davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
d. A. VALENTINE,
Clerk Supreme Court.
No. 19,401.
John II. Feldhut, Appellee,


John W. Brummitt and Emma NJ. Brum-
mitt, Appellants.
Appeal from Clark County
AFFIRMED.
Syllabus. BY the Court. Dawson, j.
1. The plaintiff and defendant made II
contract to exchange landed properties
and named a real estate agent as deposit
tary to hold their respective deeds until
their abstracts of titles were approved
Notwithstanding the disapproval of de-
PENDANTS title, the real estate agent deliv
cred plaintiffs deeds to defendant. In
suit for rescission and cancellation of
plaintiffs deeds, the issue turned largely
upon the question whether a certain irriga-
ton ditch and certain rights of way for
irrigation bitches were Membranes on
the land.
HELD (a) That the established irrigation
ditch plainly observable on the property
was not an incumbrance to the extent OF
being a breach of covenant
Obi Rights of way for irrigation bitches
encumbering the record, indefinite in eX-
tent not vet established nor open to view
by inspection of the property, with the
rights of the servient fee-hoider unleter-
mined, do constitute membranes in
breach of covenant
.. General findings in favor of plaintiff
and conclusion of law based thereon ex
amined and approved.
All the justices concurrlng.
A true copy. -
Attest: D. A. VALENTINE,
(Seal.l Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1861.
Noble Hagar. Appellee.

Noble Hagar, Appellee,
The Grand Lodge, A. o. Z. W. of Kansas
Appellant, and Sarah s. Hagar, Appellee
Appeal from Franklin County.
REVERSED.
Syllabus. By the Court Dawson, J.
L A fraternal society issued to one
of it's members en- insurance certificate for
81, 600 naming the plaintiff as beneficiary
Later at the request of the member it is
sued another certificate naming another
beneficiary On the death of the member,
the plaintiff sued to recover on the first
certificate and implicated the beneficiary
under the second certificate The second
beneficiary answered and filed a cross
petition setting up the beneficiary certifi-
cate in her favor The defendant society
paid the sum of 1000 into court. admitting
that IL owed somebody that amount. The
court gave Judgment in favor of plaintiff
for $4,000, and Judgment in favor of the
CROSSE petitioner for s., 000 An examination
of the pIeadings shows that both benefic-
iaries were claimants for the same fund
and their issues were framed that
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
ORDINANCE NO. 1889.

AN ORDINANCE Repeating Ordinance No.
Pip, approved August 8. 1906.
BE IT ORDAINED BY THE BOARD OF
COMMISSIONERS OF THE CITY OF
TOPEKA:
Section 1. That Ordinance No. PIP, ap-
proved August O. 1906. entitled "An ordf-
nance creating the office of city forester
of the City of Topeka, prescribing his
duties and fixing his salary" be, and the
same is, hereby repealed.
Sec. 2 This ordinance shall take effect
and be in force from and after its publica-
ton in the official city paper
Passed the Board of Commissioners July
IL, 1915.
Approved July 13, 1915
tSeal.l JAY z. HOUSE, Mayor.
Attest: ETA NJ. COVELL, City Clerk.
IPubiished in The Topeka State Journal.
TuIx-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1902.
A. N. Stinson, Appellee,


A. N. Stinson, Appellee,
w. NJ. Bell ct al CIV. NJ. Bell and Mary
f. Bell, Appellants.)
Appeal from Einney County.
AFFIRMED.
Syllabus. By the Court Dawson, J.
1. Where foreclosure proceedings are
brought on a note and mortgage because
of default in the payment of interest and
taxes, and the note and mortgage fail TO
state in specific terms the time when the
interest is payable, 1t is proper for the
court to look to all the terms of the in
struments to determine the time when tie
interest should be paid, and where these
terms construed together reasonably war
rant the Interpretation that the interest
is payable annually, such determination Y
the trial court will not be disturbed on
. Where an alleged error in the compu
tation of interest is neither apparent nor
specifically pointed out, the general find
ing of the district court will not be dis
turbed.
g. Where the wife of a mertgaSor of
unoccupied Kansas land comes into court
on a publication service and admits that
she Joined with her husband in the execu-
ton of note and mortgage, and no per
sonal Judgment is sought against her, she
has no appealable interest in the lands
of her husband subjected to foreclosure
under judgment based on such note and
mortgage.
All the Justices concurring.
true copy.
Attest; d. A VALENTINE.
[SealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 10. sos.
A. Bass. Appellee,

No. 19.6O0-
A. Bass. Appellee,
VS..
The Life and Annuity Association, Appel
liant.
Appeal from Mcpherson County
MODIFIED.
Syllabus. BY the Court. Mason. j.
1. Statements of the conditions and eff
feet of a beneficiary certificate printed
upon the back of the document. have the
same effect as though incorporated therein.
2 Apart from any question of power
to alter the terms of the contract, a pro-
vision Of a twenty year payment beneficial
certificate issued by q fraternal assOcia-
ton, giving the holder the right to cease
payments at any time and receive paid up
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1867.

No. 19,607.
The Great Western Machinery Company,
Corporation, Appellee,
VS..
J. C. Smith and D. d. Berger, Appellants.
Appeal from Saline County.
AFFIRMED.
Syllabus. By the Court Porter, J.
In former decision in the same case ,ls7
Kan. 331, 1924 Pac. 414) it was held that
a statute of Colorado upon which the cause
Of action rests is not purely penal but is in
part compen satory and will be enforced in
this state. 1t is further held that the
statute in question is not so far penal as
to bring it within the provisions of the
one year statute of limitations (Civ. Code
Sec IT, sub. ~, which provides that an
action upon a statute for a penalty or
forfeiture must be brought within one
year.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
TSeaI.l Clerk of Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1923.
A. F. Underwood, Appellee,

Henry F. Fosha and Henry Quantic, APP
Appeal from Riley County.
AFFIRMED.
Syllabus. BY the Court. Dawson, j.
1. Rule followed that finding of the
Jury upon sufficient and competent testi-
mony is conclusive on appeal
.. Findings of fact examined and found
not inconsistent.
8. When promissory notes pass iuto the
hands of an innocent holder for value be
fore maturity. all equitable defenSeS
cut off: and although the assignee of such
holder had notice of the original infirTnitieS
of the notes, he takes by assignment all
the rights of his assignor, and
cover on the notes whether he acquires
them before or after maturity.
f. Special questions examined and found
unobjectionable, following chapter 80 of
the Laws of 1913.
; 1t is not error for the trial court,
after a jury has deliberated on u case for
two days, to give additional instruction.
G. Refusal to give requested instruction
examined and found not erroneous.
l. Where lawyer from distant state
closed his argument to the jury by eX-
tending to them and to the trial judge an
invitation to visit his state and promised
to make their visit pleasant, it is held that
such remarks, while improper, do not
stitute reversible error.
All the justices concurring.
A true copy
Attest: d. A. VALENTINE
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

AN ORDINANCE Repeating Ordinance. No.
$40. approved June g, 1881
BE 1T ORDAINED BY THE BOARD OF
COMMISSIONERS OF THE CITY OF
TOPEKA:
Section l. That Ordinance No. 379, ap-
proved June 6, 1881, entitled. IAN ordi-
nance relating to and prescribing the duties
of City Treasurer, and to repeal ordinance
number eleven, approved May 21, 1866, and
section two of ordinance number sixty-five,
approved May 13, 1865" be, and the same
is hereby repealed.
Sec. 2. This ordinance shall take effect
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
ORDINANCE NO. 447S.

AN ORDINANCE Repeating Ordinance No.
2644. approved December -, 1905.
BE IT ORDAINED BY THE BOARD OF
COMMISSIONERS OF THE CITY OF
Topeka:
Section l. That Ordinance No. 2644
approved December 49, 1905, entitled, IAN
ordinance approving and adopting rules
and regulations for the management of
the system of water works of the City of
Topeka, and establishing rates to con-
sumers of water furnished by the water
works department of the city of Topeka"
be, and the same is, hereby repealed.
Sec. 2. This ordinance shall take effect
and be in force from and after its publ
cation in the official city paper.
Passed the Board of Commissioners July
IL, 1915.
Approved July Is. 1915.
ISeaIJ JAY f. HOUSE, Mayor.
Attest: ETA NJ. COVELL, City Clerk
Published in The Topeka State Journal,
Julv II 1891
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1861.
Ruth Dillon, Appellant,

Ruth Dillon, Appellant,
Chas. Bron, Anna Rron, E. ID. Kimball
(Revived in the name of Edward Little,
Administrator of the estate of q D..
Kimball, Deeeased), ct al, Appellees.
Appeal from Sedgwick County.
(First Divisfon.)
REVERSED.
Syllabus. By the Court. Marshall, j.
1. Where the -indorser of a pronissory
note, at the time of its negotiation, prom
ises the indorSee to look after the note,
and states that the money will be in bis
hands and on the day that the note is due
again promises to look after the note, pre-
sentiment and notice of non-payment of
the note are waived.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

No. 1906.
John Whalen. as Trustee of the Estate of
s. c. Wolford, Bankrupt, Appellee,
VS..
J. r. Wexford, Mrs, n. Wolford; the wife
William Nellie, Appellants.
Appeal from lincoln County.
MODIFIED.
Syllabus. By the Court. West, J.
A father contracted to convey to his son
a tract of land for five thousand dollars,
gift, the remainder to be paid in five equal
annual payments with six per cent. per
annum. Afterwards, before paying any
part of the four thousand dollars the son
on his own petition was adjudged a bank
rupt." In an action by his trustee to quiet
his title to the land as against the father
the latter was. entitled to a lien for the
four thousand dollars and interest, and was
not precluded therefrom by reason of hav-
ing filed claim with the trustee.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE,
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1862.
S. D. Mcmahon, Appellant,

5 D. McMahOn, appellant,
The Joplin & Pittsburg Railway Company,
ct al, AppelleeS.
Appeal from Crawford County.
REVERSED.
Syllabus By the Court Mason, J.
1. Where a traveller in attempting to
drive across railroad track becomes III
voIved in such n situation that he
neither get over it nor turn back. the
railroad company is liable. notwithstan1in
any prior negligence on his part, for the
consequences of a collision which its en-
ployees could have averted by any reason
able effort after the time when they
ought to have discovered his predicament
ant on the special findings 1.-THE general
verdict being for the plaintiffl is re-
ouired by law as declared in the instrHc-
lions, but not by the law as it is deterin-
ined to be by this court, such Judgment
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.

will not necessarily be approved on ap-
peal, Notwithstanding the plaintiff, not
having filed motion for new trial, can
structions
3. A new trial should be allowed to a
defendant against whom a verdict las
been rendered, when the special findings
would require Judgment in his favor, eX-
cept for the possible existence of facts, of
thereby negatived, and which are not COW
cred by the general verdict because no is
sue regarding them was submitted to the
jury.
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, 1915-07-17
LEGAL.

hypothesis, and it was error to award
judgment on both certificates.
. When the conflicting rights and
equities of two claimants to fund render
claimant without doing gross injustice to
the other, the district court has power In
the exercise of its sound discretion to
make an equitable division between them.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL


certificate for a proportionate part of the
amount named, is not affected by the re-
peal of bylaw to the same effect, in the
absence of anything further to show that
such result was intended.
q The fact that no means have been pro-
vided for enabling an incorporated fra
ternal beneficiary association to respond to
money demand, does not make it immune
from liability in that regard, nor prevent
the rendition of a Judgment thereon.
A. Where fraternal beneficiary associ-
alton wrongfully refuses to issue a paid
up certificate in accordance with an agree
ment, the damages are not to be measured
by the cost of a paid up policy of insur-
ance for the same amount in an old line
company, but where the test of the cost
of q substitute is applied. reference must
be had to the cost of a precisely similar
paid up certificate, in an association of
precisely the same kind.
5. In the present case, the wrongful re-
fusal of a fraternal beneficiary association
to issue a paid up certificate having been
characterized by bad faith, 1t is held that
Justice will be best subserved by giving it
further opportunity to issue such certifi-
cate, before sub1ecttng it to liability for
damages
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1903.
Fred Anthony, Appellee,


Ida A. Kiefner ct al, Appellants.
Appeal from Sedgwick ounty.
division No. IL
MODIFIED.
Syllabus. By the Court. Johnston, c. !:
l. A mother accepted the invitation or
her son to ride In his automobile merely
as his guest and she had no control
and took no part in the management of
the automobile she is not responsible for
injuries inflicted upon another oy the
negligence of her son in driving the au-
tomobile.
. If the journey had been undertaken
as joint enterprise to accomplish q conn
mon purpose for the benefit OF both one
of them might have been regarded as the
agent of the other and she might have
been responsible for injuries inflicted py
the negligent operation of the automobile:
but it is held that her mere request CT
her son that some time during the ride he
should call at Il certain house and obtain
cake that a friend had promised to MAKE
for her did not make the trip joint enter
prise nor make her responsible Tor tue neg
ligence of her son nor for injuries TO Wnicn
she did not personally contribute
,. The mere fact that the mother, VINO
was sitting by the side of her son anu as
his guest, did not protest against his ac-
ton when he drove his automobile at an
excessive rate of speed for the distance cf
a little more than a city block at the END
of which injury was inflicted can not De
held cuIpable negligence on her part
which would make her liable for his negl1-
gence and the resulting injury.
All the Justices concurr1ng.
true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1883.
Ida Runbeck, Appellee,

VS..
The Farmers & Bankers Life Insurance
Company, Appellant.
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. By the Court. West, j.
L. An insurance company which for a
number of years permits a certificate hold
er to be in default from two to thirty
four days in the payment of his assess
ments without complaint and continues
to forward receipts for such assessments
with no claims of forfeiture demand
for physical examination, thereby adopts
9. practical rule that until otherwise noti-
fled such holders payments will be re-
ceived if paid within a reasonable time.
2. When after such a course of dealing
the holder died six days after an assess
ment became due, and payment was ten:
dered immediately and blanks for proof of
death demanded, which tender and de-
mand were refused and liability wlS de-
MED, the certificate was still in force and
the company was liable.
3. Such company having sold and de-
livered all its assets to the defendant com
pany which agreed to assume the iiabi1-
tiles of the issuing company the defendant
company is liable ON such certificate.
All the Justices cOncurring.
A true copy.
Attest: D. A. VALENTINE,
LSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1850.
L. D. Compton, Appellee,

NO. 1Y6Iy.
L. d. Compton, Appellee,
Everett Akers ct al Appellants.
Appeal from Sumner County.
AFFIRMED.
Syllabus. By the Court. West, j.
A widow who elects to take under her
husbands will thereby bars herself and her
heirs from inheriting property of the hus-
band undisposed of by will.
Johnston, C. j. Burch, J.. Mason, J.,
Porter J., and Dawson, J., concurring.
Marshall. J., dissenting.
A true copy.
Attest: u. A VALENTINE,
[Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.

and be in force from and after its publica-
ton in the official city paper.
Passed the Board of Commissioners July
II, 1915.
Approved July 13, 1915
ISeall JAY Il. HOUSE. Mayor.
Attest: ETA NJ. COVELL, City Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1862.
Joseph e. Robinson, Appellee,

Joseph f. Robinson, Appellee,
The Union Central Life Insurance Com
pany, Appellant.
Appeal from Finney County.
MODIFIED.
Syllabus. By the Court. Marshall, J.
Where a life insurance policy, dated
April 81. 1898, is taken out, and paid for
by the insured and Is made payable to
death, and provides that upon legal sur
render of the. policy the. company will
on the thirtieth. day of April, 1913, pay
amounting to 1882 if the policy shall not
have been previously terminated by lapse,
which is made a part of the policy, the
insured stipulates that the reserve shall be
paid to himself, he can enforce payment
of the reserve to himself upon the surren-
der of the policy after April 80, 1913 even
If the beneficiary in the policy refuses to
consent to such surrender or payment.
All the Justices concurring.'
A true copy.
Attest: D. A, VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

Published in The Topeka State Journal
July II, 1851
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
d. A. VALENTINE.
Clerk Supreme Court.
No. 1859.
The Oregon Railroad & Navigation Com
pany, Appellee,

o. l.. Thisler, Appellant.
Appeal from Dickinson County.
AFFIRMED.
Syllabus By the Court. Marshall J
l. Where q cause is remanded from this
court to the trial court for the determiu-
alton of a single question, under section 30T
of the code of civil procedure (Gen. Stat.
1909 sec 5000. and that question is de-
termined and Judgment is rendered accord
ingly, the Judgment will not be disturbed
in this court, unless there is pretudicial
error in determining the question submit
ted.
. Where a cause is remanded for the
determination of a single fact, questions
not involved therein will not be considered
on an appeal from the judgment rendered
on its determination.
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE,
(Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.
ORDINANCE NO. 4475.

Published in The Topeka State journal.
July II, 1915
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
d. A. VALENTINE,
Clerk Supreme Court.

No. 1866.
J. E. Brewer and c. 8. Brewer, copartners
etc, Appellees,
VS..
The Western Union Telegraph Company,
Appeal from Dickinson County.
Appellant.
AFFIRMED.
Syllabus BY the Court. Mason, J.
In an action against telegraph COM
pany for damages, resulting from an error
In Transmitting telegram ordering a
shipment of eggs, the evidence is held suffi-
Client to support findings that they, We're
was able to obtain for them. and that he
understood, and had sufficient ground for
understanding, that the order referred to
candled eggs.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
TSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
No. 1866.
The City of Ottawa, Appellee,

The City OF OTTAWA, Appellee,
The Ottawa Gas & Electric Co., Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus. By the Court Burch, J;
In action to recover an installment
of money due under a contract reply
which denies each and every material aver
ment of the answer except those not spe-
admits nothing and which as a second
ground of reply states that all the matters
and things alleged in the answer existed
at the time of the trial of former action
for the recovery of another installment due
under the same contract and were then or
then could have been adjudicated, does not
admit the allegations of the answer
All the justices concurring.
Attest: D. A. VALENTINE,
TSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
AND POCKET TABLES.
MOVING.

Kenmore McKNAUGHT MOVING
Co. Household goods, 800 per large
van load Expert furniture packers. Phons
B1-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
ATroRNEYs-AT-xAw.

A. r. QUINTON, attorney at law. Office
1856 Mulyane Bldg Examination OF abb
stracts and real estate titles a speciality.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
d. A. VALENTINE,
Clerk Supreme Court
No. 1914.
No. 19414.
The Washington National Bank, Appellee

No. 19,414.
The Washington National Bank, Appellee
j. p Rooney, Sadie Rooney and John
Rooney, Appellants.
Appeal from Washington county
AFFIRMED.
Syllabus. By the Court Burch, }.
l. An affidavit in replevin examined
and held to be such that its defects could
be remedied by amendment after the or
der of delivery was issued and executed.
2. chattel mortgage in form joint
mortgage to secure the joint debt OF two
mortgages my be released by one of them
without the knowledge of the other for
the purpose of permitting a new mort
gage given by the mortgagOr to secure
a consolidation of mortgages prior to the
this may be done although the sum Sc
cured by the released mortgage was in
fact made up of separate debts due the
mortgages seyerally, the holder of the
mortgage being ignorant of the sew
eral nature of the instrument.
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, 1915-07-17
FOR RENT-STORE ROOMS.

STORE ROOM at ia East Fifth street.
Heat and water furnished. /. L. Better.
FOR RENT-Store building or warehouse,
127 N. Kansas ave. Call phone 701.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17

TPublished in The Topeka State journal,
July II, 1e15.l -
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1915-07-17
LEGAL.
Continued from Preceding Page.I

CONTINUED from Preceding Page.]
No. 19,40S.
z. s. Holsapple, Appellee,
Almer Porter, ct al Appellants.
Appeal from Logan County.
AFFIRMED.
Syllabus. By the Court. Johnston, c. j.
In an action charging defendants with
having tortiously cut and converted grass
which the plaintiff had obtained under a
lease from the owner of land it was not
error to permit the plaintiff to offer testf-
mony as to the value of hay or cut grass
in the neighborhood of the land from
which the grass was cut.
All the Justices concurring.
A true copy. ,
Attest: d. A. VALENTINE,
[Seall Clerk Supreme Court