davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No 1881
The State of Kansas Appellee,

No 1881
The State of Kansas Appellee,
We
Harry ]. Taylor and William F. Richards.
Appellants
Appeal from Saline County.
AFFIRMED
SYLLABUS By the Court Mason. j.
/ Under the statute making II larceny
frauduIeutly to conceal, or sell or dispose
Of mortgaged proPerty' an inI4[ n coITIi
with concealing, selling and disposing OF
such property is not subject to q motion 70
Quash because of dupItcfty-
Such an information, 50 far as It
charges a coneeaIment of the property, Is
NOT subject to a motion to quash on the
to that end are not stated
g. Where in computation OF the gen
eraI statutes a word which was correctly
included in the official puohcatlon Is IN
ar5va-tantIv omitted and the legislature
for the purpose of ehecting change IN
the language OF another part OF the sec
niIation. without inserting the omitted
word, such word may De suppneo oS
construction especially where this Is
necessary to give enect 10 Ihe MANIFEST
purpose OF the statute
4 In the phrase the amount OF twenty
dollars occurring in the present statute
rnortgaged property laws 1911 CHI Z26
between the amount Of and twenty
dollars its omission having been occa-
stoned in the manner indicated
s. In a prosecution under the statute
referred to, any error in oyeTruhng
motion 70 require the state TO elect wheth-
er il will rely for conviction upon con-
ceaIu1ert or a sale Of mortgaged property,
Is cured by an instruction that conNlc-
tfon car only be had upon the charge OF
coucealment-
s The word conceal as used in that
statute includes an Intentional handling
ara shifting OF the property in such a
manner as to miSlead or confuse the mort
gage in his efforts 10 find IL
: The evidence held 10 be sufficient TO
sustain the conviction
All the Justices concurrfng-
A true CODY
Attest. d A VALENTINE.
TSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No 1873.
Sadie Burgin, Appellee.


Sadie Burgin, Appellee.
Missouri. Kansas & Texas Railway Com
pany, Appellant
Appeal from Cherokee County.
AFFIRMED.
Syllabus BY the Court Bureh j.
L While the statute enacted to protect
the health and safety OF mine workers
enbodies subjects covered by the mining
act of the state of Pennsylvania. such act
was not adopted as the law of Kansas
and the decisions of the supreme court Of
Pennsylvania interpreting it are per-
suasive only and not controlling.
?. The statute referred to IS not uncon-
stitutional as discriminating against mine
owners and operators because II abolishes
the defenses of assumption of risk and
contributory negligence in certain actions
which it authorizes.
3 The statute referred to IS the result
of a valid exercise of the police power of
the state and IS not in contravention of
the provisions OF the constitution of the
United States or the amendments thereto
4 The decision In the case of Cheek "
Railway Co., So Kan "a, III Pac- 617, ap-
proved and followed
All the justices concurrfng.
A true copy.
Attest: D. A VALENTINE,
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1890.
s E. keener, Appellant,


Robert Lloyd, as executor of the last will
and testament of John Lloyd
deceased, Appellee
Appeal from Clay County
REVERSED.
Syllabus By the Court Johnston. C J.
In a controversy as to whether or not
an action upon a promissory note was
barred by the statute of limitations. in
which IT was claimed that a partial pay
ment Endorsed upon the note toIIed the
statute, and where there was testimony
by the holder that a payment was made
on the date of the Endorsement and also
testimony of such payment by another
witness who was unable to fix the par
ticular day when it was made an instruc-
ton to the effect that unless it was shown
that the payment was made on the par
ticuIar date OF the Endorsement the bar of
the statute had fallen and no recovery
could be had upon the note and the re-
fusaI of request for instruction that
the action would not be barred If a pay
ment had been made at OF near the date
of Endorsement and within the statutory
period of limitation was error.
All the justices concurring-
\ true copy
Attest D. A VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No 1882
Jane Caldwell, Appellee,

No. 1882
Jane Caldwell, Appellee,
The Modern Woodmen of America, Ap-
peilant-
Appeal from SedgWick County
On Petition for Rehearing-
Allowed
Syllabus By the Court Benson. J.
l. A Judgment upon an insurance policy
based upon the presumption OF the death
Of the insured person after an Unexplain-
ed absence of over seven years, was af-
firmed- Afterwards and while the action
was pending upon a motion for rehear-
ing evidence was filed in this court tend
ing to prove that the insured person was
still alive 4 reheariug was granted upon
the question whether the issue Of death
should be again tried in the district court
and UPON that question. On leave given
filed IN this court tending further 10 prove
that the insured Is living No evidence
is presented TO the contrary II Is held Cd
that upon the circumstances OF this case
the defendant IS not precluded from as
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1874.

No. 1874.
George ". Brown. Appellee,
J. A. Stewart. ct al, Appellants.
No. 1S315-
W. P. Haskin. ct al, Appellees
vs.
J. A Stewart. ct al. Appellants.
Appeals from johnson County.
AFFIRMED
Syllabus. By the Court Porter, J.
L The rule that where property IS in
the possession and subject to the jJlrisdic-
ton OF one court. another court of con-
current jurisdiction cannot interfere with
the possession, merely operates to protect
the immediate possession of the first
court, and does not deprive another court
OF jurisdiction TO determine controversies
over the same property.
= The Jurisdiction OF q state court in
suit to cancel deed conveying to a rail-
road company land for use as a right of
way, is not ousted by the tendency Of a
former suit in a Federal Court to fore
close mortgage given by the railroad
company on its right of way.
J. Under the facts of this case it is held
that the long continued failure of the rail-
road company to commence the construc-
ton OF its road constituted a breach of
a condition in the deed providing that If
purposes OF right OF way. IT should re-
vert to the grantors.
A true copy.
Attest: D. A. VALENTINE
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
D. A VALENTINE.
Clerk Supreme Court
No. 1892
lstella Van Gundy. ct al, Appellees,

NO ISZ1--
EstelIa Van Gundy. ct al, Appellees.
CIum c. Shewey. Appellant
Appeal from Norton County.
AFFIRMED
Syllabus BY the Court Burch- J.
L A vendors title is not necessarily
unmarketabIe because derived through
deeds from the heirs OF a deceased owner
whose estate was not probated-
, In such q case abstract of title
may be made to exhibit a good title by at
taching to il the a1idavits of credible
persons who know the facts showing in
testacy, heirship. capacity 10 convey, and
the satisfaction OF all claims against the
estate OF the deceased
3 When such a showing has been made
il devolves upon the vendee Directing to
the title TO show wherein il is bad or
doubtful or that the evidence necessary
TO establish the facts is so uncertain or
inaccessible as TO render the title doubt
fuI-
4 In ISIS the owner of a tract OF land
gave trust deed or mortgage to a person
designated trustee for d third person
designated as beneficiary. The beneficiary
assigned the mortgage and the assignee
released II The trustee has acquieSced
IN the release for a period of time exceed
ing that prescribed by the statute Of Hrni-
tauonS- Held, the trustee has no interest
in the land which IS now OF may here
after become SUBSTANTIAL and that the title
is not doubtful because he did not join in
the release
s Under section - of the civil code
which takes the place of section % OF the
old code an affidavit fur service by pub
by direct statement or by way of infer
ence from other statements that the
plaintiff diligently inquired to the
residence Of the defendants to be served
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1s,107.
J. ". Rogers. Appellee,


J. N Rogers. Appellee,
vs.
F. l. Dockstader and G. W. Golf, Appel
lantS-
Appeal from Marion County.
REVERSED.
Syllabus. By the Court West. J.
A written lease for term of years may
be surrendered by agreement of the
parties thereto, without the execution and
acceptance OF release in writing. If the
facts and circumstances show a mutual
understanding and agreement to termi
nate the relation of landlord and tenant,
a surrender of possession by the latter
and the recognition of another tenant by
the former, such lease VIII be deemed to
have been surrendered
All the justices concurring-
\ true copy
Attest: D. A VALENTINE,
FSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1928.
N H Remy, Appellee,

No. IszIY.
y. H Reny, Appellee,
Fowler Packing Company. Appellant
Appeal from Wyandotte County
Second Division.
AFFIRMED.
Syllabus. By the Court Smith, J.
1. Under the circumstances of which
there is evidence in this case, 1t is ques-
ton of fact whether or not the written
release was executed with a fair under
standing of its provisions and is valid and
conclusive of the rights of the parties.
2 Tne evidence of the appellee was evil
IDENTIFY believed by the jury and their YER
dict was approved by the court in render
ing judgment in accordance Herewith,
and following the well established rule,
we cannot reverse the judgment here
All the justices concurring.
A true copy.
Attest d A VALENTINE,
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
LEGAL.

PENDANT appeals from both judgments of
the district court in which court the ap-
pellant moves to consolidate the cases,
which is done; Held, no error, although
the sum of the two claims is more than
$500, and further If the ruling were err
roneous the appellant would not, here, be
heard to urge an error which he had af-
Tentatively invited.
2 Loss of market or of price resulting
from delay in transportation is not within
the provisions of a contract requiring
notice of loss before cattle, which are
shipped should be removed or mingled
with other stock but loss by shrinkage in
weight is within such provision
g. Section 90 Chapter 1881, "a Q. s. Stat
utes at Large, prohibits a common carrier
from limiting by contract. rule or reguIa-
ton its liability for damages resulting
from It's own negligence or the negligence
of any other common carrier into whose
possession the property may come for
transportation by virtue of the bill OF lad
ing which the section requires the initial
carrier to issue to the shipper. It does
not limit the right OF the common carrier
to make a reasonable contract with the
supper requiring notice OF loss or dam
age or limiting the time within which an
action to recover damages NAV be
brought
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
tSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No 1883
Hattie Robinson. Appellee.

No 1858
Hattie Robinson. Appellee
The Chicago. Rock Island & Pacific Rail-
way Company, Appellant
Appeal from Phillips County.
AFFIRMED
Syllabus BY the Court Smith J.
l. In an action brought in time, by
widow to recover damages for the neg
hgent killing of her husband in the op-
Grafton of railway train, the omission to
allege in the petition that the deceased
was a non-resident Of Kansas but was a
resident Of another state and that by the
laws Of such other state the widow was
the only person authorized to bring the
action does not render such action nuIli-
ty-
?. Where in such case the PLAINTIFF.
more than two years after the death
of her husband, IN leave of court files
an amended petition In the action and re-
cites therein substantially the same facts
as in her original petition and adds the
omitted allegations with reference to the
uors-residence of the deceased, the au-
thority to bring the action under the laws
Of the other state, etc, her action IS not
tons relating to actions of this class
All the Justices concurrfng-
A true copy.
Attest: D. A VALENTINE,
ISeaLl Clerk Supreme Court
No. 1855
The Commercial State Bank of Waverly,
Kansas, Appellant.
Letitia c. Ross, as Executrix Of the Estate
of George w Ross, deceased, Appellee
Appeal from Coffey County
MODIFIED.
Syllabus. By the Court Mason, ].
L Where a demand against estate,
upon allowance by the probate court, is
inadvertently assigned to different class
from that to which 1t rightfully belongs,
the court may. even at subsequent term,
correct the classification to correspond to
the fact. upon due APPLICATION and notice
2 A demand against the estate Of
decedent- founded upon a note given by
him to raise money to pay his doctors
bill. can not be classified a part of
the expenses of his last sickness.
g. Where an executor or administrator
has allowed and paid just claim against
the estate of less than $50 he is not 10 be
denied credit therefor upon an accounting.
because Of his failure to require from the
claimant the statutory affidavit Of its
correctness.
All the justices concurring.
A true copy.
Attest d a NALEN VINE
TSeaLT Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1889.
Annie Ennis. Appellee,

No. 1889.
Annie Ennis. Appellee,
vs.
Charles NJ Nusbauu, as Administrator of
the Estate of Obed Christ deceased.
Appellant
Appeal from Marion County.
AFFIRMED.
Syllabus BY the Court Mason. J.
Where one lives With family Consisting
OF husband and wife under such circurn-
stances incur an obligation TO paw for
his board no express contract being made,
a recovery thereon in the name of the
wife cannot be denied upon the ground
that the right Of action was in the hus-
band. where the husband gives testimony
in support of the wife's claim
All the Justices concurring:
true copy.
Attest: D. A VALENTINE
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08

NO lSL09-
W W Stroupe and W. A Hickey, Appel
lees,
Mary Lee Hewitt Appellant.
Appel from Sedgw1ck County
AFFIRMED.
Syllabus. fEv the Court. Benson.
1. An order striking out parts of an an
swer but which leaves II sufficient to pre-
sent all proper defenses, and counter
claims. is not prejudiciaIly erroneous.
2 Evidence OF a parol agreement is ad-
Missile to prove that written contract
for the sale and exchange of property
signed and deposited in a bank should not
take effect until one of the parties has
had an opportunity for five days to test
the truthfulness Of representations made
concerning the property of the other to be
exchanged, when such oral agreement
does not contradict any stipulation in the
writing
3 Rulings upon testimony are reviewed
and held not to prejudice substantial
rights.
4. Instructions are examined and held
to fairly state the theories OF the parties
and to clearly submit the issues.
5. The measure OF damages in actions
for fraud and deceit in the sale Of prop
erty. as held in Speed V. HoIIfngsworth,
81 Kan. ass. IS Pac. 1876 is followed
All the Justices concurring-
A true copy.
Attest: D. A. VALENTINE,
[Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
NURSES.

PRACTICAL NURSING. competent and
careful. SIS a week Call 225S K-3 Mrs
Jennie Kelsey.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1884.
Sallie c. Singer, Appellant.
]. Luther Taylor, ct al, Appellees-
Appeal from Crawford County

]. Luther Taylor. ct al, Appellees-
Appeal from Crawford County
AFFIRMED.
Syllabus. By the Court Johnston, C. J.
l. The withdrawal Of a case from a
jury called to aid the court in determining
questions Of fact in an action to set aside
a will because of undue influence at the
conclusion Of plaintiffs evidence is not z
ground Of error, and could not have OPP
Grated TO the prejudice of the plaintiff
since no substantial testimony of undue
influence was produced
2 The fact that the property Of a test
tator was unequaIIy divided by him in
his will does not, Of itself. raise a pre-
sumption of undue influence
g. The plenary power in testator to
dispose Of his property as he may see Tit
includes the right to make an unnatural
unreasonable disposition of his
property
4. After making certain specific be-
quests and the giving Of a life estate in
the remainder of his property to his wife
the testator provided in his will that at
the death OF his wife, 7 direct and IL is
my will that the residue of my estate
shall be paid to my beloved SON. Held.
that the word paid Interpreted IN the
light Of the language in the will. is a word
of gift and VIII convey the residue OF the
estate to the SON.
s. In the absence of definite provision
to the contrary, IL is to be presumed that
a testator intended to dispose OF his whole
estate and did not intend to die fnteState
as TO any part Of it
All the Justices concurrfng-
A true copy.
Attest: D. A. VALENTINE,
[SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
EGAl.
published in The Topeka State Journal
July s. 1871
SUPREME COURT SYLLADI.
No. 1873
W Stewart Brown. Appellant,
=. NJ Cruce and Dora CrUGe, Appelless-
Appeal from Sedg Eicix County.

+. NJ Cruce and Dora CrEce, AppelIess-
Appeal from Sedg wick County.
First III isiG1
REVERSED
Syllabus BY the Court West. J.
L A matchmaker and mechanical drafts
man made a model for two inventors and
1T was then agreed that they should pay
him twO-thirds the value Of his work, the
three TO share jointly in the patent TO be
procured Thereupon they executed TO
him a note which recited that it was for
work done;
said amount due when said amount is
made out OF said patent or the manufac-
ture and sale of said machine under said
patent" Held. that the makers were
obligated to put forth. together with the
plaintiff, reasonable efforts thus to make
the amount, and their failure or refusal
so to do within reasonable time would
leave them liable for its payment
2 The rule that a demurrer to the
plaintiffs evidence should not be sus
tanned unless there is an entire absence
of proof tending to show right to recov-
er-fouowed-
All OF the Justices coucurrtng.
A true copy.
Attest: D. A VALENTINE.
ISeaI CLERK Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
UNDERTAKING.

L NJ PENwELI, funeral director ana
embalrner. 7. z Jones, Asst First ciaaa
service 5oS-51e quincy ST Telephone ia
Phone n. Day and Night
HAWLEY & STEELE.
Funeral directors and embalrners. 11e Eamg
gth ave Mrs Roht Steele. assistant
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
BILLIARD AND POCKET TABLES

FOR SALENew and secondhand cArou.
and pocket billiard tables and bowling
alleys We lead the world In cheap Tx
lures. easy payments- Send f1r catalogue
Brunswtck-Balke-C Co. 1zD-u
Main street. Kansas City. No
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
LEGAl,

stances in which he was required to stop;
the foregoing is approved.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeaL1 Clerk Supreme Court
1.-THE remainder of the supreme court
syuabi covering decisions handed down
July 5. will be published in tomorrow's
State Journal
First published in The Topeka State
Journal July 3, 1881
SCHOOL HOUSE
Sealed bids will be received by the
Board of Education Of Burlingame. Kan
sas, up to twelve o'clock noon, July 18th.
1913, for furnishing material and labor
necessary to construct addition and
remodeling to present school building
cording to plans prepared for same by
J. C. Holland and Son. Architects. Topeka.
Kansas.
Plans may be had by addressing the
architects. also can be seen at Office Of
E. NJ Nelson. Secy- Board Of Education.
Burnngame. Kan
The right is reserved to reject any or
all bids by order of the Board Of Educa-
ton
2. NJ NELSON, Secy.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1888.
Ed Reynolds, Appellee,


Ed Reynolds, Appellee,
The New Century Mining Company. APP
peIlant.
Appeal from Cherokee County.
AFFIRMED.
Syllabus BY the Court Benson. J.
L 1t is the duty OF a mining company
to exercise ordinary diligence to keep the
roof of its mine reasonably safe for Its
Ia borers- This duty requires inspections
with such care and frequency as reason
able prudence demands in the conditions
existing.
sufficient to support finding that the de-
fendant was negligent in failing to prop
erly examine and prod the roof OF
zinc mine from which BOULDER Zen ana
injured the plaintiff a Iaborer therein
J. A witness who had procured state
-nent from the plaintiff OF his injuries
having testified in direct examination that
he was acting at the instance of an at
toruey was asked whom the attorney rep
resented, and answered the Insurance.
corupany- This answer was within the
reasonable limits of eTosS-exa animation
4 An instruction which impresSes upon
the Jury the Importance of making true
findings of fact from a candid conSidera-
ton OF the evidence is not prejud1ctally
erroneous because il included a statement
that 2 mistake OF law may be corrected
BY the court while q mistake IN q finding
of fact upon conflicting evidence can not
be corrected and other findings substi-
tuted-
All the Justices coneUrring-
A true copy.
Attest D A VALENTINE,
TSeaII Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
No. 1897.

No. 1897.
The Oneida Farmers Shipping Associa-
ton. Appellee,
The St Joseph & Grand Island Railway
Company. Appellant.
Appeal from Nemaha County
AFFIRMED
Syllabus By the Court Porter. J.
In an action under sec F2G5 Gen Stat.
1909, by a shipper against an interstate
railroad to recover a penalty for delays
in the transportation of grain in car load
lots from Oneida Kansas, to Elwood,
Kansas. held.
a. Under the facts stated in the opin-
ion the h acton may ma 6s n1ainta in
as completed when the grain was IN
loaded into the elevator OF the purchaser
at Elwood. Kansas. and therefore intra-
state. or whether it was interstate in
character.-becauss of custom and ar
ransement- Of which the plaintiff had no
notice or knowledge. which existed be-
tween the carrier and the owner OF the
elevator giving the latter milling in
on grain of like quality and quantity
when rashipped 10 points outside the
state, nevertheless the state, in the p<oper
and enforce reasonable regulations de-
signed prevent unnecessary delays in
such transportation occurring within its
G Sec 72as OF the Gen Stat of 1873 is
proper exercise of the police power ard
place an unreasonable burden upon inter
state commerce.
All The Justices concurring-
true copy
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court
No. 1855
W. P. RiSchardSon, az al. Appellants
Missouri Pacific R1y- Co. Appellee
Appeal from Montgomery County.
AFFIRMED.
Syllabus BY the Court Burch- =
L If the conductor Of freight train
know that a treSpaSSer riding upon one
of the cars is in a situation in which his
safety would be imperiled by the contin-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08

No 1Sz&.
D. D. Ray, ct al. Partners, etc, Ap-
pellees.
Missouri Kansas & Texas Railway Com
pany, Appellants
Appeal from Labette County
REVERSED
SvIIa rf1s BY the Court Smith J.
/ Where one plaintiff brings two
tons IN a justice court against the same
defendant for an amount of money in
each case. within the jurisdiction of that
court and Judgment IS therein rendered in
each case for the plaintiff. and the de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08
PHYSICIANS AND SURGEONS.

DIR ARMSTRONG. Us Kansas ave. to
D m free Those not able to pay
DR. ]. M JAMESON. az Madison Special
diseases Phone So.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08

First published in The Topeka State
Journal July 3, 1881
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-07-08

D. A. VALENTINE.
Clerk Supreme Court