. No. ,.
AFFIRMED.
Syllabus BY the Court Porter. j.
The special findings were that the de-
ceased, who was killed at a railway cross
ing was guilty of contributory negligence.
and that the only negligence of the de-
PENDANT railway company was in exceed
ing the speed limit by operating its cars
over a street crossing at miles an hour.
There was no evidence or claim of wilful-
ness or wantonness on the part of the de-
PENDANT and therefore the trial court
properly set aside the general verdict and
gave Judgment for the defendant on the
special findings.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
TSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE,
Clerk Supreme Court
No. 1921.
T. c. Roberts, Appellee,


E. G. Kin1ey, ct al, Appellants
Appeal from Shawnee County,
Second Division.)
AFFIRMED.
Syllabus. BY the Court Johnston c. D.
l. A garage keeper to whom an autonlo-
bile is entrusted for repairs or storage is
a bailee for hire, and while not an in
surer he is bound to use reasonab BILE care
to protect and preserve it and is liable to
owner for any loss resulting from his
negligent acts omissions and also for
those of his agents employees while
acting within the scope of their employ
ment.
2. An employee in charge of a garage
in which automobile had been left
for repairs took the automobile out after
it had been repaired for the purpose of test
ing it and also to carry home a. customer of
the garage who had brought his automobile
there for repairs which the garage keeper
could not make on that day, and while
out on this trip the automobile was
negligently wrecked. While the trip to
the home of the customer was longer
than was necessary in order to try out the
automobile the employee can not be deem
ed to have been acting outside the scope
of his employment while he was out upon
this trip, and the garage keeper is there
fore liable for the negligent wrecking
of the automobile.
All the Justices concurring.
true copy.
Attest D. A. VALENTINE,
CSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11

No. 1921.
The Monarch Portland Cement Company,
Appellant.
VS..
Allen Washburn, Appellee.
Appeal from Kingman County.
REVERSED.
No. 1926.
The Monarch Portland Cement Company,
Appellant,
Allen washburn and The Cunningham
State Bank, Appellee.
Appeal from kingman County.
REVERSED.
Syllabus By the Court. Benson, j
1. A petition by a vendor of real estate
for specific performance of a contract of
sale is examined and held to state a cause
of action.
that a check for $4,000, as earnest money,
bank with the contract leaving a balance
of SO, $1,000 to be paid and the party of the
second part agreed to pay cash on deliv-
cry of deed and abstract The contract
signed by an agent was to become effec-
tive only on approval of his principal
This approval was given few days after
the deposit and thereupon a demand was
made on the bank for the check, which
was refused. The check having been
given as earnest money was payable when
the contract was approved, and a petition
for damages against the bank for refusal
to deliver it stated cause of action.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1879.
Julia kjellandeT, Appellant,

No. 1So7g.
Julia kjellander, Appellant,
Oscar HIGHLANDER, Appellee.
Appeal from Labette County. Motion to
strike applications for allowances of
temporary alfmony and attorneys fees
and for custody of child, Denied.
Syllabus f;y The Cour; Johr~san. = I
l. grant OF appellate jurisdiction i'm
plies that there is included in it the power
necessary to its effective exercise and to
make all orders that will preserve the
subject of the action and give effect to
the final determination of the appeal
2 In the exercise of its appellate juris-
dlction the supreme court has the power
to allow temporary a1imony to party
pending an appeal in an action of divorce
and to order the payment of attorneys
fees or suit money necessary to a prose-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1928.
]. P. Weigand, Appellee.

No. 1S2Z3.
]. p. Weigand, Appellee,
VS..
r. F. Knight, ct al, Appellants.
Appeal from Sedgwick County.
AFFIRMED.
SYLLABUS BY the Court West. J.
When an owner of real estate has listed
it with an agent who becomes the proxi-
mate, primary and procuring cause of a
sale, a commission is thereby earned, and
when there is conflict of evidence as to
whether such sale was thus procured or
by the owner after negotiations put on
foot by such agent were broken off, and
the jury find in the agents favor and
such finding is supported by competent
testimony and approved by the trial court
1t will not be disturbed.
All the Justices concurring.
A true copy.
At est: D. A. VALENTINE,
CSeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11

Nos. 1925 1927.
Joe G. Atkins & Thompson H. Bedford
Appellants,
R. F. Holmes & L. r. Holmes, Appellees.
Appeal from Chase County.
AFFIRMED.
Syllabus. BY the Court. Burch, J.
l. The contract between the plaintiffs
and the defendants provided for an ex-
plaintiffs consisting of real estate in Mis-
souri,, and that belonging to the defend
property in Kansas. The personal prop
erty was delivered to the plaintiffs. and
the deed to the Kansas land was placed
in escrow until the deed to the Missouri
land should reach the depositary when
both were to be delivered. The defend
ants then undertook to rescind- They
took possession of the personal property,
demanded and received their deed of the
depos1tary, and when the plaintiffs deed
was Immediately returned to them The
plaintiffs brought suit for the specific per-
formance of the unconsummated contract
and with their pleading rendered deed of
the Missouri land The defendants asked
for rescission on the ground of fraud and
for the cancellation of the contract Held:
jury trial.
b. Tender of deed of the Missouri
land by the defendants to the plaintiffs
was not required before the defendants
answered praying for rescission, and such
deed was not necessary in order to re-
store the plaintiffs to the position which
they occupied before the contract was
made.
.. The plaintiffs also brought an indie
pendent action of replevin for the per-
sonal property in which a jury was
called, but it was consolidated for trial
with the specific performance case The
jury returned findings of fact and gen
eral verdict for the plaintiffs The court
made findings of fact in favor of the de-
PENDANTS, set aside the findings and YER
dict of the jury, and rendered judgment
for the defendants. Held, the consolida-
ton of the two actions for trial was
proper, and the court was authorized to
make a final determination of the issues
in both cases itself, notwithstanding the
conduct of the jury.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE.
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 1874.
John F. Jaeger, Plaintiff,
Charles w. Green. as Mayor of the City
of Kansas City, Kansas, ct al,
Defendants.


of Kansas City, Kansas, ct al,
Defendants.
Original Proceeding in Mandamus.
MOTION TO QCASH OVERRULED.
Sylla bus by the Court Burch, J.
!. A field man of the department of
health of the city of Kansas City is not
an officer of the city but merely the hold
er of a subordinate position, and conse-
quently his employment does not termi-
nate with the term OF office of the board
of commissioners appointing him under
section IS of chapter ia of the laws of
1907.
2 The civil service act claws 1909, CHI.
"A, sec -. governs appointments to the
position of field man in the department
of health of the city of Kansas City, and
that act withdraws civil service ap-
pointees from the operation of section 80
chapter ia, Laws 1901 which permits the
board of commissioners of the city to re-
move the incumbent of any office or en-
ployment, at discretion. with or without
cause.
g. Since the position of field man in the
health department is not an office, section
of article Is of the constitution, which
forbids the creation of any office the term
of which is longer than four years, does
not govern its tenure.
All of the Justices concurring.
A true copy.
Attest n. a. VALENTINE,
CSeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE e.
Clerk Supreme Court
No. 1924.

No. 1922
J. H. Nesbitt, ct al, Appellees,
Mary Chesebro, ct al. Appellants.
Appeal from Logan County.
MODIFIED.
Syllabus BY the Court. Smith j.
l. A fair Interpretation of the contract
of sale in this case is that the purchasers
assumed payment of the interest on the
Seaton mortgage only from the date of
the contract
?. Where journal entry is placed of
record which purports to be the record of
a judgment that was in fact never rem
dered and the party, appearing thereby
to the judgment debtor, files in the court,
to which the record pertains, a motion to
eXpunge the false record, which motion is
resisted by the other party but is sus-
tanned. it is not within the discretion Of
the court to tax the costs of the motion to
the prevailing party.
3. An answer and cross petition in
which an answering defendant states
certain sum of money and in which an
swer is prayer that his lien may be pre-
served and for such other relief as IN
equity he may be entitled to, is sufficient
if found to be true, to entitle him to such
Judgment as the facts stated warrant al
though there is no prayer for a money
judgment.
4, Where a written contract is executed
for the sale of a tract of land and num-
Der of articles of personal property at
aggregate price and payments are made
thereon, it is not error, in an action to
foreclose the vendors lien, for the court
to award a lien on the land for the I'M
paid balance of the purchase price, pro-
vided there is any provision in the con-
tract from which the court may fairly in
fer that the amount paid is equal to or
exceeds the value of the personal prop
erty as contemplated by the parties when
making the contract.
.. The method of disposng at judicial
sale of tract of land embracing many
quarter sections is within the judicial dis
erection of the trial court; and where by
the terms of the decree two unpaid liens
VIII remain on the entire tract after the
sale, it is not an abuse of such discretion
to order the tract sold as a whole instead
of in parcels.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
tSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
No. 17S53.
j. c. Elvin, Appellee,


j. c. Elvin, Appellee,
B. F. Blubaugh, Appellant
Appeal from Harper County.
AFFIRMED.
Syllabus. By the Court. Johnston. c. ].
l. AS a general rule a new trial will
not be granted in order that newly dis
covered evidence of an impeaching char
acter may be produced, but there are ex
ceptions to the rule and where the newly
discovered evidence, although contradic
tory to that offered on the trial, satisfies
the court that material issue was
wrongly decided it may. in order to meet
the ends of justice, grant a new trial
>. Where a trial court, in the exercise
of its discretion grants new trial an ap-
pellate court is reluctant to interfere with
the order, and if granted upon the ground
of newly discovered evidence such evil
dence is literally interpreted with the
view of sustaining the ruling.
All the Justices concurring.
A true copy
Attest: D. A. VALENTINE.
ESeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
EGAL

refer to the amount due on the basis of
the fixed rate. and was so understood by
the buyer, and that the stipulation re-
garding the assets of the company had
reference to controversy as to whether
the buyer or seller should be entitled to
dividends already earned but not declared
All the Justices concurring.
true copy.
Attest: d. a VALENTINE,
1SeaO Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-06-11
D. A. VALENTINE,
Clerk Supreme Court
No 177qa



In Re Application to Disbar E. c. Wilcox.
Original Disbarment Proceedings.
JUDGMENT AGAINST ACCUSED.
Syllabus. By the Court. Porter. J.
The evidence in original proceedings
Tor d1Sbarment examined and held insult
ficient to sustain certain of the charges
IN the accusation, but sufficient to sustain
Two charges of misconduct, one of which
II is held, relates to the administration of
justice and seriously affects the profess
sional and personal integrity of the ac-
cused.
.. While original proceeding brought.
In this court to disbar an attorney was
pending and undetermined, an information
was filed against the attorney in a dis
Tlct court charging him with criminal
libel. On a trial of the criminal action he
was acquitted Thereafter a supplemental
accusation was filed in this court setting
up as an additional ground for his disbar-
ment that he was guilty of the criminal
libel of which he had been acquitted and
Tat the object and purpose of the libel
was to induce the libellee to use his in
rluence to have the diSbarment proceed
Ing dismissed. The court finds that the
evidence sustainS the supplemental &C
cusation, that the purpose of libel was to
defeat the administration of justice and
that the charge seriously affects the pro-
fessional and personal integrity of the ac-
cused for which reasons judgment of dis
barment is ordered.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE
lSeaLJ Clerk Supreme Court