davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1883.

No. IL, 889.
b. Hohhines and George Nolan, Partners
as Honhines & Nolan, Appellees,
c. e. Thorson. Joseph Aurell and Paul
Aurel1, Appellants.
Appeal from Shawnee County.
Second Division.)
REVERSED.
Syllabus. BY the Court West J.
l. real estate agent who represented
Doth parties In an exchange of merchan-
disc for land can not recover d commis-
sion from either without showing that
both were fully appraised Of the situa-
ton and had knowledge of every circum-
stance connected with his employment in
SO far as the same would naturally affect
his action as agent.
2 II Is not enough that one principal
be willing that the agent set for the other
also. 1t must appear that such dual
agency was fully known and freely con-
scented to by both.
8. In an action to recover commission
from one principal 1t was alleged that the
plaintiffs acted for both with the knovvl-
edge and consent of each, but the EVIL
dence failed to show such knowledge.
Held. that a demurrer to the evidence
should have been sustained although
fraud was not pleaded in defense to the
action.
All the Justices concurring.
A true copy.
Attest. d. A. VALENTINE
lSealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1924.
The State of Kansas, Appellee,

No 1924.
The State of Kansas, Appellee,
vs..
Mary v. King. Appellant.
Appeal from Saline County.
AFFIRMED.
Syllabus. By the Court. Burch. ]
The decision in the case of The State ".
Adams 50 Kan. GA, relating to the con-
stitutionality of the act providing punish
ment for persistent violators of the LIQUOR
law and the decision in the case of The
State v. Schmidt, % Kan -, relating
to the definiteness and certainty OF infor-
nations drawn under that act, approved
and followed.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[SealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
LEGAL

the plaintiff when the horse which she
was driving became suddenly frightened
at an approaching automobile and backed
over the wall
C. The conditions being such that in
jury to users of the highway was reason
ably and naturally to be anticipated.
tainei by the Township trustee by per-
sonal observation while repairing tho
road constituted notice Of defect.
init the subject Of contzibutory negligence
on the part Of the plaintiff to the jury.
2 The decision in the case of Campbell
thorixed the court to approve the gen.
eral verdict, complained Of Al q Quotient
verdict.
All the Justices concurxing
A true copy.
Attest: D. A. VALENTINE.
(Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. M.lM,

No. 1905.
The Board Of County Commissioners Of
the County Of Wyandotte, Plaintiff.
VS.
W. E. Davis. as State Auditor etc.. ct a..
Defendants.
Original Proceedings in Mandamus.
WRIT DENIED.
Syllabus. BY the Court Maaon J.
i. A statute In relation to the construc-
ton Of bridges by the county. which pro-
vides that the county surveyor, when so
directed by the board Of commissioners
shall prepare plans therefor and make an
estimate OF the cost. and that no contract
shall be let for Z greater amount, In effect
forbids the letting OF a contract without
such estimate having been made
z. The requirement concerning such
estimate is not met by the making of an
estimate by an engineer selected by the
commissioners. under a provision Of the
statute authorizing them to employ engi-
neers to assist the county surveyor In pre-
pairing plans or superintending the con-
struction OF such bridge.
3. Where through the use OF defective
material In Its construction q county
bridge has to be rebuilt at the cost Of the
county, the commissioners are justified
by virtue OF that fact in refusing to re-
gard the contractor who built it AZ go
sponsible," within the meaning Of that
word as used in the statute REQUIRING q
contract to be let to the lowest responsi-
Bile bidder. Notwithstanding any evidence
that may be offered CONCERNING Iie
solvency and efficiency.
All the Justices concurr1ng.
true copy.
Attest: d. A. VALENTINE.
tseaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
LEGAL.

prejudice to an action at law to recover
damages for tho use Of the wall. Held.
not error.
2. Unnecessary statements or fecitals
in the journal entry Of such an order of
law.
3. A journal entry speaks as Of the date
the Judgment was rendered. and Its
validity IL not impaired by the expira-
ton Of the term In the meantime.
All the justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
d. A. VALENTINE.
Clerk Supreme Court

No. 1867.
Lewis N. Bowen. Appellant.
VS.
Charles F. Wilson, Appellee
Appeal from stafford County.
DISMISSED.
Syllabus, BY the Court Porter. !.
Where the only error complained OF -
the overruiinR Of a motion to dismiss an
appeal from the probate court upon facts
which are not disputed. the time In which
the defeated party may appeal TO TINS
court commences at the date of the order
of dismissal, and the filing of motion
for a new trial being unnecessary 1t can
not serve the purpose OF extending the
where the case is not brought to this
court within the time allowed by the
statute for an appeal. the proceeding VIII
be dismissed.
All the Justices concurr1ng-
A true COPY. To-
Attest d. A. VALENTINE
TSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
LEGAL.


No. 1851.
y. Rockwell, Appellee and Bernard
O'Malley ct al, Intervenors, Appellants.
The City of Junction City ct al, APP
pelleeS.
Appeal from Geary County.
AFFIRMED. -
Syllabus. By the Court. Johnston, G. j..
/. An action was brought by a property
owner to enjoin the making Of a special
assessment to pay for the paving of a
street. More than thirty days after the
assessment was ascertained other property
owners interviewed in the action and
asked to enjoin the assessments made
upon their property. Held. that the &C.
ton begun by the original plaintiff before
the thirty-day statute of limitations had
II Il did not inure to the benefit of the in
tcrveling plaintiffs who came into the
case after the expiration of the statutory
period.
2. The word "shall'' as used in section
1430 OF the General Statutes of 1903, to the
effect that when resident property own
ers petition for the improvement of a
street the city council shall cause the
work to be done, Is not used in it's i'm
perative sense but is construed to mean
may.
All of the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
tSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. U.Ne

No. 1e.z76
The City OF Topeka, Appellee
T. c. Roberts. Appellant.
Appeal from Shawnee County.
(Dtvizion No. -
AFFIRMED.
Syllabus. By the Court Johnston, C. J.
Where the court in a prosecution for
tile unlawful sale of intoxicating liquor
has given an instruction in its general
charge. to the effect that unless every
fact and element of the offense IL proven
beyond q reasonable doubt the jury must
acQuit the defendant It IL unnecessary to
repeat the instruction and give another
making q special application Of the rule
OF reasonable doubt to the question
whether the liquor alleged to have been
sold was intoxicating.
All the Justices concurring:
A true copy.
Attest. d. A. VALENTINE,
lSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1887.
Lloyd Salisbury. Appellant.

Lloyd Salisbury, Appellant,
Almira Salisbury. ct al. Appellees.
Appeal from Brown County.
AFFIRMED.
Syllabus. BY the Court. Mason, ].
A will provided that a fund should be
placed in the hands of a trustee the in
come to be paid to a son OF the testator
during his life; that on the death Of tho
son IL he left no issue and the testator's
widow was dead. the fund should go to
the testators surviving heirs;'' that II
the widow were alive she should have
the fund for her life and it should then
go to the testator's surviving heirs:''
that If the son left issue they should have
the income for life. and at their death
the fund should go to the testator's sur
viving heirs HELD, that the will
should be construed els intended to vest
the title to sthe fund In the testator's
heirs upon the death Of his son. their en-
joyment Of it to be. postponed during the
life of the sons issue, ana that the fule
against the perpetuitieg was not violated
All the Justices con0urFaug.
A true copy.
Attest: ~ D. AVALENTINE.s
ISeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1908.
o. Maddux, Appellant.

No. 1903.
o. Maddux, Appellant,
Va
Appellee.
Appeal from Harper County.
AFFIRMED.
SYLLABUS. BY the Court Porter. J..
A broker was carrying 10000 bushels of
July corn for the plaintiff on margins.
BY the negligent failure Of the defendant
promptly to deliver q telegram notifying
plaintiff Of a demand for additional mar
GINS the transaction was closed out. In
an action against the telegraph company
to recover damages the rule that it Is the
duty Of an injured party to make reason
BILE exertions to help himself and thereby
reduce his loss is applied. and held. that
the measure Of plaintiffs damages. II he
sustained any. was necessarily the dtf-
ference between the price at which the
deal was closed out and the price at
which he could have reinstated 1t within
a reasonable time after notice: and the
fact being undisputed that the plaintiff
three days after notice that the deal was
closed neglected to avail himself of an
opportunity to reinstate his deal when he
could have bought corn at lower price
than that at which 1t was sold out, ne
sustained no damages by the defendant
negligence.
All the Justices concurrtng.
A true copy.
Attest: d. "A. VALENTINE,
TSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. la476,

NO. 1888
Charles Schwartx and Henry Schwartz, do
ing business under the firm name and
style Of Schwartx Brothers, Appellees
Gus Meschke, Appellant
Appeal from Clay County.
AFFIRMED.
Syllabus. By the Court. Porter, J.
1. In m action by real estate agents to
recover commission for procuring an OK
change Of defendants property an answer
consisting of q general denial will not en-
title the defendant to prove the aftirma-
tive defense that plaintiffs at the same
time were representing tho other party to
the exchange.
q On the facts stated in the opinion
It is held that the court rightly refused
to instruct upon the question Of dual
agency.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[SealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
d. A. VALENTINE,
Clerk Supreme Court.
No. 1856.

No. 1856
Josephine b. Thomas, doing business as
J. Thomas & Son. Appellant.
Vs.
r. HI. Warrenburg and 8. K. Warrenburg,
Appellees..
Appeal from Greenwood County.
s.f~AFFIRl6ED. -,
Syllabus. BY the Court. West. J.
1. Ordinarily an instruction which Inn
pliedly justiffes q larger verdict than the
law or the evidence warrants becomes
harmless when It appears that the verdict
returned was much less than it might
have been under the evidence and the law
correctly stated.
2 When the evidence clearly shows an
express warranty OF material purchased,
an instruction as to an implied warranty
may be- deemed immaterial.
3. mere defect in q building which
can be remedied by repair entities the
owner to the cost OF such repair and he
is not confined to q recovery from the
contractor OF the difference between tho
value OF the building as constructed and
it's value as contracted for.
All the Justices concurrIng.
A true COPY.
Attest: D. A. VALENTINE
tEeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. -, 26.
J. N. Miller, Appellant,

No. 1y.x6
T. N. Miller. Appellant,
g. E. Phillips. Appellee.
Appeal from Morris County.
AFFIRMED.
Syllabus. BY the Court West. ].
!. One claiming ownezBhip and posses
sion of q wall sought by Injunction to
prevent an adjoining proprietor from US
ing such wall, the latter claiming posses
sion and right to possession of . portion
thereof. The trial court found that the
defendant was solvent and had been led
by the plaintiff to believe that wall could
b used, and dismissed tho aCt3n0 without
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1888.
Grace E. Smith, Appellee,

No. 1882
Grace E. Smith, Appellee,
va.
Huber L. Cameron, ct ALL, The Social Ser
vice League, Appellant
Appeal from Douglas County.
AFFIRMED.
Syllabus BY the Court. Benson.
l. An oral agreement OF sister to re-
move from her parents home and live
with her brother as his housekeeper and
TO care for him, upon his promise that
she shall have his property at his death:
when faithfully kept by her. affords solid
grounds for the exercise of the power OF
a court Of equity by decree Tor SPECIFIC
performance.
3. After living with her brother in his
home for many years performing the
agreement referred to, the sister married,
and for eleven years lived apart from her
brother, until her husband died. wnen
She returned to her brothers home and
resumed her duties under the agreement
which she continued to perform Tor
long time and until his death inc
brother TN the meantime expressed salts
faction with her conduct and held her In
afYectfonate regard. In these circum.
stances the conclusion of the distf1ct
court that the agreement was In force at
the time Of the brothers death ID upneio.
All the justices concuxrang.
A true copy. u~,r,r
rCaeiI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
d. A. VALENTINE.
Clerk Supreme Court.
No. IS. 429.


C. j. Van Doren. Appellant.
Altoona Portland Cement Company. APP
pellee.
Appeal from Wilson County.
AFFIRMED.
Syllabus BY the Court Porter J.
I. In an action to recover for the al
legged breach Of a contract for services
the petition alleged that plaintiff made
an oral proposition to enter the employ
Of the defendant as superintendent for
certain salary and upon certain terms and
conditions including an option to pur-
chase certain shares Of the stock of the
defendant company: that the defendant
in writing afterwards accepted the PROPOSE
ton in a letter, a copy Of which was at
tached to the petition. The letter accept
ed the proposition relating to the option
on stock, but contained no reference to
the terms or substance OF any contract
demurrer to the petition was properly
sustained.
Q. While a contract may be embraced
in letters and separate writings the rela-
lions between the various instruments
must appear in the writings themselves
Parol evidence can not ordinarily be re-
sorted to for the purpose of establishing
such relation.
g. Certain copies Of letters were prom
erly stricken from the petition for the
reason that they were not signed by the
writing by the defendant to sign the
same.
All the justices concurrine.
A true copy.
Attest: D. A. VALENTINE.
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. Is, 916.
Mrs. Ella Sims. Appellee.

No. 1885.
Mrs. Ella Sims, Appellee.
w.
williamsburg Township. Appellant.
Appeal from Franklin County.
Affirmed.
Syllabus BY the Court BurchL J
]. The evidence considered and held:
A. 1t was . question Of fact for tho
jury and not . question Of law for the
stone retaining wan along the side next
to a steep creek hank was defective for
want Of Z barrier Of some kind to check
or restrain frightened horses from going
over the Wau.
b. The defect In the highway was the
appgux1ma&o cause oe injuries suffered ~
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1871.
: D. H. Hull, Appellee,

The Prairie Queen Manufacturing Com
pany. Appellant.
Appeal from Sedgwick County.
First Division.
AFFIRMED.
Syllabus. BY the Court West. J.
1. It is permissible to recite in an abb
stract that a motion for a new trial was
filed on all the statutory grounds and
also that the special findings did not sup
port the general verdict instead of setting
out the motion itself.
2. petition If literally construed de-
clared upon a rescission of a contract and
also for damages for breach thereof. The
defendant moved to require the plaintiff
to elect whether he sought rescission or
damages which motion was granted and
the plaintiff filed an amended petition
praying for RECESSION. no estoppel SO to
elect being pleaded or suggested except
by an objection to testimony under the
amended petition. Held. that the defend
ant can not be heard to claim that no
right so to elect existed.
submitted to the jury who reached the
right conclusion. Held. not materially
prejudicial that the court did not declare
instead of submitting such divisibility
of fact
4. 1t was proper to submit to the jury
part of an engine could practically be
treated as metallic piece within the
terms of contract for the sale of
threshing machinery.
tract and a return Of the purchase price.
whether or not a jury could have been
demanded as a matter Of right, 1t was not
error to submit the issue to a jury and
| receive verdict and answers to special
questions.
6. Whether the seller Of threshing ma
chinery under a contract providing that
failure to pay the notes given therefor
when due or keeping the machinery GER
tain time should constitute a full release
and waiver of the warranty has been
notified Of re ~ hos md
repeatedly attempted to remedy them.
the purchaser may retain and try the
machinery a reasonable time without
waving the warranty. and ordinarily tho
reasonableness of such time is for the
jury.
T.. Such Promise and attempts when
made by the general manager OF the SELL
ing company are to be treated as made
by the principal and not as II made by an
agent without authority to vary the
| terms of the written contract OF SALE
Johnston, c. J.. Burch, j.. Mason, J..
/ Smith, j., Benson, j.. concurring.
| Porter j.. dissenting.
A true copy.
| Attest: D. A. VALENTINE.
lSealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1e,Sa6.
+. b. Martin, Appellee.

No. 1855
I. b. Martin, Appellee.
The Atchison. Topeka and Santa r. Rail-
way Company. Appellant.
Appeal from Hamilton County.
syuanus. p the Court Porter, J.
to exerciee reasonable, or ordinary care
to keep its cattle guards from becoming
So filled with snow and ice Al to make
1t possible for animals to cross them. and
for negligent failure In this respect the
company ID liable for injuries to animals
thus getting upon its right-of-way
2 Where railway company has erect
sufffcient cattle guards to prevent stock
from getting upon its right-of-way, the
question whether It was negligent In fall
ing to keep its cattle guards from b.
coming So filled with snow and leo a. to
make 1t possible for animals to GROSS
the same depends upon the facts and cir
cumstances. and II q question for the
jury to determined under proper instruc-
tons.
Z In IN action to recover for animals
injured on the r1ght-of-way where the
facts are as stated in the preceding para
graph, and plaintiff RECEIVERS on the sole
ground Of the negligence Of the railway
company In failing to remove snow and
ice from its cattle guards. tho plaintiff u
not entitled to an allowances Tor attor-
ney's fees.
Johnston, c. J., Mason. T.. Benson. J.
and West. J., concurring.
Brch. J. and Smith. J.. dissenting spe-
cially.
Attest. D. a. VALENTINE
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09

No. 1883.
d. NJ. Rothweiler. Appellee,
Z. g. Mason. ct al. Partners. etc., ct al.
wv. l.. Johnston, ct al. Appellants>.
Appeal from Johnson County.
AFFIRMED.
syllabus. BY the Court. Mason, ].
l. An attachment affidavit which IN de-
fective by reason of failure to state the
nature of the plaintiffs claim may be
amended in that regard after the levy has
been made.
2. The fact that possession of personal
property has been obtained by the Civ
Ing of a replevin bond does not prevent
Its being taken on an order Of attach
ment issued against both claimants.
All the Justices concurr1ng.
Attest: d. A. VALENTINE.
ISeai.J Clerk Supreme Court
No. 1885.
Preston A. Hilderbran, ct al, Appellaes,
e. E. McCorkle. ct al, Appellants.
Appeal from jackson County.
AFFIRMED.
Syllabus Rv the Court Smith r
Where a verdict IL based entirely upon
items in one OF two causes Of action
pleaded. this court on appeal will not con-
slider any assignment Of error which per-
tains only to the other cause Of action
and which in no way affects the appel
lants.
An the justices concurring
Attest: d. A. VALENTINE
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
LEGAL.

~ - fhe nersonsI ,,ro,,s H-c
ages for default should be tried after
ward, upon a modification Of the plead
ings to more clearly present that issue, IL
not erroneous.
All the Justices concurrine:
A true copy.
Attest D. A. vALENTANE,
lSeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
s. No. 1882.
Aleck Knipe, Appellee,


va.
Paul Troika and Gertie L. Troika. An
pellants.
Appeal from Comanche County
AFFIRMED.
Syllabus. BY the Court. Benson. J.
/. A contract for the conveyance Of
real estate containing a provision that
the deal is to be closed within sixty days,
no other limitation of time being stated,
does not. upon its face purport to make
time Of the essence of the contract.
2. II in connection with the language
and conduct of the parties, the time
stated in the clause referred to should be
held essential, q waiver was properly in
ferred from the subsequent conduct Of the
parties.
3. Where the time for performance Of
such q contract Is waived and no other
period is fixed, a reasonable time for
performance should be allowed.
4. In an action for the specific per-
Torrance Of a contract to convey real
estate. and as q minor consideration. to
deliver personal property also, an order
made upon the trial Of the principal is
sue. that questions concerning the deliv-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-09
No. 1880.
on K. Gleason. Plaintiff,

No. 1880
Theron X. Gleason. Plaintiff.
The Board of County Commissioners of
Sedgwick County, Defendants.
Original Proceeding in Mandamus.
WRIT DENIED.
avllabus BY the Court. West. J.
The granting Of pensions by the board
of county commissioners to persons de-
scribed in chapter 146 Of the Laws Of 1911
and chapter 149 Of the Laws OF 1913 Is not
mandatory but discretionary.
All of the Justices concurrfng.
A true copy. "
Attest: d. A. VALENTINE.
TSeal1 Clerk Supreme Court.