The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-11-18

All the Justices concurriug.
Attest Attest p; A. VALENTINE.
tSeaAi Clerk Supreme Court
The State of Kansas. ex rel John q
PaWsGn as Attorney General. etc.
Frank n, Holcomb. as Clerk of wyan-
d9r.e county. etc. Defendant.
P S1sans1 r6Ssseding g in Mandamus;
Syllabus By the Court Johns.~n. q. I.
me provision Of section 1862 OF the Cen
era. statutes OF 1909 requiring officers to
per OF color other than that Of the Of
ftcial ballots and to distributes them
among candidates and their agents and
l.ations is not repealed by section 8 Of
chapter 189 Of the laws of 1913.
Mason. J.. Smith. J.. Porter. J.. West,
Burch. J.. and Benson J. dissenting.
Attest: d. A. VALENTINE,
tSeaAI Clerk Supreme Court.
No. 1885.
George Harryman. ct al. Appellees.
Harry B. Harryman, ct al, Appellants
Appeal from sedgwick County.
Division No. 1.
AFFIRMED
Syllabus. By the Court Benson. ].
1. An agreement was made upon the
dissolution OF q partnership that two
members OF the old firm who took over
right to trade under the firm name of
George Harryman & Bro. and that the
other two would not use that name direct
ly or indirectly nor adopt a trade name
that would be deceptive or amount to a
stimulation of the one SO reserved: and
the two last named formed a new part
business and adopted the name Of Harry
man Bros. 1t is held that a finding of
the district court that the trade name of
the new firm was q stimulation of the for
mer firm name should be sustained
In clause OF the dissolution agree
ment two of the former partners who re-
served the firm name agreed that II they
could 90 SO on terms as satisfactory as
they could obtain from others. they would
purchase such Illinois broom corn as they
might REQUIRE from the other two who
agreed that II they should act as agents
Of the two first named in buying broom
corn, they would do so for a stipulated
commission. The answer pleaded this
clause and alleged that 1t had been vio-
lated by the two first named who are
plaintiffs in this action, in that they had
purchased broom corn in Illinois, but had
ants (the other two) also that the plain
THIS had purchased the commodity
through other agents without giving the
Defendants an opportunity to act fol
them. The answer contained no allega-
ton that the defendants had the commod-
ity to sell. nor OF any OFFER to sell, or to
act as agents in making purchases. nor
OF readiness to do either. No injury, loss
or damage was asserted or claimed It il
held that an order striking out the part
OF the answer pleading this clause Is moi
Burch. J.. Mason. J.. Smith, J. and
West. J., concurring.
Johnston. c. ]. and Porter. J., dissent
ing.
a true copy.
Attest: d. A. VALENTINE,
lSeaL] Clerk Supreme Court.
No. 1907
c. E. Ross, ct al. Appellees,
Lloyd F. Cox. Appellant.
Appeal from Comanche County.
AFFIRMED.
| Syllabus. BY the Court. Mason, ]
The evidence held to support a judg
ment for the specific performance of 4
contract for the exchange Of real estate
and the exclusion Of evidence held not t.
have been MARTIAL error.
All the Justices concurrlng.
| Attest D. A. VALENTINE,
| lSeal1 Clerk Supreme Court
| The State Of Kansas. on relation Of Ethe
| Beason. Appellee.
| William w. Law. Appellant
Appeal from Marshall County.
! AFFIRMED.
Syllabus By the Court. Johnston. C.
ternsty OF a child and to provide for it
maintenance and education. where tn
relatrfx claimed and testified that a chilt
born to her, which was about the weigh
and size Of one born at the end OF tn
ordinary period OF CESSATION but which
bore some evidences OF permatur1ty, wa
begotten two hundred and seventeen day
before its birth. it can not be held tina
her claim Is an impossibility under tn
laws OF nature, and. further, 1t ia hell
that the testimony in the case was SUM
o3a IN 1lpho1d ho verdict that az,
dered.
2 The proceeding is essentially a civi
one in which the rules OF evidence are &
be applied the same as in civil cases AM
hence no more than q preponderance o
the testimony II required to establish con
tested facts.
warranted in telling the jury that tn
failure of one party to call certain
person as q witness warranted the infer
ence that his testimony. If produced
ty since the testimony was equally avail
able to both parties and there were salts
factory reasons for not calling the persol
i l. No error was committed in the Civ
ing Of an instruction to the effect that II
passing upon the credsbflity of witnesse
and in considering and measuring tn
testimony in the case the jury might US
such knowledge as they possessed In com
mon with men In general.
All the Justices concurx1ng.
II A true copy.
Attest: D, A. VALENTINE.
fSeAL1 Clerk Supreme Court.
II No. 1919
ii The State, Appellee,
il Chet Mooney. Appellant.
Appeal from Cloud County.
II REVERSED
Syllabus BY the Court West. J
1. Under section q of the crimes &C
(Gen. stat. 1909, sec. 26e0) burglary an
larceny may be charged In one count. an
an information thus drawn il not subjec
to motion to Quash or to require separat
| counts.
2 In the trial Of the defendant charge
] with burglary and larceny in q freight cal
the state introduced in evidence a 80
i record made and kept In the usual wa