The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-09

finally upon a petition for a new trial
| based on newly discovered evidence
| All of the Justices concurring
Attest: d. A. VALENTINE.
| ISeaL1 Clerk Supreme Court
| George G. Griffin, and Mary L. Griffin,
Appellees,
The Fredonia Brick Company. Appellant.
Appeal from Wilson County.
AFFIRMED.
Syllabus. By the Court. Benson, J.
! l. The law of this case as declared in a
| former appeal is followed
2. The evidence is reviewed and it is
held that questions of fact relating to the
charges of negligence were properly sub
g. Photographs purporting to be of the
bank in a shale pit where the injury oc-
were properly admitted in evidence.
| 4. Where a youth II years of age physi-
cally strong, who had worked in his faith
ers store and for others. earning fair
| wages. is killed through negligence, an
| instruction that in awarding damages, the
| jurv may, if they find that he had pre-
| Viously contributed anything to his par
| ents, consider what he might reasonably
| be expected to contribute to them after
arriving at the age of twenty-one years,
| is not erroneous.
| All the Justices concurring.
A true copy.
Attest Attest D. A, VALENTINE.
ISeaL1 Clerk Supreme Court
The Young Mems Christian Association,
of Salina, Kansas, ct al. Appellees,
The United States Fidelity and Guaranty
Company. Appellant.
Appeal from Saline County.
! REVERSED.
| Syllabus BY the Court Porter J.
l. A contract for the erection of build
ing contained a clause. which after re-
citing the whole sum to be paid for work
and materials, provided
that such sum shall be paid by the
owners to the contractors in current funds
and only upon the certificate of the
architects, follows: On before the
! first of every month the architects shall
make written estimates of all work and
| material furnished on the contract dur
ing the preceding thirty days and eighty
per cent of same shall be paid the con-
| tractors by the owners when presented.
| The final payment shall be made within
ten days after the completion of the work
included in this contract and all pyaments
shall be due when certificates for the
same are issued" Held that ''the final
payment referred to the twenty per
cent of the amount of the estimates after
| the eighty per cent had been paid.
| 2. A bond of indemnity was executed
! by a surety company against pecuniary
! tractor to comply with the terms of a
| building contract. The bond referred to
| that no liability should attach to the
surety unless the owner should give notice
! to and obtain the consent of the surety
before making the final payment pro-
vided for in the contract. Held, that the
! failure to retain the required percentage
| discharged the surety to the extent of the
| premature payments.
! Mason, j., Smith, ]. and West, J., con-
curing.
Johnston, c. j., Burch, J., and Benson,
j. dissenting.
| true copy.
Attest: u. \. VALENTINE,
! tSeal.l Clerk Supreme Court.
| No. 1898.
| Charles NJ. Wilson, ct al, Appellees,
The German-American Insurance Com
pany, Appellant.
Appeal from Shawnee County.
First Division.)
AFFIRMED.
| Syllabus. BY the Court. Johnston. c.. }.
! The owner of property contracted with
an agent representing several Insurance
companies to insure property for a GER
tain amount but did not designate the
particular company in which the insur-
ance should be taken, and at the same
time he paid the premium and arranged
with the agent to hold the policy and
thereafter to keep the property insured
A policy was issued in a company which
agent then placed the insurance in an
other company represented by him and
that policy, too, was cancelled. He then
placed the insurance in the defendant
company and began to write out a police
but interruption prevented its completion
| at the time and before it was finished
| the property was destroyed by fire. Held.
| That the steps taken by the author
zed agent of the company constituted a
defendant
?. That under the contract as pleaded
the failure to furnish proofs of loss did
not operate as a forfeiture;
| B. That the action of the agent in agree
ing with the property owner to hold the
policy and keep his property insured was
not repugnant to the duty of the agent to
/ the defendant nor did it affect the
validity of the contract of insurance.
/ All the Justices concurring.
! A true copy.
Attest; d. A. VALENTINE.
ISeaLl Clerk Supreme Court.
/ No. 1888.
| ]. E. Weeks, Appellee
: The Seymour Packing COMPANY a Cor
poration, Appellant.
Appeal from Shawnee County.
Second Division.
| REVERSED
| Syllabus. BY the Court Smith, J.
Where it clearly appears. in an action
tl,nt -. -.