davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.

membranes, The petition pleaded brood
ly compliance with the terms OF the
policy. The answer pleaded the condition
against membranes The reply - w
the facts stated. A motion to strike out
the reply for departure was oyerruled. A
trial on the merits followed and the plain
tin recovered. HELD, the defendant was
not prejudiced in its substantial rights
because Of the departure.
s. After the insured property burned
special agent Of the defendant procured
the plaintiff to Sign an agreement TO sur
render the policy and to accept 800 IN
full settlement OF his claim. The plaintiff
did not surrender the policy, the defend
ant did not pay or offer to Day the 800.
and further negotiations for settlement
followed which induced the plaintiff to
believe that the defendant had abandoned
the compromise agreement and to act ac-
cordingly. HELD. sufficient to constitute
a waiver Of the agreement.
T. A variance between the pleadingU
and the proof respecting waiver of the
compromise agreement held not to b
prejudicial
All the Justices concurT1ng.
A true copy.
Attest: ID. A. VALENTINE.
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.

First published in Tho Topeka state
Journal May II, 1884,
PROPOSALS.
Sealed proposals will be received ut the
office Of the city clerk until nine thirty
O'Clock a. M, Monday, May u, 1914 for
the construction Of the Comfort Station
in Garfield Park, as Per, plans and
specifications on file in said city clerks
office.
A certified check in the sum Of two
(1g6) per cent Of the bid must accompany
each proposal
The board Of commissioners reserve the
right to reject any or all bids, or parts
Iseai.1 c. b. BURGE. City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
No. 1870.
John T. Giles. Appellee,

No. 1879.
John T. Giles. Appellee,
The A. T. & s. F. Ry. Co., Appellant
Appeal from Sedgwick County.
Division No. l.
REVERSED.
Syllabus. By the Court. Porter, J.
l. A shipment of live stock under the
usual contract provided that as cOndi-
ton precedent to the. right to recover
damages for loss or injury to his stock
during transportation the shipper should
give notice in writing of his claim before
the stock was removed and intermingIed
with other stock In an action to recover
for damages on account of delay in trans
portation brought under sections ZIG.
III, General Statutes 1909, requiring car
riers to transport live stock at an average
rate Of speed Of not less than fifteen miles
per hour. held error tor the court to
charge that If the damages were the d.
rect result of the failure to comply with
the fifteen miles statute then the contract
requiring notice was no defense
z. Upon the facts stated in the opinion
1t is held that the loss and injury on ac-
count of delay in transportation by which
emaciated and after being unloaded be-
came restless and in unfit condition and
refused to take the usual and customary
fill in order to put them In primo condi-
ton for sale was a loss occasioned dur
ing transportation, and that notice of
such a claim was required as q condition
precedentsto the right OF recovery.
All the Justices copcurrtng.
A true copy n.
Attest: d. A. VALENTINE.
(SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.

No. IL, $50.
No. 1883.
Richard D. Harlan, as Executor OF the
Estate Of Phineas Prouty, deceased,
Appellee,
VS..
Sanford LOOMS. Appellant.
Appeal from Lyon County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. J.
/. An amendment Of a petition to cor
rect the mistake Of pleader which mere
" substitutes one party for another as
plaintiff does not change the cause OF &C
ton.
Q Such amendment relates back to the
institution Of the action and the statute
Of limitations stops running as to the
substituted plaintiff when the action 'is
begun rather than when the amendment
is made.
g. An action to recover rents for land
the possession Of which Is wrongfully
withheld is founded on implied contract
and the three year statute OF limitations
applies.
All the Justices concurring.
A true copy.
Attest D. A. VALENTINE,
[SealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
d. A. VALENTINE.
Clerk Supreme Court.
No. 1S,619.
H. H. Wade, Appellee,

". E. Hornaday, H. A. Martin and J. l..
Brady as Partners, Appellants
Appeal from Douglas County.
- REVERSED.
Syllabus BY the Court. Porter J.
l. Partnership is a matter Of contract
and courts will not create such q contract
against the will Of a party. A definition
Of partnership which Is at once accurate.
comprehensive and exclusive II extreme
ly difficult. Participation in the profits
is only regarded as circumstance to be
considered in determining whether or not
q partnership existed. The mere fact
that the parties called themselves part
ners and referred to their business rela-
ton an a partnership will not necessarily
make them partners nor their business a
partnership.
2 In this case it is held that an ar
Eangement between three persons for q
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.
No. 1850.
J. A. Murphree. Appellee.

J. A. Murphree. Appellee.
W. o. Anderson. and T. E. Armstrong;.
Appellants.
Appeal from Shawnee County.
(Div. No. -
AFFIRMED.
Syllabus. BY the Court. Porter, J.
la judgment Is not an estoppel as to
facts which did not occur until after the
not involved in the former action not
withdrawing references were made in
the pleadings in that action to matters
not involved therein.
z Plaintiff sued to recover damage for
the malicious attachment of his property.
The answer pleaded former judgment
IN an acton wherein plaintiff tn. sued one n OF
imprisonment. In the petition in the
former action he alleged facts with re-
spect to the attachment of his property
causing his arrest and Imprisonment
When the first case was tried the attach
ment case was still pending and 1t had
not then been determined that the at
tachment was wrongful Held that the
trial court properly took from the jury
the question Of tho former Judgment on
Hcious attachment could not have been
ad5udicated in the former action.
L g. In an action to recover damages for
the malicious attachment OF plaintins
property the defendant pleaded the form
er Judgment in which the attachment was
dissolved and alleged that the plaintiff as
defendant in that action had set up q
counterclaim for the same damages. The
trial court rules as a matter OF law that
plaintiff was not by reason of the allega-
tons Of his answer in the attachment
case estopped from asserting his claim;
The question being one of fact should
have been submitted to the jury; but.
since all the evidence was to the effect
that none Of the issues were In fact adj
Indicated in the former action. and no
serious contention being now made to the
contrary, the error will not be regarded
as prejudicfal.
l. In an action to recover damages IN
Guiding attorneys fees for defending
attachment the plaintiff who
was a farmer, was permitted to testify to
the value Of his attorneys services in de-
Tending the attachment case. HELD, not
error.
All the Justices concurring.
A true copy. -
Attest: %. A. VALENTINE,
rseal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
No. 1875.
l.. L. Staley, ct al, Appellees.


Alfred Weston. ct al. Appellants.
Appeal from Wyandotte County.
Division No. 8.
AFFIRMED.
Syllabus. By the Court. Benson. }.
1. X. agreed to deliver to w. In Kan
sas City the crops which he had raised
upon farm as tenant of C. who was en-
titled to one-haH of the crops. X. w.
and c. entered into q contract in which
1t was agreed that w. was to receive and
sell the crops and pay over one-half Of
the net proceeds to 8. a creditor OF C.
In this suit OF 8. against w. upon the
contract. the conclusion Of the district
court that in arriving at tho net proceeds
w. should not be allowed to deduct from
the amount received from sales. the sums
paid to K. for hauling the products OF
the farm to the city, = sustained
2. The plaintiff 8, for whose benefit
the promise above referred to was made,
may maintain m action therefor, although
not a party to the contract.
: A question relating to an order OF
reference. and rulings upon evidence. were
examined without finding error therein.
All the Justices concurring.
A true ccny.
Attest d. A. VALENTINE
U9eaLJ Cork 9uuruno Cuu96
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
IiEGAL.

It IL located unless it has the prescribed
qualifications as to population and as
sessed valuation OF real and personal
property and has elected to become q
separate township in accordance With the
provisions Of section ISIS, General Stat
utes of 1903.
3. 1t is the duty Of each county treas
urer to pay to the treasurer of each city
of the third class within the county OF
which he is treasurer, all sums levied and
collected upon the property in such city
for township road tax.
All tho Justices concurrfng.
A true copy.
Attest: d. A. VALENTINE
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
D. A. VALENTINE,
Clerk Supreme Court.

No. 1921
The State of Kansas, Appellee,
VS..
Art Schmidt, Appellant
Appeal from Cow1ey County.
AFFIRMED
Syllabus. BY the Court. Burch. J.
l. The act OF 1911 making persistent
Violation Of the prohibitory law felony
being supplemental Legislation, the pro-
cedure authorized by the general intoxi-
eating liquor law governs and an tnfor-
nation for persistent violation need not
state the kind Of liquor sold or the name
OF the person to whom sold.
=, In criminal cases the ultimate test
applied in determining the validity of a
plea of former conviction or former ac-
quittal is identity OF offenses, and it is
not necessarily decisive that the two Of
lenses may have some material fact in
common.
g. Where the record Of a previous con-
v1ction relied on to support q charge Of
persistent violation discloses that the
conviction was for violation Of the pro-
htbftory liquor law the record Il pr1ma
facie proof which warrants finding Of
previous conviction without introducing
the complaint or information on which 1t
was based.
All the Justices concurring.
A true copy.
Attest: . d. A. VALENTINE
lSeaiJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
No. ESQ.
L. e. Wait. Appellee.


Clay McKibben. Appellant.
Appeal from Ford County.
REVERSED.
Syllabus. BY the Court west. J.
1. In an action to recover on = partner
ship dissolution agreement the defendant
pleaded a mutual mistake by which q
provision to turn over q mortgage on one
OF two tracts OF land had been changed
to one Tor turning over q mortgage on
both tracts. Tho evidence showed and
the jury found that the scrivener had
made q mistake In drawing the contract
from the agreed draft furnished by the
parties and that when II was signed the
plaintiff knew Of the change but the de-
fendant did not. The court had instruct
ed that in order for the plaintiff to re-
cover q mutual mistake must be shown.
The defendant asked leave to amend by
alleging a mistake ON his part and fraud
on the part OF the plaintiff. This was re-
fused and the court rendered judgment
against the defendant on the findings
notwithstanding the general verdict.
HELD, error.
2. The matter Of amending to conform
to the proof being discretionary the rul-
ing in that respect will not be disturbed.
but the difference between the allegations
and the proof was technical rather than
substantial and the general verdict
should have been allowed to stand re-
gardless Of any amendment.
A true copy.
Attest: D. A. VALENTINE,
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
D. A. VALENTINE
Clerk Supreme Court

No. Is S19.
The State Of Kansas. ex rel, Ray H.
Beals. as County Attorney, etc., Appellee,
VS..
The City Of Stafford, ct al, Appellants
Appeal from Stafford County.
AFFIRMED.
Syllabus. BY the Court. Johnston, C. ].
On this appeal 1t is held that there is
sufficient testimony to support a finding
Of the trial court that a part of the
amount named as the consideration Of q
contract for the purchase by city Of a
light plant or a part Of the same which
had been owned and operated by q private
owner was paid by the city to such own
err for the surrender OF an unexpired part
of an exclusive franchise previously
granted to the owner by the city.
All the Justices cOncurring.
A true copy.
Attest: d. A. VALENTINE.
fSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
D. A. VALENTINE,
Clerk Supreme Court
No. 1851.
c. G. Davis, Appellant,

No. 1851.
c. G. Davis, Appellant,
Coler L. Sim ct ell, Appellees.
Appeal from Sedgwick County.
Division No. -
REVERSED.
Syllabus. Sv the Court Mason 4
In an action for damages from q flood,
alleged to have been caused by the break
ing Of dam. witnesses for the defend
ants testified that they saw the dam still
standing after the time when the injury
was done. The plaintiff produced no d.
rect evidence to tho contrary. but asked
new trial on the ground that he had
subsequently discovered eye-witnesses
who could contradict this testimony.
Held. that the new evidence was not
cumulative and was Of such Importance
that the effect should be passed upon by
jury, and that the diligence shown by
the PLAINTIFF was sufficient to entitle him
to a new trial.
Johnston, C. j.. Burch. J.. Smith, J..
Porter. j., Benson, j.. and West, J.. con-
curing.
Mason, j.. dissenting.
true copy.
Attest d. A. VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
MONUMENTS.

NOW = the time and this u the place 70
get first class goods at prices that defy
competition. Come and zee me. Get my
prices and you will be convinced. Order
early and have your work oet for Dec
II. Schroeder. IA Jefferson It.. Topeka.
Phone 1905.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.
No. 1S.843.
William C. Little. Appellant,

No 1888.
William C. Little. Appellant,
vs..
]. 8. Liggett, Appellee.
Appeal from Sedgwick County
Division L.
AFFIRMED.
Syllabus. BY the Court. Burch. J
The doctrine Of the case of Babcock v.
Deford, II Kan. 40e. permitting an am
biguous and incomplete contract to be ex-
planned and supplemented by parol evil
dence. and the doctrine Of Stroupe "
Hewitt. 80 Kan. 200. lis Pac. $50, permit
ting the Introduction OF parol evidence to
show that a contract was not to take eff
feet until the ascertainment Of some fact
applied to an application for a loan con-
tanning . notation with respect to the
commission for securing the loan, in .
suit for the commission.
All the Justices cOucurTinG.
A true COPY.
Attest: D. A. VALENTINE,
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
LEGAL.

certain sales Of shares Of stock in lieu Of
Office rent and services furnished by one,
advertising and printing furnished by an
other. and services OF the other in the
sale Of the stock and In the advertising
and correspondents. did not create q
partnership In the sense that one could
bind the others by a contract made In tho
name Of all.
All the Justices concurrinE.
A true copy.
Attest: D. A. VALENTINE
lSeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
No. 19, 104.
r. w. Winters. Appellant,

No. Is, l04.
+. w. Winters, Appellant,
James Myers, Appellee.
Appeal from Reno County.
REVERSED.
Syllabus BY the Court Benson. J
l. The title to islands formed In navi-
gable streams since the admission Of Kan
sas into the union Is held by the state
for the benefit of all the people.
2. The legislature is without power to
relinquish the title to such islands = to
the owners Of shore lands without COM
pensation where no public benefit will re-
suit from the gift.
g. Section Of chapter 2s5 Of the Laws
Of 1913. concerning islands in navigable
streams, which provides for such re-
linquishment or gift when certain condi-
lions exist, violates section of the Bill
of Rights which declares that free gov
ernments are instituted for the equal pro-
lection and benefit Of the people.
Johnston, c. J., Burch, J., Smith. J.,
Porter. J., West, j., concurring.
Mason, j., dissenting.
A true copy.
Attest: d. A. VALENTINE.
(Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
No. 1891.
A. w. Cain, Plaintiff,

NO. 1871.
A. w. Cain, Plaintiff,
VS..
HI. n. Kinkhead, as County Clerk, ETC.,
ct al. defendants.
Original Proceedings in Mandamus
WRIT ALLOWED.
Syllabus. By the Court. Mason, J.
l. Under the statute providing that one
seeking to acquire title to land, on the
theory Of its being an island belonging
to the state, shall deliver certain papers
to the county clerk for filing, after which
steps shall be taken to cause tho rights Of
All claimants to be determined by the
district court. the clerk is not justified in
refusing to file the papers upon the
ground that the claim OF the person pre-
senting them Is without merit on the
facts
Where a surety on a cost bond
makes affidavit that he is worth fifty
thousand dollars over all debts and ex-
emptions. the officer required to pass
upon the sufficiency Of the security IL not
justified in rejecting the bond without
further investigation. merely because he
has no other Information concerning the
surety. who is resident of another
county.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
tSea1.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12

No. 1885,
H. c. Parrish, Appellee,
The Van Arsdale-Osborne Brokerage
Company at a., Appellants.
AFFIRMED.
l. Il is not ne necessary to ooa . valid At:
tachment that the officer shall make q
manual seizure Of personal property but
1t 10 deemed sufficient II he assumes con-
An owner Of property advertised
that 1t would be sold at public auction at
q certain time and on the day Of sale the
sheriff appeared at the place Of sale where
der of attachment sued out by the plain
tin. After stating his purpose and under
an arrangement with the sheriff the de-
fendant owner gave forthcoming bond
mad been seized under the order Of at
tachment and was bound by 1t and there
upon the property was released and the
sale proceeded. The attachment was sub
eequently vacated on the ground that tho
defendant was not indebted to the plain
tin and in an action on the attachment
bond it Is held that az between the plain
tin and the defendant there was a valid
levy of the attachment.
g. The expenses necessarily incurred in
procuring the dissolution of an order Of
attachment wrongfully issued and a re-
lease Of the property unlawfully seized. in
dispositions. may be recovered by the
owner on the attachment bond.
4. The depreciation in the value of
property and Of the prices received which
full attachment Of the property at the
sale is an element Of damages which
may be recovered by the owner.
All the Justices concurring.
Attest: d. A. VALENTINE,
tSeaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12

- No. 1880
The Boad of County Commissioners of
the County of Shawnee, Appellees.
r. L. Thomas. Appellant
Appeal from Shawnee County.
Second Division.
MODIFIED.
Syllabus. BY the Court. Benson T
1. Under the general statute relating to
fees and salaries the clerk of the district
court OF Shawnee county was entitled to
q salary OF 10000 per year out of the
fees of his office and one-half Of the ex-
cess Of such fees above the salary. (Gen.
stat 1903. Sec. 1851 By chapter 2l3 Of
to pay the salaries of necessary deputies
and assistants out Of the fees OF his ONCE
not exceeding $4,000 in any year, all the
nalance OF the excess fees remaining
treasurer. The general statute, except
as modified by the act Of 1901 was In
ferss during the Official service Of the de-
these statutes together and in connection
with the title Of the act Of 1901 1t il held
that tine clerks salary Of $4,000. togeth-
mot or and an as:
year. should be deducted from the whole
amount of the fees. One-half Of the re-
mainder may be retained. by the clerk
and one-half should be paid by him to the
county treasurer. BY the general law the
excess fees above the salary were divided
between the clerk and the county. The
DIVISION
but allows the deduction Of the expense
of office help in addition to tho salary be-
fore the division is made.
2. The expense Of an audit Of the books
and accounts of the clerk for his benefit
by accountants employed by him should
not We included in the allowance psovided
by the act Of 1901 for salaries OF deputies
s. The county is entitled to interest
upon balances of fees due from the clerk.
I: An ambiguity appearing in tho
specified item, it is directed that the item
shall be determined by the district court
upon evidence. or admission Of the par
Al, the justices concurrins.
Attest: D. A. VALENTINE.
tseal1 Clerk Supreme Court
The Rswlins County State Bank. APP
pellant.
Henry Walters, Appellee.
Appeal from Raw1ins County.
AFFIRMED.
Syllabus. BY the Court. Benson. ,.
ceeds of . sale OF mortgaged personal
property. made by the mortgagor. and re-
ceived ana applied BY his creditor in good
faith in payment Of Z valid debt, Whero
the person 50 receiving tho proceeds has
not knowledge of the mortgage, and IL
not chargeable with any notice Of its ex-
istence.
2. In the situation stated above the I'LL
ing Of the chattel mortgage in the proper
Office does not impart constructive notice
to the creditor who receives and applies
upon or right to the mortgaged property.
All the Justices concurring:
Attest d. A. VALENTINE.
IseaL1 Clerk Supreme Court
No. 1a24
IN D AnvHA1IAA
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-05-12
d. A. VALENTINE,
Clerk Supreme Court.

No. 1852.
E. d. Draper, ct al, Appellees,
vs.
Edwin L. Miller, Appellant.
Appeal from Wyandotte County.
division No. IT,
F AFFIRMED.
Syllabus. BY the Court. Mason. J.
/. Although one doing business without
having paid an occupation tax required by
a city ordinance can not ordinarily main
tain an action for services performed and
Is because of q disability imposed upon
him. which may be removed by a sebse-
quent ordinance. or by pardon
2. Where a plaintiff while under such
character, dismisses it without prejudice.
and afterwards obtains pardon. he may
within a year after such dismissal In
stitute a new action upon the same claim,
Notwithstanding any other statute OF lin
8 where the terms of a contract are
agreed upon. and two writings, supposed
to be in conformity thereto, are executed.
ment Of the contract against the party
who prepared tho writings can not be
prevented by the fact that the copy re-
tanned by him does not conform to the
the other party conforms to it only by
reason of an addition. not clearly legible.
made before its execution with q different
kind Of pencil from that employed in
the body OF the instrument.
T 4. In an action against the owner OF
property for the value OF improvements
made thereon, the defendant can not be
allowed damages on account OF the plain
such refusal was caused by his own re-
pudiation Of the terms Of the contract re-
garding the price he was to pay.
All the Justices concurr1ng.
{ Attest: D. A. VALENTINE.
(Seal1 Clerk Supreme Court