davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

No. Is, 673.
IN RE Chester Mooney, Petitioner.
Original Proceeding in Habeas Corpus.
WRIT DENIED.
Syllabus. By the Court Mason, J.
l. there the verdict in a criminal case
is ambiguous, reference may be had for
its Interpretation to the instructions and
to other forms of verdict prepared by the
trial judge, which after submission to the
jury were filed with the clerk; and where
In view of the light so afforded it is clear
that the verdict was intended as one of
guilty, it will be so treated.
, In prosecution upon an information
in one count, charging burglary and
larceny, finding by the jury that the
defendant is guilty of burglary and
larceny; and not guilty of burglary, and
not guilty of larceny, is to be regarded as
a verdict of conviction, where the instruc-
tons stated that three offenses were
charged namely: ID burglary and larceny,
% burglary without larceny, and 90
larceny without burglary. and forms of
verdict were submitted in which a finding
of guilty upon each of the offenses so
designated was accompanied by a finding
OF not guilty upon the other two, no other
forms having been submitted excepting
one of not guilty.
Johnston, c. J., Burch, J., Porter, j.,
and Benson, J., concurring
Smith. j. and West, J., dissenting
true copy.
Attest: D A VALENTINE
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1879.
F. NJ. Kirkham, Appellee,

City of Kansas City, Kansas, Appellant.
Appeal from Wyandotte County.
Third Division.
AFFIRMED.
Syllabus. By the Court. West ].
The testimony fairly tended to show: A
sidewalk along the west side of Seven
teenth street between Quindaro Boulevard
and Yecker avenue was laid twelve to
eighteen inches lower than the surface of
the ground on either side in order to bring
1t to the established grade. parking ex-
tended five feet west to the street line.
The walk had been in this condition for
several weeks. A tent meeting had been
in progress a short distance west OF
Seventeenth street for nine days or more
attended daily by from fifteen to seventy
five or hundred persons. The weeds
had been cut or topped, thus marking a
route by which these persons went from
the tent to the sidewalk. While returning
along this route with others from the
services on the evening in question
the plaintiffs wife fell upon the walk
where such route entered the same from
the parking on the west thereof and was
injured No lights, barriers or other
means had been provided by the city to
protect against accident or injury at the
place mentioned. Held. sufficient to go to
me jury and to support a general verdict
in favor of the plaintiff
All the justices concurring
A true copy.
ATTEST: D. A VALENTINE
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

TEN ROOM modern residence, 423 Mon
roe; big bargain. Inquire 40S and 40 E.
4th. ST-W.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
LEGAL.

-------------- No. Is, Ill.
Southern Pacific Company, a Corporation.
Appellant
vs.
F. D. Larabee and F. S. Larabee. as part
ners doing business under the firm
name and style of The Larabee Flour
Mills Company, Appellees.
Appeal from Reno County.
REVERSED.
Syllabus. By the Court Mason, J.
Where goods are delivered to a carrier
consigned to a point beyond its own line,
no special contract being made, and are
delivered to the consignor at the termina
ton named, the delivering carrier may
maintain an action against him for the
total freight charges, Notwithstanding his
objection that it is not the real party in
interest.
All the Justices concurring.
A true COPY.
Attest: D. A. VALENTINE.
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

No. 1880.
H. G. Dyer, Appellant
VS..
Ada NJ. Marriott. ct al, Appellees,
Appeal from Greeley County.
REVERSED.
Syllabus. BY the Court West. J.
L. Recitals of heirship in a recent deed
are not binding against strangers to the
instrument.
,. a defendant in a foreclosure suit
who claims title and seeks to set aside
a tax deed and conveyances Hereunder
and GUST the holder from possession, must
show some title to or interest in the land
before being entitled to such relief
All the Justices concurring-
A true copy.
Attest d. A VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

No. 1887.
NJ. ]. Hurwitz, Appellee,
VS..
Lester Davis and Theodore Davis, part
ners as Davis & Johnson, and o. J.
McCalla, Appellants.
Appeal from Shawnee County.
First Division.
Syllabus. BY the Court West J.
The rule that a general verdict and spe-
cial findings consistent Herewith and
with one another supported by COM
petent evidence, must stand-foIlowed.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
lSeaII Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
EGAI
No. 1852.
Thomas Dever, Appellant,

Thomas Dever, Appellant
John Montgomery and H. E. Montgom-
cry, Appe11ees.
Appeal from Geary County.
AFFIRMED.
Syllabus. BY the Court Mason T.
1t is not Hbelous per Sc to publish of the
mayor of a city that he had said, re-
ferring to a matter concerning which the
law gave him discretion to act as he saw
fit, that he was running the town, and
the council and people had nothing to do
a bout 1t.
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1857.
s. J. Schneider, Appellee,

H.
Appeal from Ford County.
AFFIRMED.
Syllabus. BY the Court Benson, ].
l. In a farming and stock raising bust
ness, carried on jointly for six years by
the owner and the occupant of a farm,
annual settlements were made after the
first year and balances agreed upon. After
accounting and a balance found due to
the occupant was agreed upon. A check
was given by the owner in part payment
of this balance with a promise to give
notes for the remainder. At the same
time a bill of sale was given by the &C.
cupant for his interest in the joint prop
erty. After all this had been done the
owner demanded a credit for cream sold
from the place. At two different annual
settlements he had complained that too
much cream was being sold but had
never insisted upon any credit therefor
There no charge or proof OF any
mistake or concealment in respect to the
cream. Under the contract recited in the
opinion, and in the circumstances stated,
the court did not err in refusing to sub
NIT this claim for credit to the jury.
2. The p1eadingS and evidence relating
to other items of credit claimed by the
defendant are examined and the action
of the district court in refusing to submit
such claims to the jury approved.
8. Where in settlement of extensive bus
mess transactions parties have deliberate
ly accounted and in good faith agreed
upon a balance intended to be final, the
result should be accepted by court I'M
less for some legally sufficient reason
substantial justice requires that the set
Element should be opened or set aside.
An the Justices concurring-
Attest: d. A. VALENTINE.
TSeaI.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
EGAL-
No. 1919.
U. s. Burton, Appellee,

No. 1878.
U. S. Burton, Appellee,
VS..
The Wichita Railroad & Light COMPANY
Appellant.
Appeal from Sedgwick County.
Division No 2.
REVERSED
Syllabus BY the Court. Porter. j.
Where the only inference to be drawn
from the undisputed facts is that plain
tln's injuries were caused by his own act
In stepping from moving street car and
that the defendant company was not gull
ty of any act of negligence it is error
for the court to set aside a directed YER
dict In favor OF defendant, and to grant
the plaintiff a new trial.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE
ISeaL1 Clerk Supreme Court. =
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

FOR SALE-Cottage, 6 rooms, piec,
bath; fine cellar. 1908 Jackson.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

No. 1875.
w. d. Green, Appellant,
1. Fist, Appellee.
Appeal from jackson County.
REVERSED.
Syllabus. BY the Court Porter, ].
Following Betz V. Land Co. as Kan.
As, % Pac. 1867 it is held, that when an
agent for the sale or exchange of real
estate finds a purchaser able and willing
to take the land at the agreed terms or
to enter into a contract which is salts
factory to the principal, he has earned
his commission.
All of the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
GREENHOUSE SALE

I will sell all plants cheap for 10 DAYS.
Geraniums SC; other plants accordingly
Phone 1907 NJ. 500 East 18th st
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1912.
Frank Hauserman, Appellee,


Frank Hauserman, Appellee,
VS..
The Board of County Commissioners NJ
Clay County, Kansas, Appellant
Appeal from Clay County
AFFIRMED.
Syllah BY the Court Mason
l. When statute is revised soma y,arfs
being omitted, the omitted parts are not
readily to be supplied by construction hnt
nulled. % an
2 The explicit repeal of the precise nor
t1on of statute in which a power is er
pressIy conferred, ordinarily forbids the
continued existence OF the power being
imp1ed from the retention of language
incidentally referring thereto
3 Where in amending the section Of tbo
statute relating to the award of damaeeS
occasioned by the laying out of a high
way. sentence was omitted, in whic5, a
power to revise the allowance r1afe 10
viewers had been given in distinct ami
express terms to the county commission
ers, the omission must be regarded as IL
dicating purpose to deprive the corr
missioners of such power. notwithstandiner
part of the section which REMAND rs
changed allowing an appeal to the district
court on the question of the amoTnt -
damages, describes such appeal as ona
taken from the decision of the conmjse
sioners.
Burch, j., Smith, j.. Porter. j.. concur-
ring.
Johnston. c. J., Benson, J., and West
J., dissenting. Vs.
A true copy.
Attest: D. A. VALENTINE
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1902.
Mabel Hanna, Appellee,


The Chicago. Rock Island and Pacific
Railway Company, Appellant.
Appeal from Shawnee County.
Second Division.
MODIFIED.
Syllabus. BY the Court. Smith J.
l. The principles of negligence and of
liability therefor are the same whether
the negligence is a breach of duty i'm
piled by law in the absence of all con-
tract, or breach of duty arising out of a
contractual relation; the difference being
only as to the extent of liability. Where
the duty arises out of contract such dam
ages can only be recovered for a breach
of the contract as, under all the circum-
stances, could, at the time of the making
of the contract, have been reasonably
anticipated from a breach thereof.
2. A corporation, organized for the pur-
pose only of doing a general railroad
business in the carriage of persons and
property and not to conduct a telegraph
business but which maintains telegraph
line for its own convenience in conduct
ing and expediting its business, when it
receives a telegram to be transmitted
over it's telegraph line and receives a
valuable benefit therefrom, cannot avail
itself of the defense of ultra wires when
the contract has been in good faith fully
performed by the other party.
All the justices concurring.
A true copy.
Attest: D. A VALENTINE.
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
D. A. VALENTINE,
Clerk Supreme Court.

No. 1S.154
Kate A. Chopper and Joseph Cooper
Appellees.
L. w. Goodrich, Iva S. Goodrich and G.
c. Miller. Appellants
Appeal from Washington County
AFFIRMED.
Syllabus. B. the Court. Mason, J.
1. Where a deed to property occupied
as a homestead is made by the spouse in
whom the legal title is vested, the other
not consenting, a conveyance made by
the grantee while such occupancy con-
tinues will be nullity, even If made for
value to one having no actual notice of
the homestead character of the property.
.. Where wife signs a deed to a
homestead and leaves 1t with the grantee,
who agrees that it is not to become eff
fective unless signed also by her husband,
but who in violation of the agreement
records it. the fact that the husband
well as the wife is named as one of the
grantors is sufficient to put a prospective
buyer upon inquiry, and charge him with
notice of such facts with respect to the
execution of the deed could have been
learned by reasona BILE investigation
All of the Justices concurriug.
A true copy.
Attest: D. A VALENTINE.
(SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
D. A. VALENTINE,
Clerk Supreme Court.
No 1882.
H. L. Brown & Son, Appellants,

H. L. Brown & Son, Appellants,
The Estate of c. F'unck, Appellee.
Appeal from Lyon County
AFFIRMED.
Syllabus. By the Court. Johnston. C. }.
1. In the absence of instructions to the
contrary a factor, or commission mer-
chant, to whom goods are consigned may
sell them for cash or on a reasonable
credit, but if the sale is made on credit
he must exercise reasonable diligence to
ascertain the solvency and pecuniary re-
Sponsibility of the purchaser from the
usual and available sources of informa ton
and his failure to exercise such diligence
will render him liable for the resulting
loss.
2. The testimony in the case is held to
be sufficient to support the finding that
the factor did not use due diligence In
the transaction herein involved.
8. Ordinarily if a consignor of goods al
leges negligence or misconduct of a factor
the burden lies on the consignor to prove
it, but when a prima facie case of negli-
gence of the factor is established the bur
den is on the latter to show facts reliev-
ing him from liability.
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, 1913-05-13

No. is. Isl.
The Abilene State Bank, a corporation,
Appellant,
VS.
James Strachan, Appellee.
Appeal from Dickinson County.
REVERSED.
Syllabus. BY the Court. Johnston, c. J.
l. To effect an assignment and DISPOSE
ton of shares of capital stock in a bank
so as to release the assignor from the
superadded liability of shareholders fixed
by law he must procure a transfer OF
the stock on the books of the bank in
accordance with the provisions of the
banking act.
3 Such a transfer is essential to a re-
lease from liability of a shareholder who
sells and assigns his stock to the bank
itself in payment of a previously con-
tracted debt owing by him to the bank.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
CSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
d. A. VALENTINE.
Clerk Supreme Court
No. 1856

No. 1855.
Linnie NJ. Cunningham, Appellee,
John T. Patterson and w. E. Middleton,
as partners, doing business under the
firm name of The Patterson Middleton
Construction Company, and E. d. Shuck,
Appellants.
Appeal from Wyandotte County.
Division No. 3.
AFFIRMED.
Syllabus By the Court Mason. J..
A petition which, alleges the death of
the plaintiffs husband to have been
caused in another state by the negligence
of the defendant, but fails to add that a
statute of that state authorizes recovery
under the facts pleaded, may be amended
by setting out the existence of such a
statute, even after the expiration of the
time within which an action hereunder
is allowed to be brought.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1920.
]. F. Harris, Appellant,


j. F. Harris, Appellant,
VS..
ne Board of County Commissioners of
Edwards County, ct al, AppelIees.
Appeal from Edwards County.
AFFIRMED.
syllabus. BY the Court johnston ~ I
Within the ruling in Motzner " Began.
o. Kan -. -Pac: -, the. contracts
ior the conveyance of land involved here
in are held to be subject to taxation as
the property of the seller.
All the Justices concurrfng
A true copy.
Attest: D. A VALENTINE
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
D. A. VALENTINE.
Clerk Supreme Court
No. is, 1877.
The International Filter Co., Appellant,
VS..

The International Filter Co., Appellant,
Cox Bottling Co, Appellee.
Appeal from Sedgwick County.
Division No. 2
REVERSED
Syllabus. BY the Court Porter. J.
L. Where the appellant claims that
upon the aScertained and undiSputed facts
the judgment is erroneous as a matter of
law, motion for new trial is unneces-
sary.
,. Where, in such a case there are no
special findings, the specifications of
error are sufficient if they set forth the
particular questions of law which appel
liant claims were involved in the general
judgment and were decided enormously.
3. A contract for the sale of a water
filter evidenced by the correspondence of
the parties, it is held, was not for a sale
upon an implied warranty with reason
able time for the purchaser to test the
machine; but on the contrary, a sale upon
approval with the understanding that the
was to be returned within 35 days
if it proved unsatisfactory; and further
held. that because of failure to return it
within the agreed time, the purchaser be-
came liable for the price.
All the Justices concurr1ng.
A true copy.
Attest: D. A. VALENTINE,
tSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1875.
State of Kansas. Appellee,

NO. $3.50.
State of Kansas. Appellee,
Geo. Woodland, Appellant.
Appeal from Montgomery County.
REVERSED.
Syllabus. By the Court. Smith. j.
In a hearing under the provisions of Sec
ton 1891 of the General Statutes OF 1909
to determine what disposition should be
made of the intoxicating liquors or other
property. seized under a warrant issued
in a criminal action for main tanning
common nuisance in violation of the pro-
hfbitory liquor law, if the court shall find
that any portion of all of such liquors or
property were not used in maintaining a
common nuisance in the county where the
action is brought, it is the duty of the court
to order the liquors or property not so
used to be returned to the place from
which they were taken or delivered to the
person establishing his claim to the same
as provided in Section 1892 of the General
statutes of 1909.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
LSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
WANTED-AGENTS.

FIRE INSURANCE AGENTS wanted in
every locality. Liberal contract and ex-
elusive territory to business producers.
Manager, 402 Lggett Bldg, ST. Louis, Mo.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
No. 1870.

No. 1880
Adam A. Haas, Appellee,
VS..
The Wichita Railroad & Light Company,
Appellant.
Appeal from Sedgwick County.
Division /.
AFFIRMED.
Syllabus. By the Court. Benson. J
1. A street car company may be held
responsible for negligence in stopping its
car and inviting passengers to enter it at
place made dangerous by temporary
repairs upon the street, although the work
pany has no control over 1t.
z This responsibility arises from its
duty to refrain from exposing passengers
to dangers which could have been avoided
by the exercise of proper care; and prop
er care may require the company in such
situation to stop it's car at convenient
point outside the limits of danger, or to
provide step, furnish assistance, or 9TH
erwise provide for the safety of passen-
gers. In the circumstances of this case it
was question for the jury whether such
precautions to avoid injuries were reason
ably necessary, and whether the company
had exercised proper care.
8. Upon the facts of this case the
question of contributory negligence was
properly submitted to the jury.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seall Clerk Supreme Court.
No. 1882.
Joseph F. Naugle and Margaret I. Naugle,
George w. Naugle and Mary Ann Naugle,
Appellees.
Appeal from Bourbon County.
AFFIRMED.
Syllabus. By the Court. West, J.
/. A petition which alleges verbal
agreement to sell real estate, sacrifice
of plaintiffs land for $3.50 less than it
was worth in order to comply with such
agreement and possession and permanent
Improvement by the plaintiffs, but ex-
pressly alleges or asks no dana ges-held
which performance or, in default thereof,
damages may be recovered.
2. After being defeated in such suit in
their attempt to compel specific perform
ance the plaintiffs sued the defendants for |
damages. Held, that such action was |
barred by the determination of the former |
suit.
8. While in fact the question of dam |
ages not litigated or determined in |
the former suit, still as such relief was |
possible and inheredin the cause of aC- |
ton therein set up, the same cause of |
action cannot be again used to obtain |
the relief which might have been had in |
such prior proceeding.
4. The same reason which precludes |
splitting a cause of action forbids its re- /
peated use to obtain different kinds of re- |
lief which could have been had in the |
first action.
). While a demurrer to a portion of an |
answer searches the record and may be |
as to the petition, still when the
latter, though in general terms, sets forth
a prirna facie cause of action and has
been met by answer instead of demurrer,
It will be deemed sufficient.
All the justices concurring.
= true COPY.
Attest: D. A. VALENTINE,
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

No. Is, 152.
John S. Tough, Appellee,
Citizens State Bank, Appellant
Appeal from Ellis County
REVERSED.
Syllabus. By the Court Burch. ]
Under the facts stated in the opinion it
is held that bank, which, with permits
sion from the depositor, credited a deposit
upon his note, was not charged with
notice the money was derived from the
sale of a third persons property made by
the depositor agent.
All the Justices concurrinE.
A true copy.
Attest:
tSeaLl D. A. VALENTINE
Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
LEGAL.
SUPREME COURT SYLLAB|,

published in The Topeka State Journal
May 13, 1881
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
MANIFESTATIONS.

BY PRACTICAL NURSE, rates S1.O0 a |
day Call or address 500 West 18th st.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
WANTED-FEMALE HELP.

ANY intelligent person may earn steady
income corresponding for newspapers.
Experience unnecessary. Address Press
ID. c.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
DRESSMAKERS.

PRACTICAL AND GRADUATE dress
maker. Mrs. Lettie Gier, 137 Emmett St
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

A GOOD hustling business getter for road
work; competition. Requires invest
ment of 81 900 to 81, 500. Salary 500 to start
and expenses; this investment will earn
90 per cent Hustler. care Daily Journal.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
BUSINESS CHANCES.

WANTED-A keen business man that can
invest 5000 in Hquidating manufactur-
ing business. Will double the money
within one year. Good security to protect
the investment. AL Daily Journal.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
FOR RENT-ROOMS,

FOR RENT-NiceIy furnished rom, n, ,,,oz
ern house. 723 Tyler 40 -4-0u
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

FURNISHED housekeeping rooms and
West 9Th. ~ Aoe' 'V'
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13

fhONI furnished housekeeping or lodg-
ing room $780, one $500 week 412 West
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-05-13
WANTED-MALE HELP.

PHONE 41SS for help, and call at 532 Kan
sas ave. for employment.