davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
ID. A. VALENTINE,
Clerk Supreme Court.


Preston rams, Appellee,
L. A. Golden and f. e G. Golden. Appellants.
and Francis NJ. CIaudeI Appellee.
Appeal from Smith County
REVERSED.
syllabus. By the Court Mason. J.
l. A judgment in action for the spe-
c1f1c performance of a contract for the
sale of land, ordering the vendor to make
as calling for a warranty deed where that
was the kind of conveyance provided for
in the contract.
?. Where a judgment for specific per-
formance provides that in the event of the
failure of a vendor to execute a warranty
deed the decree itself shall opeFat such
conveyance, and no deed is executed, the
vendee may maintain action for
breach of warranty in case the title proves
defective
3. Where the vendee sues for specific
performance of a contract to sell land,
and in his petition alleges his Willingness
20 accept warranty deed conveying such
title the vendor had at the time the
action was brought, such allegation is not
to be interpreted as an offer to take the
property subject to existing mortgage
4. Where the petition in an action by
yendee for the specific performance of
contract for the sale of land refers to an
ment is rendered for a conveyance of the
property. without an abatement in the
price, does not preclude a subsequent
ton against the vendor for breach of war
ranty account of the existence of such
lien.
). A vendee who, with knowledge of
the existence of a mortgage securing
note of the vendor pays for n tract of
for II clear title, is not presumed to ac-
cept it subject to such lien. in the abb
sence of some expression to that effect
All the Justices concurring.
Attest: u. y. VALENTINE.
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
LEGAL


and circumstances: from the conduct.
statements, dealings and surroundings of
the parties, from their relationship to
each other, and from the many little do
lngs of the parties which indicate their
secret motives, which rule are stu
diously concealed from those it is in
tended to wrong. Any unusual or extra
ordinary methods, if any, which they
adopted in conducting business; any
secrecy or concealment in business and
any unusual methods or acts connected
with the transactions in question in the
ease are proper to be considered in de
termfnfng whether fraud in fact exists in
connection with the transaction"
T. Where there is prima faeie showing
of mutual design on the part of the
vendor and vendee to hinder, delay and
defraud a creditor the acts and declara-
tions of each relating to the transaction
may be received in evidence.
D. The instructions herein examined
and found to be without material error
and it is further held that the verdict is
supported by the evidence.
All the Justices concurring
true copy.
Attest d. A. VALENTINE,
ISeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

Of safety before the machinery was put
in operation. The jury found that the en-
gineer, who started the machinery on sig
nails by others and did not see or know
that plaintiff at work upon the ma
chinery, not liable for the injury suf-
fered by the plaintiff but also found that
the employer whose duty it to fur
to keep it safe culpably negligent and
responsible for the damages sustained
Held. that the finding of the jury that the
engineer was not negligent does not
essarily exonerate the employer from liza
bility for nonperformance of the positive
duties of Il master towards the plaintiff.
and that the evidence In the case Justified
the jury IN returning a verdict against the
employer.
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 10, 752.
Edward Rezac, Appellant.


Frank lima and T. J. Abel, AppeIlees.
Appeal from POttawatomie County.
REVERSED.
SYLLABUS BY the Court Johnston. C j.
l. In a petition in which it is substan-
TALLY alleged that broker or agent under
took to procure insurance on certain prop
erty of an owner in some responsible com
pany and where the parties agreed on the
total amount of insurance the amount 70
be placed each class of the properly
to be insured and that the premium should
be taken from a certain fund provided Dy
the owner. but that the broker neglected
to procure the insurance and in reply 70
an inquiry of the owner had assured MN
that the insurance had been obtained, ana
the property is thereafter destroyed by ire,
a cause of action against the broker ls
stated and certainly sufficient as against
an objection of the defendants TO the IN
PRODUCTION of any evidence.
= broker ngent who undertdkes
to procure insurance for another IS Dohnu
to exercise reasonable diligence to obtain
il on the terms and conditions agreed
t-pon and to give timely notice to MS Prln-
cfpaT in case he is unable 70 procure u
on the agreed terms and conditions, and IL
he fails to carry out his agreement ana a
loss results through his inattenhon, in
capacity or fraud he will be liable TO the
extent and for the amount that would
have been recoverable upon the insurance
he had agreed to procure;
All the Justices cOncurr1ng-
Arrest: D. A VALENTINE,
TSeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

No 10. IW-
Hiram G. Root, Appellant,


The Topeka Railway Co, A Corporation,
Appellee
Appeal from Shawnee County.
Division 1.
AFFIRMED.
syllabus. BY the Court. Porter, j.
l. Negligence usually consists in the
nj. doing or omission to do something
which results in an injury
.. There is no Inconsistency in a special
finding that the plaintiff was injured while
doing an act I'm casual and Involuntary
way" and the further finding that in so
doing he negligent
2 In an action to recover damages for
personal injuries sustained while a pas
sSenEer on a street ear by reason of plain
tiff's arm coming in contact with trolley
special findings to the effect that plain
tiffs contributory negligence was the
proNimate cause of his injuries prevent
his recovery against the defendant ire
spcctiVe Of the negligence of the defendant
m maintaining its poles too close to the
side Of the car
4. The supreme court on appeal has no
POWER to amend or correct the record upon
affidavits purporting to recite proceedings
u the court below to which the record
the affidavits were not presented to the
trial court nor filed there.
= Suggestions are offered rs to the
proper way 10 bring upon the record the
the trial during the absence from the
court room of the official stenogra pher
aud which a party objecting desires to have
reviewed
All the Justices concurring except West
]. who did not sit.
4 true copy.
Attest: D. A EALETINE
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 1871,
Saran NJ. Baird Blair. Appellee,

VS..
May e Blair and Francis i. Blair, Appel
lants.
Appeal from johnson County
REVERSED.
SylIabus BY the Court Burch j.
In the wear 1852 a husband procured
divorce from his wife by decree of the
district court of johnson county. Kansas,
based on publication service The decree
v-;,s not void but was viodable for fraud ex-
-tcrnal to the issues. Afterwards the PLAIN
tiff in lhe divorce suit married. In me
wear 1910 he died at his residence In the
state of Missouri. leaving large amount
Of real and personal property in that state.
No administrator of his estate was ap-
pointed He survived by the second
wife and one child by her. who live u
the state of Missouri. In the year 1919
the first wife commenced an action IN the
district court of johnson county. Kansas,
rn set aside the decree of divorce. The
second wife and her child were made par
ties defendant and after proper showing
were served with summons in the state OF
Missouri The petition was in form suIrl-
Gent either as a petition to vacate 1udg-
ruent for fraud practiced by the successful
partv. under the code of civil procedure.
or as petition to nUllify the erect OF
p Judgment under the general equity pow
or of the court to relieve against fraud
HELD the district court of Johnson county
was without Jurisdiction to entertain the
petition.
All the Justices concurrfng,
4 true copy -
Attest d A k3I4EN LIN r.
= Seal Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

No. 1874.
H. A. Cox, Appellee,
W. h. Stambaugh and Sarah Stambaugh
Appellants.
Appeal from BARRIER County
AFFIRMED.
No. 49, 700.
Guy Foster, Appellant.
H. A. Cox, Appellee.
Appeal from Barber County
AFFIRMED.
Syllabus By the Court Burch, J.
before conveyance the purchaser sell to d
second vendee, and by mutual agreement
of all parties single deed containing a
covenant against membranes be made
by the first vendor to the second vendee.
the covenantor is liable to the covenantee
for breach of the covenant.
2. IL, under the circumstances described,
the covenant against membranes be
broken the membranes be not removed.
the grantee in the deed be not UNIDENTIFIED
and he sue the cOvenantor for dana ges
for breach of the covenant, the vendor
from whom the grantee purchased cannot
then invoke the equitable remedy of res
cission for failure of the grantee to per-
form an oral agreement forming a part
of the consideration for the deed.
s. Assignments of error relating to a
denial of application to interplead, the
sustaining of an attachment. and a re-
fusaI to make a finding of fact held to
be without merit
All the Justices concUrring-
true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

Paul a. Dresser, ct al. Appellants
The City Of Wichita. ct al, Appellee
~ Appeal from SedGwick County
Division No. ,
AFFIRMED.
Syllabus By the Court West i
l. The provision of the ordinance In 0ues
ton requiring those operating any self
propelled vehicles carrying passengers for
hire to pay additional licenses Of three
hundred to four hundred dollars before
being permitted to solicit or receive pas
designated streets although practica1iy
prohibitiye as to such designated places
i valid exercise of municipal control
> That the effect of such ordinance IL
enforced would involve benefit to the
street railway company is no reason why
the city may not prescribe such regulation
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. Iy.1zG.
/. N Orr, Appellee,

No. I3,lzf.
/. N Orr, Appellee,
The Ellsworth Klaner Construction Com
pany, a Corporation, Appellant, and r.
IL. Sturgeon, Appellee.
Appeal from Crawford County.
AFFIRMED.
Syllabus By the Court Johnston, c. J.
The plaintiff sought to recover damages
from his employer and another employee
for injuries suffered while he was repair
ing the machinery of his employer, based
on the negligence of the employee. who
was an engineer in starting the machin-
cry while plaintiff was engaged in repair
ing it and also on the negligence of his
employer in failing TO furnish him a safe
place to work to give him such warn
ing would enable him to reach a place
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
LEGAL.
NO. ~, Is
It. Eankins, Appellee,


The Williamsburg City Fire Insurance
Company, Appellant
Appeal from Douglas County.
AFFfKAED.
syllabus. by the Court. johnston. {. J
A fire insurance policy Upon building
containing Il stipulation that the policy
shall be void . IL the interest OF
the insured be other than unconditional
and sole ownership
is not invalidated because of an outstand-
ing naked legal title i'll another where the
insured has the equitable title. the entire
beneficial ownership OF the property. and
IS in undisputeh possessioi. Of the same.
All the justices coEcurring-
true copy.
Attest: ID. A. VALENTINE.
SeaLI CLERK Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 20. 90
The City OF Kansas City, Appellee,

No. 20 070.
The City OF Kansas City, Appellee,
John Henre, Appellant.
Appeal from WyandOtte County.
division No. II
AFFIRMED
Syllabus BY the Court Johnston. c. J.
A city ordinance passed in pursuance of
legislative authority to make regulations
TO secure the health Of the city which
fixed higher standard OF food values in
the milk sold within the city than IL pro-
yided in statutory regulations as to the
sale OF milk throughout the state and
Which imposed a more severe penalty for
the violation of the ordinance than is an
neNed by the Legislature for the violation
of the statute on the same subject is not
repugnant to the laws of the state un-
reasonable nor invalid.
All the Justices concurring.
A true copy.
Attest. D. A VALENTINE
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 1865.
Lucy L. SlinkeF, Appellant,

No. 1865.
Lucy +. Slinker, Appellant.
VS..
The Sumner County Building and Loan
Association. ct al The First Baptist
Church of Wellington. Kansas. Appellee.
Appeal from Sumner County.
AFFIRMED.
Syllabus. By the Court. Porter J.
1. Members of church who voluntarily
withdraw from the organization forfeit all
claim to or interest in a fund raised by a
subordinate society of the church for
church purposes.
.. The rule that where the intent or
purpose with which an act was done be-
comes material issue. the person who
did the thing may testify what his inten-
ton was, is applied to the members of an
unfncOrporated society organized by the
women of a church to raise funds for the
benefit of the church
All the Justices concur ing
trne copy.
Attest d. A VALENTINE.
tSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
LEGAL.
SUPREME COURT SYLLABI
IContinued from Preceding Page


No. 1915.
Walter r. Munger, ct al, Appellees,
Ida May Myers. ida May Bowden.1 ct al,
Appellants.
Appeal from HaFaer County.
AFFIRMED.
Syllabus BY the Court Johnston. &. j.
l. The provision of the civil code (320D
which prohibits a person from testifying
in his own behalf in respect to transactions
or communications had personally with a
deceased person in certain cases places a
disqualification upon Il witness as wit
ness rather than restriction upon the
testimony evidence.
, Letters written by the deceased per-
to his son who is seeking to recover
property decided by his father to another
in his lifetime may be received in evidence,
when properly identified, to show the
mental capacity of the deceased about the
time the letters were written and the deed
executed, and do not fall within the
prohibition of section 800 of the civil code.
,. An objection that offered testimony
is prohibited by section 32O of the civil
code should he specific in order to make
ruling thereon available as error
t. Findings as to the mental weakness
Of the grantor and that the conveyance was
obtained from him by undue influence of
the grantee without consideration are held
to be sustained by the evidence.
All the justices concurring-
A true copy.
Attest: d. A VALENTINE,
GSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 20,303.
The State of Kansas, Appellee,

The State of Kansas, Appellee.
VS..
Paul Calvert, Appellant.
Appeal from COffey County.
AFFIRMED.
Syllabus. BY the Court. Porter. J.
1. In prosecution for attempt to
commit rape, several Of the states wit
nesses gave testimony tending to show
that the offense occurred August 8, 1914,
the date charged in the Information, but
some of them being recalled before the
state rested corrected their statements
and fixed July %. 1914, as the time. The
state elected to stand upon that date and
during the further progress of the trial
the fact undisputed that, if the Of
Tense was committed, the date upon which
the state asked conviction the right
one. Held, that evidence Offered by the
defendant showing that the date al
legged in the information he was at an
of the crime. furnished no ground for the
defense of an alibi. and that instructions
relating to that defense were properly re
fused.
3 The complaint in prosecution
charging an assault with attempt to COM
NIT rape upon n female child ten years
of age was sworn to by the child's father
who was not witness at the trial Held.
on the facts stated in the opinion il was
not error to exclude testimony for the pur-
pose of showing that before swearing to
the complaint he had offered to settle the
case.
Ali the Justices eoncurring.
A true copy
Attest d. A. VALENTINE.
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

No. 1878
W. Z. Ellsworth ct al, Appellees,
Charles F. Trinkle, Appellant.
Appeal from Miami County.
AFFIRMED
Syllabus. BY the Cont Bureh, J..
l. The evidence examined and held suf-
ficfent to sustain findings of fact estab-
fishing the right of the plaintiffs to sue
jointly, excusing tender, and showing ac-
tive fraud.
2 The law implies promise I'M medf-
ately to repay money wrongfutIy obtained
and in an action to recover the price of
shares of corporate stock which the plain :
tiff was induced to buy through the de-
PENDANTS fraud interest is properly al
the money during the time the defendant
had the use of it.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
LEGAL.
No. 2O.O29.
The State of Kansas, Appellee,


The State of Kansas, Appellee,
Anton Pfeifer Appellant.
Appeal from Ellis County.
REVERSED.
Syllabus. BY the Court Dawson j.
An information which merely charges
that a defendant drove his automobile past
two persons travelling in buggy in the
same direction the public highway in
the open country at a greater speed than
eight miles hour, but which does not
charge defendant with driving at IN
reasonable or dangerous speed, with
failure to have due regard for the traffic
use of the road its condition, at
a speed which endangered the life limb
of any person, nor otherwise with failing
in his duty to observe the rules of the
road, does not state penal offense under
chapter 60 of the Laws of 1913
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 1a.T55
The First National Bank of Elk City, APP
pellee.

No. II, 100
The First National Bank of Elk City, APP
pellee,
e. f. Dikeman ct al. Appellants
Appeal from Chautauqua County.
AFFIRMED.
syllabus BY the Court. Mason, J.
/ \ bank which buys a negotiable note
is NOT prevented from becoming holder in
due course by the fact that its cashier,
through whom the purchase is made, was
n director Of the bank to which the note
was given. at the time of its execution, he
having no actual notice of any defect or de-
Tense
=. Nor is such bank prevented from
becoming "a holder in due course by the
fact that its cashier knew the note was
given as the result of a settlement between
the maker and payee. and that knowing
Of the tendency Of negotiations to that end
he had agreed with the payee to purchase
the note.
All the Justices concurring.
\ true copy.
Attest. u. A. VALENTINE.
[SeaI.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 20.247.
Ralph f. Martin, Appellee.

No. 2024T
Ralph E. Martin, Appellee
The City of Columbus, Appellant.
Appeal from Cherokee County
REVERSED.
Syllabus. BY the Court. Burcb. J.
When special findings of fact in a per
sOnal injury case acquit the defendant of
liability on the sole ground, on which the
plaintiff might have recovered under his
petition. the special findings cannot be
reconciled with a general verdict for the
plaintiff and the defendant is entitled to
Judgment on the special findings.
Mason, J., Porter, J., West, J.. Marshall
J., and Dawson, J.. cOneurring.
Johnston, c. J., dissenting.
true copy
Attest: d. A VALENTINE
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 10. 1913
Arthur Emery. Appellee,

The Atchison. Topeka and Santa Fe Rail-
way Company. Appellant.
Appeal from Douglas County.
REVERSED.
Syllabus. By the Court. West, J,
L Plaintiffs horses without his fault
and without the fault of the railway COM
pany went upon its track and were killed
by a passenger train. They were not seen
by the fireman or engineer although they
could have been seen half mile before the
collision. Held, that until their presence
was discovered the railway company owed
the plaintiff no duty respecting his horses
and is not liable for failure to see them.
2 A. T. & S. F. Rid Co " Davis, 81
Kan. 645, 8 Pac. 301, modified.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
[Sealj Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
LEGAL.

~Nc~~-~-cC~0--r>>>|~---
3. Before the courts can Interfere with
the exercise of legislativ power granted
to the city to license and regulate such con-
veyances it must appear that the attempt
ed exercise of such power is flagrantly IN
just, unreasonable or oppressive.
Burch, J., Mason, J., Marshall, j., and
Dawson, J.. concurring.
Johnston, c. j., and Porter, J., dissent
ing.
true copy.
Attest: d. A VA1 ENTINE,
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
No. 1866.
Clifford Aekerson, Appellee,

Clifford Aekerson, Appellee.
The National Zine Company. Appellant
Appeal from Wyandotte County.
division Ne. -
AFFIRMED.
Syllabus. BY the Court. Johnston. G. J.
l. III an action to enforce eempensa-
ton for an injury to an employee the en-
ployer can not be regarded to have been
prejudiced by the failure Of the employee
to give him formal notice of the injury
within ten days after II occurred where
the foreman of the employer knew of the
accident when il happened and sent the
employee to the employers physician who
examined and treated him.
z An action was brought by an en-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18
d. A. VALENTINE,
Clerk Supreme Court.
No. 1924.
Ed Boothe and Maggie BOothe, Appellants,


Adam Daley. Appellee.
Appeal from johnson County.
REVERSED.
Syllabus. By the Court. Dawson J.
1. Where vendor contracts to convey
real estate upon the happening of a GER
tain condition. and then disables himself
from performing his contract by making
a conveyance to a third party. cause of
action Immediately arises in favor of the
vendee, irrespective of the question
whether the condition named in the con-
tract has happened or not" (Tracy V.
Gum, % Kan. 500, Syl. Sec. 81
Petition alleging damages examined
and held good against a demurrer.
All the Justices cOncurring.
A true copy.
Attest: n. 4. VALENTINE,
ISeal.l Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-12-18

No 1s,7OT
Outcault Advertising Company, Appellant
H G. Waltner Mercantile Company, APP
pellee
Appeal from Barber County.
REVERSED.
Syllabus. By the Court Mason, j.
In an action upon a written contract to
accept and pay for the of articles de-
seribed as i'Outcau1t Service De Luxe
cuts although the defendant is entitled
TO Introduce parol evidence to show the
meaning ascribed to the quoted phase by
the agent who represented the plaintiff in
the making of the contract, a defense can
not be made on the ground of the breach
of an oral promise made by such agent
a part of the agreement, that his prin-
cipaI would revise advertising matter to
be suggested by the defendant, unless it
was to be used as copy for the cuts re-
ferred to.
All the Justices cencurring-
a true copy. -
Attest: u. A VALENTINE.
[SeaIl Clerk Supreme Court.