davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 20,036
J. J. and W. T. Muenzenmayer, Partners
as J. J. and W. F.Muenzenmayer, APP
pellees,
Joseph Hood and William Hood, APP
pellants.
Appeal from Geary County.
AFFIRMED.
Syllabus. By the Court. West, J.
The plaintiffs assisted machinery COM
pany in selling engine and separator
to one of the defendants for 81 200 and
in the sum of s., 305 The plaintiffs guar
anteed the machinery to work satisfac-
torily, and purchased the notes given to
the vendor The engine proved defective
and the purchaser made repeated com
plants and after certain efforts by the
plaintiffs to adjust it they advised the
purchaser to see what he could do with it
consent, he traded the engine towards a
new one and took up the old notes with
the ones sued on, which ne secured by 4
mortgage covering the separator and the
engine. This was some two years
after the execution of the original notes,
and when giving the new notes he was told
by the plaintiffs that he would finally he
the old engine. During the first season
he paid $500, the next season $500 and
later $500 more. In an action on the notes
last given he sought to recoup damages for
breach of warranty of the old engine. Held,
that he is estopped-
Porter, J., Marshall, J., and Dawson, J.,
concurring.
West J., dissenting.
A true copy.
Attest: D. A VALENTINE.
[SealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 19,949.
Carherin. Proctor, Appellee,

No. 19,949.
CaCherin. Proctor, Appellee,
George C. Fife. ct al, Appellants.
Appeal from WyaEdotte County District
Court. Division No. 1.
REVERSED.
Syllabus. By the Court Burch, J.
The action was one for damages for
breach of a covenant against taxes con-
tanned in a warranty deed. The defense
was that the deed should be reformed. on
the ground of mutual mistake. so that the
covenant would speak from the date of the
contract of sale and not from the date of
b. Iced. The defense was fully estab-
Hshed by parol evidence, which was not
disputed, the contention of the plaintiff
being that the evidence was not admissible
and that as a matter of law the covenant
spoke from the cate of the deed. Held the
deed should be refo rTned.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
[SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 10 1913.
The Pneumatic Scale Company, Ltd, a
Corporation, Appellee,
vs.
The Carey Salt Company. Appellant.
Appeal from Reno County
AFFIRMED.
Syllabus By the Court Dawson, J.
The issues evidence, rulings and judg-
ment in an action for rents for the use
of a weighing machine examined and the
result approved.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
tSea1.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 20 OIL
Adele Hoffman. et al, Aprellees
VS..
F. W Charlatt, Appellant.
Appeal from Edwards County
AFFIRMED.
Syllabus By the Court. Burch J.
Findings of fact eXemined and held to
be consistent with each other and with
the general verdict. Held further that an
instruction was properly given the jury
relating 70 the management of vehicles on
a public highway when the driver of an
automobile intends to pass a horse and
buggy in front of it
All the Justices concurring-
A true copy
Attest: d. A VALENTINE
[SeaLl Clerk of Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No 20,035.
NJ D. Gender, Appellant,

J. F. Dodge, Agnetta Dodge and Chas
o. johnson. Appelfees.
Appeal from Gray County.
REVERSED
Syllabus. BY the Court. Porter ].
l. PriTaa facie Z promissory note is not
a payment or discharge of the original
Indebtedness and the burden rests upon
the person who claims that it was given
and accepted such
2 4 petition contained two counts, one
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 20032
Theodore Schultz, Appellant and Appellee,
Alfred Stiner, Appellee and Appellant
Maud Stiner ct al. Appeliees
Appeal from Decatur County
Affirmed except as to one ruling, which is
reversed
Syllabus. By the Court Mason.
l. An attachment affidavit which ouiifs
to state the sum the affiant believes the
Plaintiff ought to recover, but which re-
cites that the defendant has been used
as endorsee OF note, and that the claim
is just, due and unpaid, is not void. but
capable of amendment
Attachment proceedings are not rem
dered materially defective by an omission
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 1893.
Drusilla Pyles, Appellee,

Drusilla Pyles, Appellee,
The Atchison, Topeka & Santa Fe Railway
Company, Appellant
Appeal from Cowley County
REVERSED.
Syllabus. By the Court. Mason, J.
L In an action for wrongful death,
under the federal employers liability act,
a general verdict for the plaintiff must be
set aside where the jury declare in one
finding that the accident would have hap
pened even il the decedent had not been
negligent, and in another that his negli-
gence contributed to it, no deduction from
the amount allowed appearing to have been
made on that account
= A rule OF a railroad company that at
certain places all trains and engines will
have the right to work within yard limits
regardless of extra trains, but will give
way as soon as possible upon their ap-
proach, and that such trains must ap-
proach yard limits under control. the re-
spOnsibility for accident at such points
resting upon them, does not place duty
upon employees in charge of switch en-
CINE working upon the main track at a
station to withdraw therefrom Immediately
upon notice of the approach of an extra
train at some distance
/ j. such rule, however, does not ex-
empt the employees in charge of the
switch engine from taking any precau-
tions, to avoid collision with an approach
ing extra, that may in view of all the cir
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 20,011.
Edith L'Ecuyer, Appellee,

No 20,011.
Edith L'Ecuyer, Appellee,
VS..
The Indemnity Life & Accident Company,
Appellant.
Appeal from Cloud County
REVERSED.
Syllabus. By the Court. West, ).
The undisputed facts involved herein
examined and held to be such that it was
error to overrule the demurrer to the
plaintiffs evidence, and that the instructed
verdict requested by the defendant should
have been directed.
Johnston. C. J.. Burch J., Mason, J..
Porter j. Marshall, J., and Dawson, J.
concurring.
West, J.. dissenting.
a true copy. -
Attest: D. A VALENTINE,
TSeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 1882
W. H. Emery, Appellant,
VS..
Edgar Bennett, Appellee
Appeal from Washington County
AFFIRMED.
Syllabus. BY the Court Dawson, j.
L Although section 10 of the civil code
requires that the answer to a petition in
an action founded on a written instrument
for the unconditional payment of money
shall be verified, the verification is waived
when the plaintiff joins issue on the an
swer introduces evidence contradicdng
such defense, and asks instructions cover
ing his theory of the law pertaining there
to.
3 The duty of an attorney as an officer
of the court is to assist the court in ar
irving at just and lawful conclusion and
Judgment in every cause; and when he has
a proper objection to the pleadings or pro-
ceedings, he should point out clearly and
specifically the grounds for his objection ;
and when he fails to make it with such
clearness and precision that the court can
understand 1t, he will ordinarily be held to
have waived his Observation-Disclosures
Riverside VS.. Bailey, 50 Kan. 429, 431, los
Pac. 796.
8. 1t is not proper for trial judge, by
his personal affidavit, to supplement the
record of what did or did not transpire in
the trial of a cause before him.
All the justices concurring. dawson, j.,
concurring speciality
A true copy.
Attest: D. A VALENTINE.
ISeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 20,O41.
Frank Tacha, Appellee,

NO
Frank Tacha, Appellee,
The Chicago, Rock Island & Pacific Rail
way Company, Appellant
Appeal from Decatur County.
REVERSED.
Syllabus. By the Court. Dawson, ].
l. Rule followed that special findings
of the jury, when inconsistent with the
general verdict, control the latter, and
Judgment should be entered accordingly.
(Cfv Code, 294 Laws 1913. ch. 239)
2. Special findings of fact examined and
held to show that the defendant sustained
the burden of proof to overcome the statu-
tory presumption of its negligence with re-
spect to a fire which started near its right
Of way.
8. Rule followed that questions of law
as applied to ascertained facts are subject
to review on appeal although no motion
for Judgment was filed in time in the dis
trict court
4. Rule followed that the filing of mo-
ton for new trial in the district court is
not necessary to secure a review of ques-
tons of law in the supreme court
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seall Clerk of Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 1892
Julia Hays ct al, AppelIees,
W. s. Patterson, Appellant
Appeal from Ottawa County
AFFIRMED.
Syllabus. BY the Court Mason. j.
1. The evidence examined and held to
tend to show a grantor's want of mental
capacity to make deed
? Upon appeal from a judgment set
setting aside deed, If a finding that it
was made while the grantor was without
mental capacity is sustained, questions of
error affecting only a finding that undue
influence was exercised upon him become
i'm material
g. finding that the consideration of a
deed was not adequate does not mean that
it was not legally sufficient
All the Justices concurrfng
true copy.
Attest: ID. A. VALENTINE
ISeal-1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15


of the order expressly to limit to his own
county the sheriffs action under it,, or
by the fact that the county and state
in which attached real estate is situated
are mentioned in the return only In the
report of the appraisers.
B. After the expiration of the term o.
court at which it was rendered, a 1udg-
ment which is not absolutely void can
not be set aside on motion unless atiacSea
in due time in accordance with some ex-
press statutory procedure. In the present
case it is held that the consideration OF
other questions presented by motion 10
set aside a Judgment, because of defee-
tive service is prevented by the incorpora-
ton of non-jurisdictional grounds therein
4. By virtue of the statute authorizing
the appointment of a receiver in an action
to foreclose a real estate mortgage, II
the property is insufficient to discharge
the debt, the mortgage, where that condi-
ton exists, has right to look to the
income of the property prior to its sale
and through a receiver appointed after
Judgment may enforce that right from the
time Of such appointment
All the Justices concurring.
A true copy. t-r.-
Attest: d. A VALENTINE.
ISeal.l Clerk Supreme Court,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
D. A. VALENTINE,
Clerk of Supreme Court.

No. 20,037
Phillip Wensler and Viola Wensler, APP
pellants,
Thomas Tilke, Appellee.
Appeal from Geary County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
1. A purchaser of real property, who
fails to make the payments provided for
in his contract, and who, being requested
by his vendor to either make the pay
ments or move off the property, fails to
make the payments, abandons his contract,
and moves off the property, can not re-
cover from his vendor any part of the pur-
chase money he has paid
. Such a purchaser of real property is
not entitled to the crops growing thereon
at the time he leaves the premises.
All the JUSTICES concurring.
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No 1881.
H. NJ. Knox, Appellee,

No. 19,9S1
H. NJ Knox, Appellee.
IT. G. Farguson and) e. NJ Farguson,
Appellant
Appeal from Finney County.
REVERSED.
Syllabus. By the Court. Marshall. J.
l. Where parties own land in common
and divide it by making deeds to each
other, and one of the parties has the deed
for his share made to his wife, that deed
is not governed by sections 1888 and 300
of the General Statutes of 1909, relating
to trusts -;
Q Lands conveyed in fraud of the rights
of creditors can not be subjected to the
payment of their claims until the claims
have been reduced to judgment, or, If the
debtor is nonresident of this state, until
the lands have been attached and held sub
ject to the payment of such Judgment as
may be rendered in the action.
All the Justices concurr1ng-
a true copy.
Attest: d. A VALENTINE,
TSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15


The State of Kansas, eX rel C. L. Randall,
as County Attorney, etc, Appellee,
r. s. Litchfield, ct al, as Receivers of the
Kansas Natural Gas Company, ct al.
(The Olathe Gas Company, Appellant-l
Appeal from johnson County
AFFIRMED.
Syllabus. By the Court Johnston, c. J.
Under the provisions of contract here
I'm set forth between the 0lathe Gas Com
pany which had a franchise from the city
for the sale and distribution of gas to
the Inhabitants of the city and n gas com
pany which had a trunk line through the
state and furnished gas to this and other
companies to be distributed and sold by
them TO their patrons, and also under
the agreed facts herein, it is held, that the
Olathe Gas Company Is acting as the agent
of the trunk line company in the dis
tribution and sale Of gas and that it is
therefore subject to the jurisdiction and
control of the public utilities commission
in the matter of fixing rates to be charged
for gas sold to consumers.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 20,014-
III. f. Ladd, Appellee,

No. 20,o14
II. F. Ladd, Appellee,
vs.
The Chicago, Rock Island & Pacific Rail
way Company, (The Kansas City Ter
minai Railway Company, and The Pull
man Company Appellant.
Appeal from Sedgwick County. First Di-
vision.
AFFIRMED.
Syllabus By the Court Marshall J.
L A release of a claim against a rail-
way company for damages for personal
injury, for a nominal consideration, pro-
cured by false representations as to the
conditions and effect of the release, signed
under the mistaken belief that the in
iuries were neither serious nor permanent.
that belief having been brought about by
the statements Of the railway company's
doctor, is not binding on the person sign
ing the release, where the injuries finally
prove to be serious and permanent
. In an action for personal injury. it
is not reversible error t. receive in evi-
dence the statement of the defendants
doctor, to whom the plaintiff had been di-
rected at the time of the injury ny the
defendants agents in the performance of
examining the plaintiff the doctor was
acting for the Defendant
,. A person whose capacity to labor has
been permanently diminished by physical
injury wrongfully inflicted on him by an
other, can recover damages therefor with
out proof as to his earning capacity be-
A. 1t was not reversible error to refuse
to submit TO the jury certain special ques-
lions.
5. Contentious that answers to certain
questions had no evidence to support them,
that answers to others should have been
made definite, and that the answers to
questions were evasive. have been exam
fned. The matters complained of are not
sufficient to warrant a reversal of the
All the Justices concnrring.
Porter, j., eoncurring specially.
Attest: u. A VALENTINE,
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 10. 1872.
Archibald Black, eft al, Appellees,
vs.
Ralph l., Funk, as Executor of the Last
viii and Testament of Matte j. Adams
deceased; let all and Ralph L. Funk.
individually. Appellant.
Appeal from Brown County
REVERSED.
Syllabus. By the Court. Marshall J.
A will, made by one having testamentary
capacity. disposing of valuable property,
ma king a number of beqHests to friends
and relatives and to other objects in which
the testatriX is interested, naming comph-
Gated conditions and making provision for
carrying the will into execution, not
be said to have been executed under uE-
due influence. where the testatriS directed
all the requests and prescribed all the
conditions, without the presence of amy ex-
cept the scrivener that wrote the viii and
without suggestion assistance from any
one at the time it was written
AT the Justices concurrfng.
A true copy.
Attest. d. A. VALENTINE,
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 10 79S.
Robert c. PostlethKaite, Administrator of
the Estate of John c. Postlethwaite, De-
ceased, Appellant,
Frank p Edison and Jessie l.. McCabe,
Appellees.
Appeal from Shawnee County.
Second Division.
REVERSED.
Syllabus BY the Court. West. j.
The principal clause in a will executed
by a husband and wife was as follows:
They and each of them do hereby de-
wise and bequeath to the other surviving,
all the estate of which the
one dying first shall be seized. or have an
estate, claim interest therein, and to
be owned and disposed of by the sur
viver as he she may desire, and that
upon the death of the survivor. all the
estate of the survivor not disposed of by
such survivor, is hereby devised and be
qneathed to their children in
equal parts
Held, that such devise as to any of the
property Of which the survivor died seized
vested in such survivor a life estate with
the added power of disposal, remainder
to the children.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 20O01
r Z. Beeson, Appellant,
William o. Trainer Appellee,
Appeal from Riley County
REVERSED.
Syllabus By the Court. Bureh. J.
1. Findings of fact examined ana held
to be consistent with each other and with
the general verdict Held further that the
rule that a real estate agent acting for
both vendor and purchaser must do so
with the full knowledge and consent of
both in order to recover a commission
from both was complied with.
= A real estate agent employed an
other to assist him in negotiating a trade,
agreeing in writing to divide a commission
of s., 600, to be paid by the principal, upon
nayment by the principal. The agent set
tied with the principal for sum less than
5000, which the principal paid Held, the
contract implicitly warranted that the
principal would pay the sum of 5000 as
commission and that the contract ma
tured when the principal settled with his
agent
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
fSeal.l Clerk supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 10000.
Joseph Epley, Appellant,

Joseph Epley, Appellant,
VS..
J. M Hall, ct al, Appellees.
Appeal from Harvey County.
AFFIRMED.
Syllabus. By the Court. Johnston. c. J.
l. Under the provisions of section T41S
of the General Statutes of 1909 it is COM
petent for a school district board to pro-
vide that other branches shall be taught
than those specifically enumerated in the
section, and in the discretion of the board
they may provide for instruction in music
by a qualified teacher.
2 The uniform course Of study pre-
pared by the state board of education for
the common schools of the state for the
year 1914 under the authority of chapter
272 of the Laws of 1913 authorizes the
teaching of music such schools
3. 1t is within the discretion of the
school district boards to determine whether
all subjects, including music, shall be
taught by a single teacher or to provide
that music shall be taught by another
teacher, provided such other possesses the
qualifications and authority required by
the school laws
All the Justices concurring.
A true copy
Attest: D. A. VALENTINE,
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15
No. 2O,474.
City of Pratt, Kansas. Relator,

NO. 2U,4lf.
City of Pratt Kansas Relator,
vs..
w. e. Davis. State, Auditor Respondent
Original M PP9 9T 1IE o Nv Mauu"lnuN
Syllabus. By the Court West; D;
Certain sewer bonds bearing interest at
five per cent are not irregularly or Illegal
Iy issued because the ordinance leEylng
special assessments for such Improvements
provides for interest on such assessments
at seven per cent The thirty day limita
ton for attacking such assessments (Chap:
124 Laws 1911, Sec. u, having expired
before such bonds were presented to the
respondent for registration, their registra-
ton is required.
All the Justices concurr1ng.
A true copy. -
Attest: d. A. YALbNIlNE,
TSealI Clerk SUPREME Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No 20,010.
The United States Tire Company OF New
York, A Corporation, Appellant,
Albert K. Kirk and Elmer c. Aspey, part
ners doing business as the Hutchinson
4 Motor Car Company, Appellees.
Appeal from Reno County
AFFIRMED
Syllabus. By the Court. Porter, j.
L On the facts stated in the opinion
it is held there was sufficient evidence
from which the jury might infer that
general sales agent had authority to make
an agreement to accept a return of the
goods and merchandise sold to a creditor
of the principal in payment of the pur-
chase price.
2. The facts stated in the opinion are
held sufficient to sustain finding OF
settlement between the plaintiff and the
defendants by the terms of which the
plaintiff agreed to accept a return of the
Specific goods sold and give credit to the
defendants account for the amount there
of and that the settlement was executed
by the constructive delivery of the goods
to the plaintiffs agent.
Johnston, C. J., Burch, J., Mason, j.,
West, J., Marshall, J., and Dawson, j.,
concurring.
Porter, Jr., dissenting.
A true copy.
Attest: d. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 1899
Nellie May Barnes and Elizabeth Amelia
Kyle, Appellants.
Martin B. Brownlee and Sarah A Brown
lee, Appellees-
Appeal from Douglas County.
AFFIRMED.
Syllabus. By the Court Johnston, c. J.
l. In proceeding to establish and
probate a will in another state the judg-
ment recited that jurisdiction had been
obtained by the service of citation and
notice upon the parties therein in the
manner and for the length of time re-
quired by law" Held, that the finding
and adjudication is conclusive evidence
that notice was duly given and juris-
diction acquired in the case as against a
collateral attack.
.. In the proceeding to establish and
probate the will which had been destroy
ed by fire that had caused the death of
the .testatrix. il was found that the will
so accidentally destroyed had been duly
executed and had never been revoked. The
conditions of the will were found and
declared: the names and residences of the
heirs were stated the reason why the
original will could not be produced was
recited: and the will proven was admit
ted to probate Held, that the adjudica-
ton so made stands evidence of the
will OF the testatrix and the disposition
that she made of her property, aud that
an authenticated copy of the judgment
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

Attest: d. A. VALENTINE,
[Seal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-03-15

No. 10 ,e66.
The St Marys Machine Company, Appellee,
The lola Mill Elevator Company, ct al,
and Caroline Frantz, Intervenor, Appel