davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1S.7S5.
w. e. Gault, Appellee,

The Atchison, Topeka and Santa Fe Rail-
way Company. Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus. By the Court. Smith. J.
Where cattle. shipped on a railroad to
market, are unreasonably delayed in
transportation and arrive about four
hours after they should have arrived If
transported at the rate of fifteen miles
per hour; and. by reason of the delay and
the closing of the market. the cattle are
held until the following day and a shrink
age of about twenty pounds per head re-
suits therefrom. damages should be al
lowed therefor and 1t Is immaterial
whether or not the notice required by the
shipping contract is given at the time of
the arrival Of the cattle.
All the Justices cOncurr1ng.
A. true copy.
Attest: d. A. VALENTINE.
CSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
LEGAL.
No. Is. 763.
p. X. Beal, Appellant,

No. 1S,76S.
p. K. Beal. Appellant.
Frank Childress, Don Moore. Anne r.
Swain, Appellees.
Appeal from Cherokee County
AFFIRMED.
Syllabus. BY the Court. West. J.
Certain residents OF Kansas procured
IN Arizona charter for q mining company
providing that the principal place OF busi-
ness in Arizona should be at Phoenix
md the principal office outside Of Arizona
should be at Galena, Kansas, and that the
company could have such other On1ceS
~ the board Of directors should estabAen.
The laws Of Arizona were compiled with
and the incorporators proceeded to hold
Z meeting at Galena, all being present.
ing one president and another secretary
and treasurer. and adopting full set
OF by laws. The stock was all Subscribed
and paid for in full and the company en-
tered upon and conducted q mining busi-
ness. and the plaintiff while in its employ
was injured for which injury he brought
suit and recovered judgment Finding tnat
ascertaining that the requirements OF the
Kansas statutes touching foreign corpora
tons had not been compiled with In any
respect, he brought this action to hold the
incorporators individually liable. Held.
that the failure to observe the Kansas
requirements did not avoid the corpora
ton or justify a holding that the tncor-
porators were fraudulently using the
charter as a shield from personal la
bility.
Ali of the Justices concurring.
A true copy.
Attest. D. A. VALENTINE.
CSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
-ti
LEGAL.

order upon the holder Of the legal title to
tn latter to pay such surety all money
received from the sale thereof above q
certain amount, which order was assent
ed to by such holder. In this situation q
judgment creditor brought suit to subject
the land to her Judgment gainst the prin-
surety intervened and. paying on the note
in fulls sought q lien on the land to Sc
cure himself. The trial court found that
the legal title was held for the use and
benefit of the principal who owned the
land-that the surety was entitled to a
lien thereon and the Judgment holder to
the next lien. and ordered the land sold
to satisfy the claims against it. Held,
tnat such surety was entitled to the relief
granted him.
All OF the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1874.
Mrs. J. E. Bisby. Appellant,

Mrs. J. E. Bisby. Appellant,
Frank J. Qinby. ct al. w. H. Dodderidge.
Interpleader. Appellees.
Appeal from Morris County.
AFFIRMED
Syllabus. BY the Court. West. J.
A surety was induced to sign q note by
an agreement that the land to be pur-
chased with the proceeds should be sold
and the note paid. Failing to secure per-
Torrance Of the agreement he obtained
from the principal who had disposed Of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
LEGAL.
ORDINANCE NO. 1929.

in The Topeka State Journ
April IA. 191A1
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. Is. 79S.
Frank D. Shade, Appellant,

No. Is, 708.
Frank D. Shade, Appellant,
vs..
Tne Ash Grove Line and Portland Cement
Company. Appellee
appeal from Neosho County.
REVERSED.
syllabus. By the Court Benson, J
a. L The original Workmen's Compensa-
tAon ACT laws 1911. chap. 21S. as amend
ca by chap ZIG. Laws 1879 leaves an en-
pI0yee in industries within its purview no
Utner remedy than the one provided by
the act. where neither the employer nor
employee has filed statement Of his
eiect1on not to accept hereunder.
z Where a petition stating q cause Of
action under the Factory Act charges
nSgneence, but discloses a situation in
which a recovery can only be allowed un-
Gee the Workmen's Compensation Acts.
the tne district court having Jurisdiction of
the parties and subject matter, should not
dismiss the action but should retain it for
tne remedy to which the plaintiff may
prove his right.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINES
tSeaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. Is, 756.
nnd Gamma Z

No 1876.
The schump Land Company, Appellant.
VS..
Anna Probst Executrix Of the Estate OF
John Probst, deceased, Appellee.
Appeal from Kingman County.
REVERSED.
Syllabus. By the Court Porter. :.
The action was on a promissory note.
The defense was want Of consideration
and was interposed by the administratrix
Of the deceased maker Of the note. Held.
that as no competent evidence was Of
Tered in support of the defense the court
should have sustained the demurrer to
defendants evidence.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
rSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. Is, 731.
Carrie May Hawkins, Appellant,

NO. 16S lSl.
Carrie May Hawkins, Appellant,
Stina Hanson, ct al, Appel1ees.
Appeal from Phillips County.
AFFIRMED.
Syllabus. BY the Court. Porter, J.
L The rules Of construction applied to
wills by this court in numerous cases
recognize that each will must be con-
strued by its own terms, and that where
there is any ambiguity in the language.
the court must as far as possible, put
itself in the position Of the testator, TAX
ing into consideration all the circum-
stances under which the will was exc
cuted, the condition OF the testator's
family and his estate:. and from all the
facts and circumstances find what his in
tention was. (Safe Deposit Co. ". Stitch,
81 Kan. 474, 50 Pac. 1882; Hurst v. Weaver,
Is Kan. 758, 762, 80 Pac. 297.)
2. Applying the same rules Of construc-
ton to the present case It is held that the
testator's intention was to devise to his
wife life estate in certain lands with
remainder to Andrew Hansen. provided
Andrew Hansen compiled with certain
provisions named in the will.
! 8. Upon the facts stated in the opinion
it is held that there was q substantial
compliance with the conditions named in
the will and that the title to the real
estate il in the heirs at law OF the re-
mainder man.
All the Justices concurring.
+ A true copy.
Attest, D. A VALENTINE,
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

No. 1853
In Tho Matter Of The Insanity of Swan
johnson.
Appeal from Shawnee County.
division Two.)
JUDGMENT AFFIRMED.
Syllabus. By the Court. Benson, J.
/. Where, upon proceedings in q pro-
bate court appearing on the face Of tho
record to be regular, q person has been
found to be insane and has been placed in
q state hospital as provided by statute,
that court is not bound to set aside the
adjudication, and try the matter anew on
the motion OF the patient based upon his
allegation that he was not insane when
the adjudication was made.
2 A general allegation that a patient
was committed to the hospital through
fraud and conspiracy Is insufficient to
present any issue. In the absence of any
statement Of facts showing fraudulent
conduct.
All the Justices concuFring.
Httest: D. A. VALENTINE,
TSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1871

No. 1916.
N. r. Doty and c. e. Doty. Appellants
D. s. Shepard, Nellie P. Shepard. Emma
partners as Wilbur & Ross, Appellees
Appeal from Shawnee County.
First Division.
Affirmed in Part and Reversed in Part
Syllabus. By the Court. West. J.
1. The rule that amendments to con-
form to the proof are discretionary with
the trial court-fOllowed.
2. A suit to quiet title to real estate
on the theory that the debt for which II
has been held as security has been paid,
having been fully tried with all the par
ties before the court, should be deter
mined according to the facts shown, al
though in order to do SO certain tncon-
sistencies in the pleadings and certain
shifting OF position of the pleader not in
vOlving the real nature OF the controversy.
must be disregarded.
3. While certain real estate was held
as security for a debt the owner and the
holder arbitrated all their matters, and
entered into a written contract to carry
the award into effect but failed SO to do.
HELD. that while an action to enforce
such award would have been barred in
five years a suit could thereafter be main
tanned to quiet title to the real estate on
the ground that the debt had been paid.
and in such suit the award and contract
could be regarded as q basis fixing the
rights OF the parties at the time they
were made and should be considered to-
parties in order finally to determine their
rights in the property.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seal.J Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

|. LEGAL. ..
applied to recommendation sureties. :
Such . company II not relieved Of Al
cure the performance Of : builders con-
tract by reason Of tho failure Of the
obligee to give notice. according to the
builder to e eonpess e. bnildns q Within
the time specified where such failure re-
suited in NO actual loss or prejudice to
the bond peovi SS thst NO iisSiIity snaii
attach to the company unless such notice
be given within . certain time after the
Johnston. c. J.. Burch. J.. Mason. T..
Bension, J.. concurring.
Porter. J.. and West. J.. dissenting.
Attest: d. A. VALENTINE.
Dseall Clerk Supreme Court
No. 18,7m.
w. e. Dixon. Appellee.
W..
q. r. Tyres. ct al, Appellees.
and
Harry Moomaw, Appellant.
Appeal from Sedgwicl County.
AFFIRMED.
Syllabus BY the Court. Burch. J..
/ Under section 3d. General Statutes.
1903. q chattel mortgage of an automobile,
. not recorded and not accompanied by Inn
, change of possession Of the property. Is
absolutely void as against q subsequent
m0rtGagee In good faith although the
subsequent MlortgAge IL not filed for rec
ord and possession is not taken under It.
2. The fact that the holder Of the mort
Gage first given obtains possession Of the
automobile from the owner Of q barn
where the mortgagor kept It, and records
his mortgage before the other mortgage is
recorded and without knowledge of its
existence. does not validate his mortgage
and give It priority.
3 To accomplish the result just stated
the holder Of the mortgage first given
must take possession or file his mortgage
for record by virtue of joint action with
the mortgagor. In that event the mort
gage has the effect of a MORTGAGE given
the day possession is taken or the tnstru-
ment IL filed for record and 10 given
priority by the statute over tie unrecord-
ed mortgage.
4. The term creditors used in the
statute referred to. which gives creditors
the same status as subsequent pur-
chasers or mortgages in good faith,
does not mean general creditors but only
those who have perfected right to ap-
propriate the specific property, AZ, for
example, by attachment or execution
levy.
All the Justices concurring.
A true cony.
Attest d. A. VALENTINE.
rSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1A723.
F. e. Wood. Appellant.

NO. 1A1zS
r. E. Wood. Appellant,
VI.
N F. Shaw ct al. Appellees.
Appeal from Pratt County.
REVERSED.
Svllabus BY the Court Mason. J.
a father Of two infant children upon
the death of their mother placed them
with her parents under an agreement
that they should remain there until four
teen wears Of age. Four years later the
father. having remarked. sought to re-
gain their custody. Held. that he was not
bound by the agreement. and being q
proper person for the purpose. was en-
fftled to have them restored to him.
Johnston, C. J.. Burch. J.. Smith. J.. and
West. J.. concurring-
Mason, J., and Benson, J.. dissenting
A true copy.
Attest: d. A. VALENTINE.
fSeal1 Clerk Supreme Court
No. 1865.
School District No / of Clark County.
Kansas, Appellee,
Massachusetts Bonding 4 Insurance Com
pany, q Corporation. Appellant
Appeal from Clark County.
AFFIRMED.
Syllabus BY the Court smith: =
l. A bonding company engaged In the
business OF insuring the performance Of
contracts Of others for pay IL not ''fav-
orifo at tho law IN The sense the oerm -
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

No. 1916.
The State Of Kansas, Appellee,
Robert T. Powers. Appellant.
Appeal from Doniphan County.
AFFIRMED.
Syllabus. BY the Court. Benson. ].
l. In case Of an assault made on pur-
pose. OF malice aforethought, with q dead
~ weapon. with intent to kill, as defined
IN section 80 Of the crimes act, (Gen. Stat.
!909. Sec. $3.50 the punishment prescribed
In that section Is authorized although the
assault ID also willful, deliberate and pre-
meditated.
z In a prosecution under section So
above referred to. 1t Is not error to refuse
an instruction embodying section n, (Gen.
stat 1903. Sec. $500 where there 10 nc
evidence to sustain q verdict Of guilty
under the last named section
B. An objection to evidence Of the dec
larations of the person injured in such an
assault IL examined, and no error Is found
In Its admission in the situation shown.
All the Justices sconcurring:
A true copy.
Attest d. A. VALENTINE.
lSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

No. 1852.
Samuel r.. Fatrbank ct al, Appel1ee8,
Rudolph Fairbank, Appellant. and Eliza
Carter ct al. Appellees.
Appeal from jackson County
Syllabus. BY the Court Mason. J.
/. The evidence examined and held suf-
ficient to support a finding Of undue in
fluence in the execution OF q deed and q
will.
2. Assignments Of error with respect to
trial rulings examined and held not to re-
quire reversal.
All the justices concurring.
A true copy.
Attest D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1s,7sk
c. Dyson. Appellant,

No. 1S,7sk
G. Dyson, Appellant,
B. r. Bux. ct al, Appellees.
ppeal from Shawnee County.
,Division No. 1.
AFFIRMED.
syllabus. By the Court. Johnston, C. J.
l. While ordinarily a decision made by
= court In case settling q rule of law
enouAo pc regarded as binding in q later
tIlal OF the case such a decision is CO.
extensive e only with the facts ON which 1t
the language used in an exception in =
ueSo OF conveyance, 1t is held that the
sener or city lot did not effectually re-
seve 20 himself a part OF a wall erected
Al the justices concurr1ng.
Atttest: D. A. VALENTINE,
tceaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
D. A. VALENTINE.
Clerk Supreme Court.
No. 1851.
R. F.. Chambers ct, al, Appellants,

NO. 18s667.
r. f.. Chambers ct al. Appellants.
The Land Credit Trust Company. ct al,
..,.., ~, Apgel i County
Division No.
AFFIRMED.
Syllabus. BY the Court Benson. J.
1. An action was brought by bondhold-
trust company which had received col
lateral mortgages on deposit and certified
the bonds secured thereby. The petition
alleged negligence. and mismanagement
Of the trust, whereby the withdrawal OF
vale mortgages and the substitution OF
worthless ones had been permitted. The
directors of the trust company were
Joined as defendants. against whom the
same charges of negligence were made.
Discovery and application of assets and
were sought, together with a personal
judgment against the trust company and
the directors. Judgment was rendered
that the defendants should account Tor
100000. which should be applied prorata
in payment Of the bonds amounting to
more than double that sum. which bonds
should thereupon be cancsi 60. , Tme
holders to this disposition. and the pay
ment Of $4,000 of the amount into court
by the Individual directors who were
Of the trust company for reimbursement.
The remaining $4,000 was paid by the
mortgage company. and tho trust com.
y.
by stockholders Of the trust company
against the individual directors alleging
Encouragement and negligence substan-
tally as in the former suit: and. the
wrongful appropriation Of the. assets OF
the trust company to the payment Of the
judgment rendered against them. The
prayer was for an Injunction: for an ac-
counting and restoration of the assets so
appropriated, and for personal Judgment
The plaintiffs pleaded the former judy
ment against the directors as an ad-
Indication of their negligence Parol evil
dence was admitted tending to prove that
the former judgment was rendered upon
a compromise without any determination
OF the charge OF negligence, and the court
found that the directors were held liable
in the first action because they held as
sets Of the trust company after 1t had
ceased to do business. It il held that the
former adjudication is not conclusive of
the directors negligence.
2 Upon an examination Of the EVIL
dence and finding Of the district court
that it did not prove the negligence al
legged is sustained.
All the Justices concurring.
A true copy.
Attest: %. A. VALENTINE.
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
d. A. VALENTINE.
Clerk Supreme Court.
No. 1878.
Charles Lundstrom, Appellee,

NO. IL, 7SS.
Charles Lundstrom, Appellee.
Va.
A. L. Branson Sheriff, and J. D. I4arabee.
Appellants.
Appeal from Cowley County.
AFFIRMED.
Syllabus. BY the Court. West. J.
1. The use Of writ of assistance in
chancery practice is usually limited to
cases in which the rights OF the parties
to the possession Of the land in contro-
versy have been settled by the decree OF
the court issuing the writ, and in such
cases it is issued to carry the decree into
effect and to save another action or pro-
ceeding to acquire possession.
2 The writ as a rule never goes except
in cases substantially free from doubt as
to the right Of possession, and 1t should
not be used to put in possession pur-
chaser at an ordinary execution sale OF
land levied upon to satisfy q general
Judgment, and certainly not when a fair
question as to the validity Of such judg-
ment Ia involved.
All the Justices concurxing.
A true copy.
Attest: d. A. VALENTINE.
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

No. 19196..
The City OF sEmporia, Appellee,
The Eaporia Railway ana Light Com
pany, Appellant.
Appeal from Lyon County.
AFFIRMED
syllabus. By the Court. west !
!. A street railway company may be
compelled by mandamus to restore its
track to a condition that win present no
obstacle to the use and travel as q public
thoroughfare Of paved street over which
1t has been laid, although the cause OF its
defective condition, is due to a faulty
method Of paving employed by . paving
company pursuant to a cont<act with the
street railway company, and although the
city engineer suffered such method to be
used without protest
2 The obligation thus to restore its
track to proper condition devolves upon
the street railway company. regardless Of
Its charter or franchise or contract with
the city, as one of the common law duties
which it owes to the city and to the pub
lie, which may be enforced by mandamus
notwithstanding the city has q contract
right to make the repair and sue the rail-
way company therefor, and may also
have the right to look to the paving COM
pany and its bondsmen for damages.
and Benson, j., concurrfng.
Burch, J. and Porter, j., dissenting.
A true COPY.
Attest: d. A. VALENTINE.
lSeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. 1S,75S.
c. A. Nicholson, Appellee,

WIN. Ferguson. Appellant.
Appeal from Mcpherson County
AFFIRMED.
Syllabus BY the Court. Benson. J.
L In an action upon a promissory note
evidence of the value of shares of stock
for which the note was given Is
inadmissible under an agreement that de-
auctions should be made from the note
for any just claims outstanding against
the company whose stock was sold, not
shown upon it's books.
2 It was not error to exclude evidence
offered tending to show that the Milling
company had put up flour in sacks brand
ed to indicate a superior quality, In the
absence of any offer to prove that the
flour had been sold according to the
brand or that loss had resulted from the
deception, or that claims had been made
therefor.
g. When a claim presented against the
Milling company after the sale. had been
reduced to judgment, the claims previous
" made for a larger sum and correspond
ence relating thereto were not admissible,
the Judgment having determined the
amount
4 Where the issues involved the allow
ance or rejection of a large number OF
Items the discretion of the district court
In submitting a corresponding number OF
special questions will not be interfered
with. no prejudice nor confusion being
shown.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[seal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
LEGAL.


No. 1&7N.
C. T. Aonckton, Appellee.
st Louis Z San Francisco Railroad Com
pany Appellant. y
appeal from Bedgwick County.
Otviaion -
AFFIRMED.
SyMaous By the Court Burch J..
Inc evidence considered and held suf-
lscient 70 warrant submission to the jury
=. LOST ume, impaired earning capacity.
rutoIe pain. and permanent injury az ele-
1 Snts OF damage: also to furnish . suf-
Icent foundation for the admission OF
certain impeaching testimony.
All the justices concurring.
A true copy.
Attest: IA VALENTINE
lSeal.1 clerk Sunreme Cont
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14
No. Is, 783.
J. T. Hopper, Appellee,

No. 10. 783.
J. T. Hopper, Appellee,
H. T. Fromm, Appellant
Appeal from Cowley County
Syllabus. BY the Court. Mason J.
A written award made by two out Of
three arbitrators, there being no agree
ment that a unanimous decision shall be
necessary. is binding, by virtue OF the
statute providing that persons may sub
init a controversy to arbitration and that
the award shall be made in writing by
the arbitrators or q majority Of them not
withstanding these provisions Of the stat
ute were not complied with; that reouir-
ing any bonds given to state the time and
place OF the meeting of the arbitrator.
that requiring the arbitrator and wifi.
nesses to be sworn; that requiring q COW
Of the award to be delivered without de-
lay to each party; that requiring the 6eea
taxed to be stated in the award.
All the Justices concuEr1nG.
A true copy.
Attest: d. A VALENTINE
tsealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-04-14

No. IL, 296.
Smith, Carey & Company civilian Nc
Dermott, interviewer, Appellee)),
VS..
The Atchison Live Stock Company, ct al.
CIV. J. Bailey, as Receiver, ETC., Appel
lant).
Appeal from Atchison County.
On Rehearing.
REVERSED.
Syllabus. By the Court. Smith, J.
Where evidence in writing is shown to
have existed which would establish q fact
very material in the trial of an action
ana such writing Is admitted to have been
In the possession of a party to the action
whose liability in large sum may depend
upon the words in the writing. 1t IL error
to admit other evidence OF the contents
Of the writing until 1t fairly appears that
the writing IL lost beyond recovery or has
been destroyed.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE,
lSeal.1 Clerk Supreme Court