davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

No. 1909.
NJ. NJ. Mason, Appellant,
Riley Sanders, J. G. Workman Garnishee,
& W. H. Brooks, Intervenor, Appellee.
Appeal from Lyon County.
AFFIRMED.
Syllabus. BY the Court. Benson. J.
Upon a sale of personal property the
purchaser agreed with the vendor to pay
the consideration to third party who
claimed a lien upon it under a chattel
mortgage. After the property was deliv-
cred the purchaser was garnished by an
other creditor of the vendor. The mort
gage was not in fact a lien upon the prop
erty but the mortgage and mortgagor
having treated it as lien and by mutual
agreement provided that the proceeds
should be applied upon the mortgage
debt they will be so applied.
An the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
TSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
LEGAI

were at the time the conveyance was
made and continued to be dependant
upon him for subsistence and support
6. Upon the facts and circumstances
shown in the evidence in the present case
it is held that a constructive trust was
not established, and that the evidence was
not sufficient to overcome the presump-
ton that certain conveyances to the wife
were intended by the husband as gifts to
her, and therefore that the demurrer to
the evidence was rightly sustained.
All of the Justices concurr1ng.
A true copy.
Attest.
ISeal1 D. A. VALENTINE,
clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1869.
II. r. Hubbard, Appellant,


VS..
The Spring River Power Co. A Cornora
ton, Appellee.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court Porter I
l. Where lands are subject to overflow
by reason of the erection and maintenance
or a dam permanent in character the
owner who has not been compensated for
the appropriation of his lands, may, if
he see fit. maintain an action to recover
all damages occasioned to the lands pres
ent and prospective, and such cause of
action accrues at the time of the appro-
priation.
2 The owner of lands adjacent to a
oam erected as a permanent structure
sued to recover damages to the lands by
reason of their being subject to overflow
The answer set up the record and pro-
ceedings in a former action between the
same parties wherein the plaintiff recov-
cred damages to the land caused by the
erection and maintenance of the dam
Held, that the facts pleaded constitute
good defense of res judicata and that
a demurrer to the answer was rightly
overruled.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
lSeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. IS, III.
John N. Maffet, Appellee,


Appeal from Kingman County.
AFFIRMED.
Syllabus BY the Court. Burch. j.
Honestly believing that a tract of land
contained 272 acres, vendor SO repre-
scented to his vendee, who purchased re-
lying upon the representation. AS a part
of the same oral negotiations, price of
S45 per acre was agreed upon and the total
consideration was arrived at by multiply
ing the price by the number of acres.
written contract of sale was signed which
described the land and stated the total
consideration without referring to the
number of acres or the price per acre.
The contract was conSummateds by pay
ment of the price and the execution and
which contained no reference to the price
per acre but stated the consideration as
S12, 30 and gave a description of the lane
followed by the words, containing in all
272 acres more less" The tract con-
tanned only 257.n acres. The vendee sued
to recover the excess consideration, stat
ing all the facts relating to the sale in
his petition. Held:
l. The plaintiff was entitled to recover
because of Misrepresentation as to the
quantity of land, although the representa-
ton was made without intent to deceive
2 The plaintiff was also entitled to re-
cover, irrespective of fraud, because or
the mutual mistake of the parties re-
garding the quantity of land.
3. The oral negotiations were admissible
in evidence to sustain both grounds of re-
covery.
4. The plaintiff was not entitled to re-
cover on the ground of willful fraud.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1S,042
H. A. Jones, Appellee,

n A jules, Appetite,
VS..
A A. Hedstrom, Appellant.
Appeal from Butler County.
AFFIRMED.
Syllabus. By the Court. Smith, ].
1. Where a written contract is made
between the owner and a proposed pur-
chaser of a tract of land, in which con-
tract the terms of the transaction are
specified in full, and where the pu1
chaser thereafter requests that the deed
be made to recite a different conSidera-
ton than is recited in the contract and
the name of the grantee be left blank, the
seller is not bound to comply with the re-
quest nor is he justified by reason thereof
in repudiating the whole transaction, but
1t is his duty to grant the request or to
tender performance in accordance with
the contract.
2. here real estate agent has con-
tract with the owner of certain lands
that if the agent secures a purchaser for
the land at a specified price per acre net
to the owner, the implied agreement being
that any excess obtained should go to the
agent as his commission, and the agent
secures buyer who executes a contract
to buy the land upon the terms prescribed
to the agent but at the price of one dollar
more per acre than the net price stated,
and such purchaser is able and willing to
buy the land pursuant to his contract but
the owner refuses without just cause to
convey the land; Held, that the agent is
entitled to recover of the owner dam
age a judgment equal to one dollar per
acre of the land
3. Where in an action for the recovery
of money an attachment is issued and
levied upon real estate and the action pro-
ceeds to judgment in favor of the plaintiff,
question to the validity of the at
for the sale of the attached property, in
case of the non-payment, of the judgment,
is properly made.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1867.
Bank of Topeka, Appellee,


NJ G. Sadler, Appellant.
Appeal from Chautauqua County.
AFFIRMED.
Syllabus BY the court. Mason. J..
1. Following Deming ". Douglass, 6e
Kan. 73s. 81 Pac. 945, it is held that a
plaintiff in ejectment, who has voluntarily
dismissed his action. after a judgment
upon a first trial had been set aside uu-
der the statute Cnow repealed) allowing a
second trial as a matter of right, is re-
garded as having thereby permanently
abandoned his claim. and can maintain no
further action thereon.
g One who has in that manner lost the
right to maintain such an action, can not.
by taking possession of the land while
temporarily without an actual occupant,
ACQUIRE the right to assert his claim OF
title by way of defense
g. A recital in the record of an eject
ment action, that Judgment upon first
trial was vacated for good cause shown.
upon application of the unsuccessful
party notice thereof being entered the
Journal is to be interpreted. in the alb
sence of anything further to indicate the
contrary as showing that the Judgment
was vacated upon demand made as a
matter of right
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE.
(SeaD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
FOR EXCHANGE.
FOR EXCHANGE

so acres Wabaunsee Co., miles Ear-
veyville, miles Burlingame. about 40
acres under cultivation, IA acres bottom,
small or 3 room house, pretty good barn.
small orchard, good pasture and NOW
land. Will exchange for city property,
suburban, or smaller farm. Price 81, 600.
Mtg. s., 100. Can give possession.
TOPEKA REAL ESTATE CO.
1873 Kansas Ave
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1924.
James Chester, ct al, Appellants.

No. 1924
James Chester, ct al, Appellants,
Ida M Chester, ct al, Appellees.
Appeal from Sumner County
AFFIRMED.
Syllabus By the Court Porter I
1. The mere fact that a conveyance is
between husband and wife or parent and
child or between persons occupying sim
liar intimate relationships, and that no
valuable consideration passes is not suf
ficient to raise a trust by Implication
there must be fraud, active or construc-
tive, some betrayal of a confidence re-
posed or some breach of duty imposed by
such relation. Neither character of fraud
will be presumed from the fact alone that
the relationship of the parties is such as to
suggest that fiduciary relation might
have existed.
2. A constructive trust will arise when
ever the circumstances under which the
property was acquired make it ineQuita bic
that it should be retained by the person
who holds the legal title, but equity has
no power to declare trust and enforce
it to prevent injustice merely because the
transaction results inequitabIy to 9th ~
parties
8. However harsh or unjust or fneouft-
able it may appear for a husband to make
a gift to his second wife of his real estate
and thus deprive the children of his first
marriage of all interest therein even
though he acquired the real estate from
moneys derived from their mothers sepa-
rate property. equity is powerless to raise
the ground that ii is necessary to prevent
a failure of justice.
f. A conveyance of real estate by the
name, the consideration being furnished
by him is presumed to be a gift and the
burden rests upon those who assert that
the transaction was intended as con-
veyance of the legal title to the wife to
be held in trust for the husband.
3. A husband may make a gift of his
creditors interfere and It Will be upheld
as against his heirs notwithstanding they
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
w A m T S
AND MISCELLANEOUS ADS

ADVERTISING RATES: The rate for
Inserting Want Ads in The Topeka State
Journal is one cent a word each insertion.
minimum 10 cents; by the week Genus
word. minimum so cents.
OUT OF TOWN advertisements must Se
accompanied with cash or check IN TUT
payment for the same. Note the 1oreso-
ing instructions about counting the WORDS
eno the rates per word for The Iop-HA
Sta re Journal s=
COUNT THE WORDS of your 40 N
Guiding four words for State Journal 40.
uress when such address IS used; ccun ~
each initial" letter and each numner "
ecnbination of figures one woro-
CLOSING HOUR want Ads to he
classified properly In The Topeka stare
Journal must be in The State Jour1Ai
office before O'Clock. Want Ads received
after the noon hour win be inserted unoer
the heading: '"Too Late to CLASSIFY. or
next day desired.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

Easy to Win.-Mother-Now, do be care
ful now you act about that young man or
people will think you are running afte-
him. Daughter don't have to do that
mother, can win in walk.-Boston Ad-
vertiSer
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 5000.
w. H. Winkler, Appellee,

VS..
Thu Citizens State Bank of Gueda Springs.
Kansas, a corporation, Appellant.
Appeal from Cowley County.
MODIFIED.
Syllabus By the Court. Smith. j.
In an action by depositor to recover
money placed by him in bank as a gen
eral deposit, the bank having wrongfully
refused payment and having protested a
check drawn by the depositor for the
amount thereof, the bank is not liable for
exemplary damages unless it was guilty
of fraud malice, gross negligence or OPP
preston in So doing.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1904.
Jessie Upton, Appellee,

VS..
The Topeka Railway Company, Appellant.
Appeal from Shawnee County.
Division 2.
AFFIRMED.
Syllabus. BY the Court. Porter, J.
1. Where a street railway company
maintains a stopping place for its cars to
receive and discharge passengers at
point which is not in a public street, but
is upon public grounds opening into u
public street 1t owes a duty to the public
to keep the place in a reasonably safe
condition for passengers unfamiliar with
the surroundings who come there in the
nighttime to board it's cars.
2 An intending passenger who ap-
proaches in the nighttime a stopping
place established near a public street by
a street railway company to receive and
discharge its passengers, and who is I'M
familiar with the surroundings, has
righ+ to assume that the tracks of the
company over which he must cross in or
der to reach the car are not in danger
Gus condition; and, If without negligence
his part, he is injured by reason Of
the defective condition of the tracks, the
company will be liable.
g. Evidence of subsequent repairs and
alterations is competent for the purpose
of showing defendants control over the
place where the injury was received.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
LOST and FOUND.

LOST-This morning between Bank of
Topeka and Santa Fe depot, two ten
and two five dollar bills, the cash from
a pay check. Return to Scotch Wooden
Mills. Reward.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
BUSINESS CHANCES,

WANTED IDEAS-Write for list and in
ventionS wanted by manufacturers and
prizes offered for inventions. Our four
books sent free. Patent secured or fee
returned. Victor J. Evans & Co., Wash
ington, d. C.
TWO HUNDRED DOLLARS buys bust
and furnishes goods to carry on
business. Any energetic man can make
from $50 to 500 per month besides giving
steady employment to l. or Is carpenters.
Call on D. v. Hardie, Glenwood hotel,
Room 8.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

No. 1923.
Robert c. Rogers, Appellee,
Minnie NJ. Lindsay, as Administrative of
the Estate of George N. Lindsay De-
ceased, Appellant.
Appeal from Neosho County.
MODIFIED.
Syllabus. BY the Court Smith
Mere mistakes in keeping accounts with
the estate, where no fraud is shown, do
not forfeit guardians right to com
pensation for his services.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1877.
H. Bartels, Appellee,

mo. 1fs5lf
III. Bartels, Appellee,
VS.
School District No. 11S. Appellee and c.
w. DeLano, ct al, Appellants.
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. BY the Court. Johnston. G. J.
In a controversy as to whether parts
of building were provided for in the
building contract were extras 1t APP
peared that the provisions of the con-
tract respecting them were obscure and
conflicting and there was oral and
flicting testimony to the Interpretation
of the contract by the parties and also
as to what was done under 1t and, hence,
the findings of the trial court on this
issue, which are supported by some sub
stantial testimony can not be disturbed
on appeal although the supreme court
might have reached a different conclusion
in an original investigation based on the
same testimony.
All the Justices concurring.
true copy.
Attest: ID. A VALENTINE.
tSealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1865.
Frank NJ. Gray, Appellee,

No. 1868.
Frank NJ. Gray, Appellee
VS..
The Missouri Pacific Railway Compauv
Appellant.
Appeal from Rice County.
MODIFIED.
Syllabus. By the Court Smith l.
In an action in which it is sought to re-
cover attorneys fees for the prosecution
thereof, the necessary facts should De
pleaded and, when a jury trial is had
evidence should be produced of the fact
and of the value of the services and the
issue should be determined by the jury as
in other issues in the case are determined.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
CSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
MANIFESTATIONS.

WANTED-By young lady attending bus
mess college place to work for room
and board. Address D. F., Journal.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
D. A. VALENTINE,
Clerk Supreme Court.

No. 1904
In re Thomas J. Durant, deceased alvin
Campbell, proponent.) Appellee,
Christian Durant, Opponent, Appellant
Appeal from Cloud County
AFFIRMED
Syllabus BY the Court Porter T.
An appeal will lie to the district court
from a decision of the probate court re-
fusing to admit will to probate not
w1thstanding the amendment of 1907 to
sections 10 and 20 of the act relating to
wills, tsecs 1885, 1896. Gen. Stat 1900 by
which such order may be contested in a
civil action in the district court brought
within three years after the refusal to
probate, the remedy provided by such
amendment being held merely cumulative
to that authorizing appeals from final
decisions in the probate court. (secs. 1924
Gen. Stat. 1909
All the Justices concurring
A true copy.
Attest: d A VATENJrTNE
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
FOR SALE-POULTRY.

~-~-~~~--~~~-~>~-~~-~~~-
KELLERSTRASS thoroughbred White
Orpington eggs six dollars per hundred !;
also chicks. F. G. Irwin, No. Topeka,
Kan. Phone 474 Red.
FOR SALE-RoSe Comb Rhode Island
Red eggs, Is for $780, Fine range stock
and nine years experience Mrs. Joe Roe,
r. No. 2, Corning, Kansas.
SINGLE COMB White Leghorn, stock
and eggs at Is for rs cents or 81 per hun
dred. Pure bred fancy stock. Humphrey
Poultry Yards, Hoxie, Kan
BLACK LANGSHAN EGGS SOC for Is.
M o. S. Dietrich Shorey. Tel. 2105 N 3.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
RAZOR BLADES.

SAFETY razor blades machine shapened,
single edge S5c, double edge 35c doz. Mall
them to Brunt Drug Co.. Topeka
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
EGAI
No. 1908.
John Eberhart, ct al, Appe1lees,
VS..
John Rath, Appellant,

No. 1908.
John Eberhart, ct al, Appellees,
John Rath, Appellant,
and
Henry Rath, Appellee.
Appeal from Cheyenne County.
AFFIRMED.
Syllabus. BY the Court Benson ]
l. widow residing and owning lands
In this state married a man residing and
owning property in Nebraska. AS part of
the marriage contract it was orally
ssgreed that he should receive nothing Of
she should receive the sum of $1,000 only
Of his estate in case he died first After
the marriage in Kansas the parties estab-
l1shed their home in Nebraska where they
resided for seventeen years when she died,
leaving children by. former marriage
after the marriage the husband and wife
entered into written contract, in view of
the oral agreement. and of the same pur-
port. In this action for partition brought
by the children of the former marriage
the surviving husband claims one-half of
the land in this state owned by his wife
at the time of the marriage and at her
death 1t is held that the written contract
Is valid and effsctual although it does not
ment
2. he validity of the REIMBURSEMENT
by the husband of his rights in the wife's
land in this state under the contract
above referred to must be determined by
the laws of Kansas although the instru-
ment was made in Nebraska.
8. The opinions of witnesses, practicing
lawyers of Nebraska, that the agreement
and contract referred to in the first above
paragraph are invalid, are not conclusive
in the absence of controlling decision
in that state. Upon an examination of
statutes in evidence, and decisions of the
Supreme Court of Nebraska, 1t is con-
cluded that such contracts are regarded
in that state in the same light as they are
viewed here.
petent to testify to a conversation with
his wife, since deceased, by which he
claimed that the post nuptial contract be-
tween them had been abrogated.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
FOR SALE-REaL ESTATE.
FOR SALE-HORsES, COWS.

4-YEAR-OLD horse, weight HOO lbs, per-
fectly safe for lady, high hooker and
good locker. Inquire at 1916 Lane st. after
o'clock.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

REGISTERED Jersey bull for service.
Fees S1.00. Himberger, 9Th and Golden
ave
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
WANTED-AGENTS,

SOLICITORS you can easily make $500
per month working my proposition. We
sell 100 per cent of our prospects. Work
here at home. 800. care Journal.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

FOR SALE-30 head of Jersey and Gurer-
|. sey cows, to z years old, fresh and
coming fresh; all tested cows. A special
price on bunch o. N. Hamburger, AS
Fillmore St
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
WANTED-MALE HELP.

- WANTED-4 farm hands, dairy help,
Employment Office, 532 Kansas ave, over
Scotch Wooden Mills.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
PICTURE FRAMING.

FRAMING. regilding. mat making. mount.
ing done by J. D. Sullivan. LIZ w. Eighth
street Packing. shipping. etc
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

additional syliabi on Pages 7 and III
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
No. 1909.

D. A. VALENTINE.
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

= HEAD good farm horses and mares
128 Topeka ave.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

d. A. VALENTINE.
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

ONE 2-year-old colt, partly broke; gentle.
well bred One mare, harness and
buggy. Inquire 1923 Central Parke ave.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15

wANTED-Young single driver; must be
PAGER 11S5 Washburn ave.
GET YOUR carpenter repair work done |
by A. Morand. Phone 2210 NJ
The day book. [volume] (Chicago, Ill.) 1911-1917, 1913-01-13

IS IN TABLOID FORM
London-Rechid Pasha, chief
of Turkish peace delegates, an
nounced at foreign office that
Turks would remain in London
until Saturday.
Indianapolis. M. Palston
inaugurated 18th governor of In
diana today. Succeeds T. R. Mar
shall, Dem, vice-pres. -elect of
U. S.
New York.-In khaki and cor
duroy suits, in which they have
walked from Colorado Springs,
Mr.. and Mrs. P. L. Finson reach
ed here today. Took them 80
days, l hour and As minutes.
Won prize of $500 offered by
Pixies Peak Athletic club for first
couple to walk the distance with
in 90 days.
Rome Pope has forbidden
any more moving picture shows
in Catholic churches.
Monte Carlo Richard Lam
dau, English visitor, missed train.
Went back to Casino in disgust
and won $4,000
Trenton, N. Local Demo-
Gratis will present Wilson with
cane made from keel of famous
old fighting craft Constitution.
Halifax, N. S.-Liner Uranium,
due at Erie Basin, N. Y, Monday
morning, stranded on reef near
Chebucto Head Light. 1000 per-
sons in peril.
The day book. [volume] (Chicago, Ill.) 1911-1917, 1913-01-13

EVERYWHERE'S NEV
Berlin.-Dr. Friedrich Fried
mann, by letter, has formally in
vited u. S, government to inves-
tigate purported cure for tuber-
culosis.
Columbus.-Jas. M. Cox made
governor of Ohio today to sue
coed Judson Harmon.
Washington. = Rep. Pujo,
chairman of Money Trust inves-
tigation, today investigated how
sick Bill Rockefeller was. He re-
fuses to disclose any of his in
formation.
Evansville, Ind.-Hundreds of
families here are staying in sec
ond stories of their homes on &c
count of flood along lower Ohio
river.
Kansas City.-Third trial of
DR.. B. Clark Hyde, for murder
of Col. T. H. Swope postponed
today until Wednesday.
Milwaukee. - Fire destroyed
Wild bldg. 100000 loss.
Los Angeles.-'It's a rotten
mistake. wasn't running 40
miles an hour. Please change the
record to TO-" Request of Bar
ney Oldheld after he had been
fined SIS for speeding here today.
Copenhagen. - DR.. Lindahl,
Danish professor, declares he has
discovered that tears are antisep-
tic and destroy microbes.
Boston.-No sign that dead