davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10

No. 1901
The stafford County Grain Company, APP
pellant,


The Stafford County Grain Company, APP
pellant,
VS..
The Rock Milling 4 Elevator Company,
Appellee.
Appeal from Reno County.
REVERSED.
Syllabus. By the Court. Johnston. G. J.
/ A contract for the sale and delivery
of a commodity at future time where
there is bona fide intention TO fulfill the
contract and to deliver and receive the
commodity is valid. but if the sale is d
mere pretense. a wager the rise and fall
of market prices, and there is no intention
t. receive deliver the commodity the
contract is contrary to public policy and
violation of the statute.
=. Courts closely scrutinize the contested
transactions of those who deal in futures
and look beyond the form of the agreement
to determine whether 1t evidences a real
purchase and sale which has been made
with an intention to deliver and receive the
commodity and not as cover for gam
bling transaction.
= In this ca Sc it is held that evidence
Was introduced tending to support the
claim of the plaintiff that the dealings in
qeustiOn were gambling transactions and
that the defendant participated in them
and was acquainted with their character
y true copy
Attest: u. A. VALENTINE
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
LEGAL.
No. $1,000.
R. E Gardiner ct al, Appellees,

H. L
The City of Leavenworth. Appellant.
Appeal from Leavenworth County.
REVERSED.
Syllabus. By the Court West. J..
applicable to suits to enjoin the levy of
1909, sec. 994) governs although city by
property owners thirty days notice that
improvement bonds will be issued, unless
the property is redeemed from liability on
account of such special assessments.
>. The rule that the statute begins to
run when the ordinance levying the assess
ment is published, followed.
B. Under section 1910 of the General
Statutes of 1909 it is not essential to wait
until the tax is actually levied provided
the acts and proceedings of the city are
such as to show that such burden will be
imposed unless enJoined-
f. While an amended petition usually
relates back to the time of filing the orig
inal petition, a pleading named amended
petition which is in fact supplemental
petition in part setting up things which
have occurred subsequent to the filing of
the orig nal petition must be judged by
what II is and not by what it is named.
>. Neither section 1910 of the General
Statutes of 1909 nor section So of the civil
code permits in of this kind the
Joinder of causes of action which do not
affect all the parties to the action.
All the Justices concurring.
true copy.
Attest: D. \. VALENTINE.
lSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. BIB.
Lizzie MeClouskey, Appellee,

Llzzle McCIouskey, Appellee,
f E. Brown, Co Supt-, Appellant
Appeal from Greenwood County
AFFIRMED.
syllabus BY the Court West. J.
J. The rule that teacher holding IL Ger
ttficate duly issued by a board of exam
liners has a right on presentation thereof
with the proper fee to the superintendent
or another county to have such certificate
1ndorsed by him unless some valid rea-
son exists for withholding such indorse-
ment-foIlowed-
= The test of the teachers right to such
Endorsement is the existence or noneXist-
ence OF such valid reason. not the opinion
or belief of the superintendent that such
reason exists. and court of competent
Jurisdiction may properly inquire into the
matter and direct the superintendent in
accordance with the result
All the Justices concurring
A true copy
Attest: d. A VALENTINE.
lSeal-I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10


In 70 Porter Patterson. Petitioner
Original Proceeding in Habeas Corpus
PETITION REMANDED
Syllabus by the Court. Johnston c 7
parole granted by the district court
judge thereof under section = OF chan
ter lis of the Laws of 1907 Gen. Stat
1902 Sec. 24G0l containing n provision
that upon satisfactory informa tfon that
the conditions of the parole have been
violated the court or judge is authorized 10
revoke the parole and cause the convict
to be reimprisOned under the sentence
pronounced by the court without notice
or hearing may be revoked by the court
or judge and the convict may be recon-
mftted to serve out his sentence without
either notice hearing. and such action
is not Il violation of the constitutional
guaranty that no person shall be deprived
of his liberty without due process of law
nor of the other guaranty that no war
rant shall issue except on probable cause
supported by oath affirmation
All the justices concurrtng, except Daw-
son. J. who did not sit
\ true copy.
Attest: D A VALENTINE.
ISeaIl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No 10 357
No. is, 357.
The Griffiths Grain Company. a corpora
ton, Appellee,

No. Is, 357-
Inc Gr1ffiths Grain Company, a corpora
ton, Appellee,
The St Joseph & Grand Island Railway
Co corporation. Appellant
Appeal from Nemaha County.
REVERSED
Syllabus By the Court. Porter. T.
railway company leased to the plain
tiff at a rental of SO per annum, a strip
of ground on its right of way to be used
IN the erection of a grain elevator. The
lease contained a provision that the
lessee should assume all risk of loss, dam
age or destruction to the elevator build
ings or contents from causes incident to
or arising from the movement of lOcOmo-
1ves- trains of cars. misplaced switches. or
in any other respect from the operation
of the railroad whether the result of neg
ligence of the railway company it's en-
ployees- HELD. that the clause exempting
the railway company from liability is not
valid.
Burch. J.. Mason. J.. West, J., Marshall,
J.. and Dawson, j. concurring.
Johnston. &. J., dissenting.
y true copy
Attest; D. A VALENTINE.
lSeal.I Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1925.
John f. Hanson, Appellant

John f. Hanson, Appellant,
William Kendt. ct al. Appellees
Appeal from Mcpherson County
syllabus By the Court Marshall. J.
l. An application for q change of venue
supported by the affidavit OF the party
that a fair and impartial trial can not be
had because of prejudice in the county
is biased and prejudiced in favor of the
opposite party. and that the apphcant mas
ieoed uIisruIinrs and proceedings without
Jurisdiction, is not of itself sufticlent to
compel such change
court in in calling jurors for the trial of
cause, unless 1t appears that the party
complaining was prejudiced thereby
s. Instructions, stating correct prin-
eiples of law, applicable to the pIead1ngs,
will be presumed to have conformed to the
facts proved. in the absence of any alb
stract of, or statement concerning, the evil
dence.
4 a motion for a new trial, which al
leges inability to procure the attendance
continuance or other request Is made on
that account when the case Is called Tor
trial. is properly denied
). A motion for new trial which al
Ieges surprises because witness did not
give more definite testimony, is properly
denied. when no application or request OF
anv kind is presented to the court at the
time the testimony is given
g. 1t must be shown that remarks made
in the presence of juror trying cause,
were such as would necessarily prejudice
the party complaining. or IL must be
shown that prejudice did result therefrom.
in order to warrant this court in reversing
a judgment and ordering a new trial on
that account
4 1t is not improper for a judge to talk
with counsel concerning instructions to be
given in a trial
5 The addition of the words Not
Guilty to a verdict finding for the de-
PENDANTS, in an action for damages for an
assault, does not vitiate the verdict
All the Justices concurring-
A true copy
Attest D A VALENTINE
TSeaI.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 10. DO & 10. 20

No. l3.ZZU & 1913.
Ida Nordman. Annie Enderud, Charles 2.
Nordmark and John A. Nordmark, APP
pellants,
Sarah Bertha Johnson alias Sarah Bertha
Nordmark, Appellee.
Appeal from Republic County.
MODIFIED.
Syllabus BY the Court. West J
In a suit tried by the court involving
the validity Of certain conveyances and a
will executed thereafter and the mental
capacity of the grantor and testator it was
error for the court to refuse upon timely
request to make findings of fact covering
the material issuable matters put in issue
by the pleadings and which evidence
was introduced.
Johnston. c. J.. Porter. J., Marshall, J.,
and Dawson, j.. concurring.
Burch. J.. and Mason, J., dissenting.
true copy.
Attest: u. A VALENTINE.
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 19.O75-
Julia Mccullough. Appellee.


The, Missouri Pacific Railway Company
and The SaIina Street & Interurban Rail
way Company. Appellants
Appeal from Saline County
AFFIRMED IN PART.
REVERSED IN PART.
syllabus BY the Court. Porter J.
L Plaintiff injured a result of
collision between a street car upon which
she was IL passenger and Missouri Pa
.ific freight train at street crossing. and
recovered a Judgment against the street
railway company and the Missouri Pacific
halfway company for her actual damages.
and for $1,000 exemplary damages The
evidence showed that the street railway
company ran its over the railroad
crossing in the rear of backing freight
train which was in plain view of the
motorman who failed to bring his to
a sion before crossing the tracks. HELD,
that the street railway company gull
~ of gross and wanton negligence suf-
ficient to sustain the Judgment for ex-
empIary damages
= Tpon the facts stated in the opinion
the Missouri Pacific Railway Company
was guilty of negligence in not giving sig
nails of warning OF the intention to back
tbe train across the street, but was not
guilty of gross or wanton negligence suf-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1881.

No 1S.SOl-
G. L. HORNE, Appellee,
J. Il Hammond and r. B Hammond. Part
ners Hammond Bros, Appellants.
Appeal from Washington County
AFFIRMED.
Syllabus. BY the Court. Marshall, J.
/ An examina ton of the abstracts dis
closes that there was some evidence tend
ing prove each fact necessary to be
established to prove the plaintiffs case,
and for that reason, a demurrer to the
evidence was properly overruled.
2. A general verdict, approved by trial
court when based on sufficient although
conflicting evidence. will not be disturbed
by the supreme court
All the Justices concurring-
true copy.
Attest: D. A. VALENTINE.
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 19.060.
A Frank Butts, Appellee.

The Atchison. Topeka and Santa Fe Rail
way Company. Appellant.
Appeal from Harvey County
REVERSED
Syllabus. BY the Court Porter. J.
A traveller, whose deafness prevented
him from hearing the warning signals of
an approaching train Al dangerous cross
ing with which he familiar, drove
upon the track and struck by the
train and injured His failure TO stop and
look from position where he could have
seen the train in time to avoid the injury
is contributory negligence which will pre-
vent his recovery in an action against the
railway company.
Burch, J.. Mason. j, Marshall, J., and
Dawson. J.. concurring-
Johnston. G J., and West, J., dissenting
true copy.
Attest: D. A VALENTINE
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 9.294
George Burdett, Appellant,

George Burdett, Appellant
Joseph Surdez, ct al. Appellees-
Appeal from Nemaha County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. J.
1. In an action of replevin for the re-
cOvery of team of mules the contention on
one side was that bank check given in
payment was not good and was not accept
ed as payment and on the other side that
the check was received payment in sat
isfaction of the debt and, further. that the
plaintiff who accepted the check had
brought the action of replevin not on his
own account but for the benefit of another
party and was conniving with that party
to defraud the defendant. Upon the plead
ings and evidence 1T Is HELD that, the
issue of fraud was fairly in the case and
that the trial court was warranted in Civ
ing an instruction to the jury on the sub
ject-
: >. The bringing Of an action to recover
personal property by one who has no in
terest in it at the instance of an outsider
to aid him in effecting a wrong constitutes
Il fraud the defendant
All the Justices concurring.
\ true copy
Attest: d. A. VALENTINE,
[SealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
LEGAL.
No. 19:;4S.
The l. & NJ Mercantile Company. Appel
liant

liant
o. A. Winner, Appellee
Appeal from Scott County.
AFFIRMED
Syllabus By the Court West ].
cnted a subsequent agreement which con-
tanned the recital, and there being some
misunderstanding between the parties
to certain provisions of the said contract
originally entered into, it is hereby agreed
between the parties follows, as a supple
mental agreement: but covered numerous
matters not embraced in the former. HELD,
not TO preclude either party from claiming
and showing that certain property not
specifically mentioned in such later con-
tract and invoiced personally was in
law to be regarded real estate whether
such wrongful classification as personally
had been by mistak or design
- 1t not error to give an instruc
ton that shelving. a gas light system,
CINE, feed mill. cash carrier system, roller
ladder and track. if permanently affixed to
the building by nails, bolts screws with
in carrying out the designed purpose of
the building, should be regarded as realty
unless the parties had otherwise agreed.
;. After accepting a deed containing
covenant of warranty against taxes the
grantee wrote letter requesting the
grantor to pay such taxes and promising
to reimburse him. HELD. that compliance
by the grantor rendered the grantee liable
for the sum so paid
All the Justices concurring.
true copy.
Attest: d. A VALENTINE.
LSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
LEGAL
No. 1925.
John a. Reese. Appellant,

John A. Reese, Appellant
r B. Hammond ct al Appellees,
Appeal from Dickinson County.
AFFIRMED
Syllabus BY the Court Dawson J
Under Chapter 262 of the Laws of 1911
and Chapter 21S of the Laws of 1913, a
township having no cities of over three
hundred population may establish, locate
and maintain township high school.
All the Justices concurring-
true COPY.
Attest; D. A. VALENTINE.
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1929
c. 5. Sutton, Appellee.

c. 5. Sutton, Appellee.
e. o. Wright. Appellant
Appeal from Montgomery County.
AFFIRMED.
Syllabus By the Court Burch, J.
In an action by an insurance agent to
recover on two promissory notes given for
the premium on a new life insurance policy
issued to take up old policy which was
surrendered, the defense WAS want of con-
sheraton because the policy had not been
delivered to the insured The insurance
company sent the policy to the agent for
delivery to the defendant. The jury found
specially on sufficient proof that the agent
duly mailed the policy to the defendant
HELD manual delivery of the policy TO
the defendant by messenger was not essen
tiaI to perfect the defendants obligation on
his notes and the defense of want of con-
sideration overcome
All the Justices concurring.
true copy
Attest: ID. A NALENIINE-
TSeaII Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1890.
q. F. Smith, Appellee

The Western States Portland Cement Com
pany- Appellant
Appeal from Montgomery County
AFFIRMED
Syllabus By the Court Mason. J.
The Factory Act is not repealed. 1t re-
mains in full force. but it cannot be in
voked by an employee TO whom the bene-
fits of the Workmen's Compensation Act
are available and who has elected to ac-
cept them Where however the employer
has elected not to accept the latter act,
tn employee is free. Notwithstanding his
own acceptance. to bring an action under
the Factory Act
All the Justices concurring-
A true copy.
Attest D. A VALENTINE
ISeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1875.

No. 1885.
James F. O'Neal and H w O'NeaI, Do
ing business o'Neal & o'Neal, Appel
lees
Carrie r. cambridge Appellant
Appeal from Ford County
AFFIRMED.
Syllabus By the Court Marshall. J.
l. Whether or not building has been
totally destroyed is ordinarily a question
of fact for the jury
- 4 tenant, occupying a part of build
ing under written lease may ontinue
to hold under the lease. although the part
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1896.
+. E Grimes, Appellee.
VS..
Rolla C. Emery. Appellant.
Appeal from Ottawa County.

Rolla c: Emery, Appellant.
Appeal from Ottawa County
AFFIRMED.
Syllabus By the Court Dawson. J.
L The question whether a reaI-estate
agent is the procuring cause of the sale
OF farm is one of fact to be determined
by the jury in the light of all the cireum-
stances leading up to the final negotia lions
between the vendor and purchaser
Emery listed his farm for sale with
Grimes on November l. 1911; Grimes called
the farm; on February Is. 1912. Emery had
conversation with Grimes in which he
said he might cut the price for an immed~
late sale: Grimes told Emery that he had
might buy, but did not tell who the pro-
spect1ve purchaser was: on February 10.
1872, Grimes saw Kline and again solicited
him to buy and to go and look at the
farm Kline said he wanted to look at some
other lands first but tacitly agreed to go
on April L., 1912. Kline called on Emery
seeking to buy the farm. and after being
assured by Kline that no real-estace agent
quiry, sold the farm to Kline: HELD,
That IL was not error to override demur-
rer TO the evidence on the point that Grimes
was the procuring cause of the sale is an
for his services.
3. Where the instructions taken together
define the law with substantial accuracy,
and no special instruction is asked cover
ing some controverted point in the evidence
reversible error connot be predicated upon
one instruction. not inherently misleading
when il is supported. amplified and ex-
planned to the jury by the other instruc-
tons
Johnston. C j.. West, J. and Marshall.
J.. concurring-
Mason, J., Burch, J., and Porter J.. dis
A true copy.
Attest: d. 4. VALENTINE
ISeaLJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
LEGAL


ficient to sustain the judgment against 1t
for exemplary damages. and therefore the
judment against il for actual damages is
affirmed, and the Judgment against II for
exemplary damages is reversed
All the Justices concurriI
A true copy.
Attest: u. A VALENTINE
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No. 1920.
Florence Estella Wade, Appe


Florence EstelIa Wade, Appellant,
The Empire District Electric Company, APP
pellee-
Appeal from Cherokee County.
(Sitting at Galena-)
REVERSED.
Syllabus. By the Court. Johnston, c. J.
l. Electric companies that suspend wires
charged with high voltage of electricity
over along the highway required to
ercise the highest care in constructing and
avoid injury to those using the highway
for work business and pleasure
= A workman who moving a min
ing derrick along a highway, lawful and
recognized use, found his passage OBJ
structed by wires of the size and appear
ance of those used in telephone service sus-
pended about nineteen feet above the
ground while the derrick he was moving
extended about foot higher. To effect a
passage he climbed the derrick in order to
lift the wires after being warned by a fell
low workman to be careful and while lift
ing the wires was eIectrocuted. In an ac-
ton to recover for his death, it is HELD
that, the testimony shows PRINA facie
case OF negligence on the part of the cleo
trio company and, further, under the cir
cunstances as shown by the testimony the
workman can not be charged with con-
trfbutory negligence a matter of law in
climbing the pole and endeavoring to lift
the wires over the top of the derrick
Burch, J., Mason, J., West, J., and Daw-
son, J.. coneurring.
Porter, J.. dissenting.
Marshal. J., not sitting
A true copy.
Attest: D. A VALENTINE.
lSedl-I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-03-10
No 1905.
The City of Seneca, Appellee.

The City of Seneca, Appellee.
The st. Joseph & Grand Island Railway
Company, Appellant
Appeal from Nemaha County
AFFIRMED.
Syllabus. BY the Court Mason 7
l. No part of the street is vacated by an
ordinance Of city of the second class,
eating a part Of a Street for "raiIroad
building purposes" but which in its body
only purports to authorize the railway
company to for railroad purposes
the portion of the street described.
of such ordinance the railway company
has constructed a depot standing in part
upon the designated portion of the street.
and located its station and yard tracks
upon the assumption that the street was
vacated, and the depot and tracks have
city is not estopped to deny the vacation
of the street, unless with respect to the
portion occupied by the depot
All the Justices concurring.
Attest: D. A. VALENTINE.
iSeall Clerk Supreme Court.
H H Randall as Guardian of Caleb C
Randall Appellee
James NJ Ross and Maggie A Ross. APP
pellants.
Appeal fom Clark County
AFFIRMED.
Syllabus. By the Court. West J.
The petition alleged that the defendants
nIe1tiv Taken adyaotare Of r,i5intiffS men
tai incapacfty and induced him to ex-
change a half section of land in Clark
county for certain lots in the city OF Ash
land and to execute certain notes secured
by mortgage on the lots and also cover
ing a certain promissory note for S1.31O.
the difference in value of the properties
thus purpOrtt1g to be exchanged being
s4.lco That the defendants would unless
restrained. assign and transfer the notes
and mortgage and convey the land TO in
noeent purchasers The plaintiff offered
TO reconvey and prayed that the defend
ants be restrained and eDjoined from
transferring the notes and mortgage and
from conveying the real estate --and that
all said deeds notes and mortgages be
cancelled and set aside and each Of the
parties restored to the property that they
had before said purported exchange Of