davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1924.
Ida Mastellar, ct al, Appellants.

No. 1924.
Ida Mastellar, ct al, Appellants,
Sarah Atkinson. ct al. APpellees.
Appeal from Lincoln County.
AFFIRMED.
Syllabus. BY the Court Johnston, C. J.
In the will of one who died and left
surviving him wife, one son and six
daughters he devised a life estate to his
wife and added that after her death, Il
will and desire that the said property shall
provided that in such event he shall pay
to each of his sisters, Annie Hendrickson,
Nancy Hooks. Ida Mastellar, Sarah Jack
son, Lydia Wilson and Daisy Teach, the
sum Of Two hundred dollars l$2O0.OO) said
two hundred dollars to be paid in yearly
payments of sixty-six and tw0-thirds
dollars 1886 2-3) to each sister as above
enumerated. The first payment to be
made on the first day Of September, fol-
lowing the first day Of April after the
death of my wife. Ellen Atkinson
In a proceeding to determine the own
ership OF the property and to partition the
same 1t is HELD that the fee of the land
vested in the son upon the death OF the
sion is postponed until the life estate In
terminated, and that the son takes the fee
charged with the payment OF the legactes
given to the daughters Of the testator and
that any one who succeeds to the estate
and interest of the son prior to the COM
pletion of the payments takes the land
subject to such charges.
All the Justices cOncurr1ng.
A true copy.
Attest: d. A VALENTINE.
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 19,235.
George ]. Fox, Appellant,

No. 1925
George ]. Fox, Appellant,
VI.
w. H. Barbee, ct al. Appellees.
Appeal from Edwards County.
Syllabus. By the Court West. +.
A houBe-m0ver bought out two other
men in the same town engaged in the same
business. one of whom agreed in writing
to contract no house moving for the next
ten years. HELD, that such contract fair
ly construed merely bound the seller to
refrain for ten years from competing with
the purchaser, and il reasonable and valid,
and Its violation can be enjOined.
All the Justices c0ncurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal.J Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 10,O43.
Levi Nicholson. ct al. Appellees.

NO. 13U43.
Levi Nicholson, ct al, Appellees,
Huldah J. Nicholson, ct al. tHuldah J.
NiGholson' Appellantl:
REVERSED.
Syllabus. By the Court. Dawson, J.
l. Where money was paid In 1898 I'M
der a mistake and that mistake discovered
in December. 1903, an action for its re-
by the statute Of limitations.
2 Where the proceeds Of an estate of
been permitted by the heirs to remain
unadministered in their mothers hands
for thirty eight years and the only full
the mother that he vas entitled to the en-
tire estate and received from his mother
on IN
demanded a return thereof in 1908, on the
theory that the money was trust funds in
denied by the brother who received the
money, a suit to impress the money in his
han =; as so1 trust filed az an amended peti
mistake, when the trust had been dis
had notice thereof, such suit was barred
by the statute of limitations.
2s. 1911, recites that money was paid b.
mistake or fraud in 1898, and that m ac-
ton to recover it had been begun in Au-
been amended to plead trust character
of the money so paid and that such action
or Sn1c was d1Gm1S0ed ON July u, 1911,
and such new petition filed that day sets
up the earlier steps in the litigation and
with trust and to have an accounting
thereof; HELD, That when it il shown by
the pleadings and the evidence that the
recipient never acknowledged the trust
character Of the money, denied its trust
character. and refused its return in 1908
ON the demand Of the interested parties, a
sustained.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSea1.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1924,

No. 1924
II. B. Faler, Appellee,
]. G. Culver. as Administrator Of the
Appeal from woodson County.
AFFIRMED.
Syllabus. BY the Court; Johnston, C. J.
to correct its record by NUNC PRO
TUNC entry OF proceedings had in that
court which through accident, mistake or
neglect were not entered Of record when
the action was taken.
2. waiver of the service Of notice of
the filing and presentation of a demand
against an estate by the appearance OF
the administrator of the estate within the
statutory nertod 9t Limitation may be
shown by such NUNC PRO TUNC entry :.
the ownership of land and the partition OF
the same a defendant claimed the land
through an agreement with the owner IA
her lifetime to the effect that IL he would
remain with her and ear, care for . her and n"
come the, owner Oh all her property. He
further alleged that he had filed a de-
mand In the probate court for the value
Of the services which he had rendered. The
district court did not uphold the agree
and in the entry Of Judgment recognized
that his claim for the value of services
rendered to the owner of the land WAS
still pending and undetermined in the pro-
the disffact court did not bar him from
lttfgatintt the claim In the probate court
nor from recovering the value Of the ser
vices actually rendered by him for which
no payment had been made.
Al 4 tt the J sosy c0peurrins'
Attest: d. A. VALENTINE.
JSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
SUPREME COURT SYLLAB|.
No. 1926.
Steve Clark Appellee,

Steve Clark Appellee
r. 1. DUPONT de Nemours Powder Com
| pany. Appellant.
Appeal from GGh4aH%ta MS County.
Syllabus. By the Court. Dawson J.:
1. 1t is gross negligence for an agent Of
wsh tn AN
quart of that explosive lying near the well !:
and the act of q wOrkan, unskilled In the
dangerous article and placing it in the
stone fence r nearby graveyard to pre-
men, does not amount to an unrelated, in
tervening and efficient cause 30 as to ex-
cuse the powder company from its liability
find the soiidif:ed glycerine End are in
a commodity as solidified glycerine il re-
quired to exert the highest degree OF care
to keep it in close custody 20 prevent its
and such owner is liable for all the natural
and probable consequences which flow
3. The rules heretofore announced by
this court for the determination Of proxi-
mate cause adhered to.
All the Justices cOncurring.
Attest: D.. A. VALENTINE,
lSeal.I Clerk Supreme Court.
No. 1926.
Susanna c. Moody, Appellee.
Stella Stubbs. Appellants; Robert X.
Moody, Appellee).
Appeal from Douglas County.
REVERSED.
Syllabus By the Court. Mason, J..
1: Where a husband and wife execute
a deed upon property owned by her, and
she entrusts It to her husband to be de-
livered as security for a note executed by
him to the grantee, and the husband with
out her knowledge delivers 1t under an ar
rangement made by him with the grantee
that the note is to be renewed from time
to time. extensions Of the time of payment
of the debt, made in pursuance Of such ar
rangement, but without the knowledge Of
the wife. do not effect the release Of her
property.
2. In such case the lien upon the prop
erty continues as security for each new
note. Notwithstanding that in each instance
the old note is surrendered, and that the
new notes are made to transferee Of the
original note. 49,
All the Justices concurrfng.
Dawson, j., cOncurring specially.
A true copy.
Attest: d. A. VALENTINE,
tSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10

lions was required ~ q basis Tor re1ec-
ment such as honest and reasonable men
All the Justices concurring.
Attest: D.. A. VALENTINE,
tSeal.1 Clerk Supreme Court
No. 1925
William Sipult, Appellee,
The Wilson Land and an Grain Company,
Appeal from gedTwiek County.
AFFIRMED.
Syllabus. BY the Court. West. J.
sault by its agent foreign corporation
owning property here may be proceeded
s ssr1,a by attachment and publication
g; The plaintiffs theory was that the
and participated in an assault upon him
az means to put another lessee of a
q uc hand in
would be liable IL the testimony fairly
showed that the agent was doing. what
was acting In the line and course Of his
employment and for the benefit Of his
Of some purpose Of his own. although act
ing In wrongful manner.
. j. The testimony was such that the
was committed in an effort In good faith
to assist a constable in arrestine the plain
whether such warrant was used az a COW
er and excuse for forcibly putting one of
pos.ession q the land Occupied sasd by the
plaintiff. Touching the duty Of an ar
resting officer and the rights Ct the one
70 Sos = the
I. when the special findings are not in
substance or effect inconsistent with the
fngs can not be ordered.
All the Justices cOncurring.
Attest: pa VALENTINE,
tSeaEl Clerk Supreme Court.
= No 1e.25o.
The western. States Portland Cement
Appear lfS sonR Son Apnesssp'c County.
AFFIRMED.
1. After the plaintiff had introduced
certain evidence before the court, the de-
PENDANT being In default, a Judgment for
promptly paid into court by the defend
ant, but not received by the plaintiff. Two
the journal entry Of which recfted that
the injury was caused by the defendants
set It ssi: sSd grant new trial anS the he
the motion HE'D. that such IN" order N ~ss
2: At the time of the injury the work.
mems compensation act of 1911 laws of
1911. ch. 21S, Sec 81 was in force. There
was neither allegation nor proof that the
defendant corporation had elected to come
within its provisions, but there was some
evidence that it had not done SO, HELD,
that the court properly assumed and In
structed that such an election had not
been made
B. A complaint of the rejection Of evil
dence can not be considered when such
complaint ie based on nothing appearing
in the record.
4. quarry man forty-three years of
age who was making from SLIP to $500 a
day had his arm injured by the falling Of
a suspended rock, after. which injury an
X-ray disclosed a fracture of the radius.
Two operations were performed but at the
trial fourteen months after the injury 1t
were not united The plaintiff testified
that It took him about three weeks to do
five days work and that he had suffered
much pain and had NO control over his
injured arm. HELD, that a verdict for
substantially 5000 is not excessive
All the Justices concurrfng.
true copy.
Attest: d. A. VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1922.
Alice Hartman, Appellee,

NO. lJSSS.
Alice Hartman, Appellee,
The AtchisOn, Topeka and Santa Fe Rail-
way Company, Appellant.
Appeal from Harper Count.
AFFIRMED.
Syllabus. BY the Court. Marshall, j.
A collision between freight trains, caused
by the negligence of the railways en-
ployees, resulted in the wreck of a num-
Der Of cars loaded with cattle, from which
a number of wild, dangerous, Texas cattle
escaped into the city of Harper, Kansas,
where, while they were being gathered up
and driven to the stock yards: by persons
employed by the railway for that purpose,
one of the cattle, a cow. attacked and in
jured the plaintiff, who was walking on
the sidewalk; this COW, after the wreck,
before attacking the plaintiff, having
made three separate attacks on one Of the
employees driving her The railway is
held liable for the damage done by this
COW to the plaintiff
Burch, J., Mason, J., and Dawson, J.,
cOncurring.
Johnston, C. J., Porter, J., and West, T..
dissenting.
A true copy.
Attest: D.. A. VALENTINE,
[Seal.] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10

No. 1929
Meyer-Bridges Company, Appellant,
The American Warehouse Company, APP
pellee.
Appeal from Sedgwick County.
Second division.
AFFIRMED.
Syllabus. BY the Court. West, J..
I. One of several provisions in a writ
Company to have privilege Of selling on
Commission of $500 per ton. Prices to be
made by Louisville Broom Works. HELD,
to fix prices at which the warehouse com
pany could sell and earn the commission,
and was not to be a mere option or agency
2. Officers and other witnesses for the
two companies testified quite fully as to
the course Of dealing SO that the claims
peared. Certain correspondence between
them touching the matters thus testified
about was rejected. HELD. that while
that its admission would or should have
led to a different result hence there was
no material error in such exclusion.
the hearing Of the motion for q. new trial
it was stipulated that 1t should be consfd-
cred as then offered and should be consid-
ulation was not a compliance with section
3O7 Of the civil code, but whether or not
it amounted to a waiver 20 a. to supersede
paragraph. becomes immaterial-
4. Expenses, erroneously called com
missions. in purchasing broom corn on the
eSarses snd d " Between them
5. The instructions were drawn upon
the theory that the contracts between the
parties were binding and not merely op-
tonal. HELD. proper.
All the Justices concurring.
Attest: D. A. VALENTINE,
tSeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
II. A. VALENTINE.
: Clerk Supreme Court.


-r... No. 1871.
The Shawnee Fire Insurance Company, q
Corporation, Appellant.
The National Surety Company, q Corpora
ton, Appellee.
Appeal from Shawnee County.
division No. ~
AFFIRMED.
Syllabus. BY the Court. Johnston, c. j.
An action brought in the state court
against a foreign surety company which
Is admitted to do business in the state
upon the same terms and by the same pro-
cedure as foreign life insurance companies
are permitted to transact business here
may be ,remoyed to the federal court II
the case IL a removable. one within the
provisions OF the acts Of congress, not
withstandin the company may have Med
its written consent in the insurance de-
partment in pursuance Of the provision Of
section 1922 Of tho General Statutes OF
1909 that actions against the company may
be commenced In the county where the
cause Of action arose or In which the
plaintiff resides.
All the Justices concurring except Daw-
son. J., who did not sit.
A true copy.
Attest: ID. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1850

No. 1850.
NJ. A. Hutterer. Appellee,
John X. ByIer. Appellant and H. g. Cons,
ct al. Appelleee.
Appeal from Flnney County.
AFFIRMED.
Syllabus. By the Court. Johnston, C. J.
In an action to recover damages against
a party for wrongfully deprivfng IN owner
Of his land by obtaining q deed thereto
from a former owner and also q judgment
9uiettng his title to the land ~ against
the real owner and by subsequently con-
veying the land to an innocent pur-
chaser, judgment was rendered against
such party for the value Of the land
but an attorney who represented him In
the litigation and was made q party de-
PENDANT in the action was held not to be
guilty Of fraud which would render him
liable for damages HELD. upon an appeal
from finding and Judgment In favor Of
the attorney, that there II evidence to sup
port the finding.
All the justices concurring except Mason.
J., who did not sit.
A true copy.
Attest: d. A. VALENTINE.
ISeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1924.
w. p. KnOte, Appellant,

No. 1924.
w. p. knOte, Appellant,
vs..
Charles Bense and Eunice Bense, Appel
lees.
Appeal from Sedgwick County.
Division Number One.
REVERSED.
Syllabus By the Court. Dawson, J.
The rule followed that parol testimony
IL not admissible to alter the terms Of q
written instrument.
All the Justices cOncurring.
true copy.
Attest: D. A. VALENTINE,
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 19.24S.
J. W. Williamson, Appellee,

NO. l9,S4S.
j. w. Williamson, Appellee,
vs..
The Prairie OIL and Gas Company, q Cor
pOration, Appellant.
Appeal from Montgomery County.
AFFIRMED.
Syllabus. By the Court. Dawson, J.
1. 1t is not error to incorporate into the
courts instructions the plain and simple
language Of the pleadings when the issues
are fairly presented to the jury by the
instructions q whole
2. Unless an instruction is misleading,
error cannot be predicated upon 1t when
1t is supported, amplified and explained
to the jury by other instructions.
8. Error cannot be predicated upon nm
instruction that the jury may find for the
amount prayed for. when the jury only
award half that sum on sufficient evi-
dence.
4. Future pain and suffering as an in
cident to physical injuries is a proper ele-
ment OF damage,-fOllOwing City of Ar
kansas City V. Payne, so Kan. 253, 1O2
Pac. 1871.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
lSeaI.j Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1925.
Minnie c. Scholz and Charlotte L. -Hoth,
Appellees,


Henry F. Hoth, Appellant
Appeal from Reno County.
MODIFIED.
Syllabus. By the Court Burch, j.
1. The evidence examined and held suf-
fcient to warrant the submission to the
jury Of the question whether or not a
tract of land was purchased under an
agreement between a father and son that
the son should own the land and that the
legal title should be held by the father.
to whom the land was decided. until pof-
ton Of the purchase price advanced by
the father was repaid.
2. 1t il not essential that the agree
pent referred to be established by direct
evidence. 1t may be inferred from facts
and circumstances.
3. Should the agreement be established,
upon the death Of the father his widow
would have no interest in the land under
section 2942 of the General Statutes of
1909, providing that one-half in value of
all real estate in which the husband at
any time during the marriage had a legal
or equitable interest, not sold at Judicial
sale, not necessary for the payment of
debts. and Of which the wife has made NO
conveyance shall be set apart as her prop
erty in fee simple.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
I ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1924.
Victor Suniga, Appellee,

No. 19,224.
Victor Suniga, Appellee,
vs..
The AtchisOn, Topeka e. Santa Fe Railway
Company, Appellant.
Appeal from Sedgwick County,
Division No. L.
AFFIRMED.
Syllabus. BY the Court Johnston, c. J.
L. The plaintiff who was an employee
of the defendant suffered an injury while
replacing a hand-car upon the track which
he and three others had previously re-
moved. The negligence charged by the
plaintiff and found by the jury was that
defendant failed to furnish q sufficient
number of men to handle the car with
safety. HELD, that the fact that four
men had lifted the car from the track and
that three men had lifted 1t at another time
under different conditions does not over
throw the finding in favor of the plaintiff,
and HELD, FURTHER, that there is SUI
ficient evidence to support the finding.
2. To preclude a recovery on the ground
of the assumption of risk the plaintiff
must not only have knowledge of the ex-
listing conditions but he must have real
lied and appreciated the assumed dan
ger resulting from the conditions, and 1t
Is further held that the finding of the
jury that the plaintiff only partly realized
the danger of the undertaking is support
ed by the evidence.
All the Justices cOncurring.
true copy.
Attest: D. A. VALENTINE,
[Seal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 10, go.
f. E. Harrison, and Mary J. Harrison. APP
pellants,

No. 10, go.
+. e. Harrison, and Mary J. Harrison. APP
pellants,
Va.
]. n. Foster aud Irene E. Foster, Appelleeo.
Appeal from Saline County.
AFFIRMED.
Syllabus. BY the Court. Burch. J.
husband and wife reside in hotel
conducted and managed by the wife in, her
own name. They have one child aud the
wife has a child by former husband.
who resides with her. The household fur
nitnre used in the hotel belongs to the wife
and does not exceed In value the sum OF
five hundred dOllars. In an action Of debt
against both husband and wife the house
hold furniture was attached. Both defend
ants moved to discharge the attachment on
the grouM the property is exempt ,,d Mn AZ;
Of the General Statutes Of 1909, providing
but every person residing in this state AMI
being the head of n family shall have ex-
empt from seizure and sale on any attach
ment specified household articles and all
other household furniture not exceeding In
value five hundred dOllare.
All the Justices concurring.
Attest: u. A. VALENTINE.
[Seal,l g, s.fsi.= Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
LEGAI.
No. 1o,214.
: =. Finnup, Appellee,

School District Number Forty, Of Einney
County, Kansas Appellant.
Appeal from Finney County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
A school district IN liable, to an Innocent
holder on ite refunding bonds, issued un-
der chapter 80 Of the Laws Of 1879, where
the bonds recite that all acts. conditions
and things. required to be done precedent
to and in the issuing of the bonds, have
been properly done, happened. and per-
formed, In regular and due form ~ re-
qutred by law, although there II . GER
tificate Of the district board accompany
Ing the bonds, purporting to recite some.
but not al, OF the steps taken preceding
the issuance Of the bonds the certificate
not contradicting the recitals In the
bonds.
An the justices concurring except
Mason, J., who did not cit.
A true copy.
Attest: d. A. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10

PATENTS.
&c RosEN. PsssSi ssiSrnsS. Is Kan
oas ave-. Topeka, Kan.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10
No. 1928.
j. Shoner, ct al, Appellees,

No. 1928.
j. Shoner, ct al, Appellees,
vs.
George A. Frisbie, County Treasurer Of
the County of Jefferson, ct al, Appel
1ants.
Appeal from Jefferson County,
AFFIRMED.
syllabus. By the Court. Porter, J.
A board Of county commissioners acting
under chapter 204. laws Of 1891, authoriz-
ing it to establish and construct drain
age ditch, can exercise only those powers
expressly conferred and such others as are
necessarily or fairly implied in, or which
are incidental to the power expressly grant
ed, and where the express power granted is
to construct the ditch and to levy taxes
upon the property benefited thereby to
pay the cost of construction and of Keep
Ing In repair the ditch and bridges over
the same, the board has no implied author
ity to build new bridge and to levy
tax upon such property to pay the cost
All the Justices concurring except Daw-
son, J., who did not sit
A true copy.
Atteet: ID. A. VALENTINE,
tSeal.I Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-02-10

No. 1925
The City of Salina, Appellee,
vs.,
Carrie Snead, Appellant.
Appeal from Saline County.
AFFIRMED.
Syllabus. By the Court Mason. J.
The record in a prosecution for main
tanning liquor nuisance examined and
held to show material error.
All the Justices concurrfng.
A true copy.
Attest: d. A. VALENTINE,
ISeal.] Clerk Supreme Court
No. 1875.
The State of Kansas, Appellee,
Andy Caldwell, Appellant.
Appeal from CoWley County.
REVERSED.
Syllabus By the Court. Marshall, J..
L. The law Of self defense was correctly
stated in the instructions.
2 A motion for new trial 10 properly
denied. which sets up the affidavit Of q
witness contradicting his evidence a
material point given on the trial, when 1t
is not shown that the defendant did not
have a fair opportunity to rebuff the EVIL
dence at the trial, and when 1t does appear
that other witnesses testified ON the trial
corrObating the evidence of the witness
making the affidavit, AZ given on the trial.
B. When the State has made every rea-
sonable effort to procure the attendance q