davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 2O,7S5.


Maud Williams, etc, Appellee,
The A. T. & S. F. Railway Company,
Appellant
Appeal from Gray County.
REVERSED.
Syllabus. BY the Court Porter J.
Where a recovery is sought by rea-
son of several negligent acts of the de-
PENDANT, and the jury in answer to a spe-
cial question finds that the negligence
upon which they base their verdict is a
certain single act of the defendant, the
finding in effect acquits the defendant of
every charge of negligence alleged in the
petition or mentioned in the evidence ex-
cept the one specifically designated in
the finding" (ROberts VS.. Railway Co.,
IS Kan. 705, 161 Pac. $50, Syl)
. In an action to recover for the death
of person killed at railway crossing
where the negligence relied upon is the
failure of the defendant to sound the
whistle eighty rods from tlR crossing.
the rule is applied as in A. II. & S. F.
Rid Co. VS.. Walz, 40 Kan. 433. 10 Pac.
7S7 and in Railway Co. VS.. Judah. 60 Kan.
474 20 Pac. $40, that, deceased knew
the train was approaching, she needed
no notice of the fact. and the omission to
bility against the railway company when
such omission neglect of duty was
not the prOximate cause of the injury.
All the Justices concurring.
A true copy
Attest: d. A VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
d. A. VALENTINE,
Clerk Supreme Court.
No 207S0.
The Logan Moore Lumber Company,
Appellant,

No. 2O,7SO.
The Logan-M Moore Lumber Company,
Appellant,
NJ G. Bowersock. ct al, Appellees.
Appeal from Douglas County.
MODIFIED.
Syllabus. BY the Court. Mason, J.
1. A recital in writing purporting to
release mechanics lien. that the
owner has paid for the construction of
the house involved, is held to refer to
payments made by the person in posses
sion under a contract emitting him to
deed upon the completion of the purchase
price, and not to the holder of the legal
title.
,. A waiver of mechanics lien eX
pressed to be made in favor of any mort
fit of one who had lent money to the pur-
chaser of the property under an arrange
ment that the original owner should hold
the title as security both for the balance
due on the purchase price. and the
amount of such loan. And held. that the
pleadings and evidence justified find
made in this case.
5. Such waiver is held to preclude the
signer from asserting a lien except in sub
ordination to that of the mortgagee
4: Where the owner of property on
struction of a house thereon, but before
its completion abandons the work and
disappears. the mortgagee who takes pos
session and completes the building accord
ing to the original plans. is held to have
a lien for the amount so expended superior
to a mechanics lien for material sold to
and used by the owner. where the value of
the property at the time work was aban-
doned. including the improvements was
less than the amount of the mortgage.
s. The lien of the mortgage can not
be increased. as against such lien holder.
by the cost of improvements made by him.
which were not contemplated in the orig
inal plan.
g. The rule announced in McCria VS..
Lumber Co; Kan. App. 80, 81 Pac. 966.
a preexisting mortgage. so far as relates
to the structure erected. apart from the
land, is doubted. and held in any event
not to be applicable to the present case.
A I'll the Justices concu-ring.
true copy
Attest n. A. VALENTINE.
GSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

NO. 70, lO4.
Thomas Il. Hammond and Robert c. Ham
mond, Appellants,

Thomas +. Hammond and Robert c. Ham
mond, Appellants,
r. H. Martin. Appellee, ct al.
Appeal from Doniphan County
AFFIRMED.
Syllabus, By the Court Mason, j.
Where a will devises life interest to
the testators wife, with a remainder in
equal shares to their five children, a pro-
vision that If any OF the children should
die before the Inheritance passed to them,
the issue. If any, of such deceased child
should take his share. even if construed
to relate to the situation arising from
death of a child after that Of the testator
and before that of the mother, does not pre-
vent the spouse of a deceased child, who
died after the father and before the moth
err, from inheriting the share of such child.
All the Justices cOncurring.
A true copy.
Attest: j.. A. VALENTINE.
(SealD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
D. A. VALENTINE.
Clerk Supreme Court.
No. 20.752.

NO. 2U.l02-
Martin Carroll, doing business as Martin
Carroll Company, Appellee,
VS..
J. D. Bowersock, doing business as The
Lawrence Paper Manufacturing Com
pany, Appellant.
Appeal from Douglas County.
REVERSED AND REMANDED.
Syllabus. BY the Court. Burch, ].
l. In an action by a contractor to re-
cover for part performance of contract
to construct a reinforced concrete floor
in "a warehouse which burned before the
floor was completed. recovery can not be
predicated on the fact that the owner de-
clined. on request of the contractor, to re-
build the warehouse, or on the fact that
the owner collected insurance on the build
ing. purchased before the contract was
made.
> In such case, recovery is limited
to the amount of contract work done
which at the time the structure was de-
stroyed had become far identified with
it that the material furnished and labor
performed would have Injured to the
owners benefit as contemplated by the
contract if destruction had not occurred
Mason, J., Porter, J., West, j., and Mar
shall, J., concurring.
Johnston, C. J., and Dawson, J., dis
senting from ruling refusing a recovery
for upright rods.
A true copy. Attest:
d. A. VALENTINE.
(Seal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,522.
l.. II. Whiteman,

VS..
Allie CornweI ct al. (Nicholas WAGNER
Appellant; w S. Hodges, Appellee).
Appeal from Seward County.
AFFIRMED.
Syllabus. BY the Court. Dawson. J.
l. The rights of purchaser of real
estate who. in good faith and for valu-
able consideration. and in reliance on
judgment quieting the title of his grantor.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
d. A. VALENTINE,
Clerk Supreme Court.
No. 20,554.

No. 20.554.
F. NJ. Abel, Appellee and Appellant,
The Atchison. Topeka & Santa Fe Rail
way Company. Appellant and Appellee.
Appeal from Clark County.
Affirmed in part and Reversed in Part.
Syllabus. By the Court. Johnston, c. J.
Where parties stipulate in a contract
for an interstate shipment of live stock
that before there can be a recovery against
the carrier for loss or injury to the stock
occurring during transportation prev
ious to the loading thereof the shipper
his agent in charge of the cattle must
give written notice of his claim to an
officer of the company or the station
agent before the stock are removed from
the place of destination or before they are
slaughtered or intermingled with other
stock, the carrier may not under the fed
eral law. waive the requirement of written
notice of such claim by the shipper
dispense with notice of claim from one
shipper and require it from another. and
without such written notice there can be
no recovery although the carrier may have
had actual and complete notice of the
claim of the shipper.
Burch, J., Mason. J., Porter, J., and
Dawson. J., concurring
Johnston. c. J., West, j., and Marshall,
J., dissenting.
A true copy.
Attest: II. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 21,162.
Eugene Schenck, Sr., Appellant,

NO. H,lb2-
Eugene Schenck, ST., Appellant,
vs.
School District No. "a of Hamilton County,
ct al, Appellees.
Appeal from Hamilton County.
AFFIRMED.
Syllabus. By the Court. Johnston. c. ].
A judgment rendered by a court having
jurisdiction of the parties and subject mat
ter is not open to collateral attack on ac-
count of illegality or fraud which was in
issue and open for consideration in the
trial in which the Judgment was rendered
although such Judgment may have been
taken by default or consent on the day fol-
lowing the bringing of the original action
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
D. A. VALENTINE.
Clerk Supreme Court


no. ~, dO3.
The Oklahoma State Bank, Appellant,
O.. T. Hfcklin, Marshal, Appellee.
Appeal from Sedgwick County
division No. IL
AFFIRMED.
Syllabus. BY the Court Johnston C. r
1. The plaintiff acquired the title TO
car of wheat by the payment of a draft
with the bill of lading attached and short
ly afterwards transferred the same to an
other bank. Payment of the draft being
refused by the purchaser of the grain the
draft and bill of lading were reassigned to
the plaintiff. Before that time the wheat
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
u. A. VALENTINE,
Clerk Supreme Court.
No. 20.607.
Luis Garcia and Leogadia Garcia,
Appellees,

No. 206O7.
Luis Garcia and Leogadia Garcia,
Appellees,
VS..
The Atchison, Topeka and Santa Fe Rail-
way Co, Appellant.
Appeal from Reno County.
REVERSED.
Syllabus. BY the Court. Dawson. ].
1. Rule followed that a railway com
pany's duty to trespasser is merely to
refrain from wilfully injuring him.
.. Where a boy climbs into a switch
engine and his presence is known to the
fireman but not to the engineer and the
switch engine is struck by a freight train
and the boy is caught and killed in the
wreck, though the engineer and fireman
saved their lives by jumping from the en-
CINE before the collision. the fact that the
fireman who had no authority to do so
permitted the boy to remain on the en-
CINE does not establish wanton wilful
negligence on the part of the railway
company as to render it liable for dam
ages in action brought by the boys
parents.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,772.
G. b. Meadow, Appellee,
The Kansas City-Western Railway Com
pany, Appellant.
Appeal from Wyandotte County

The Kansas City Western Railway Com
pany, Appellant.
Appeal from Wyandotte County.
Division No. 1.
AFFIRMED.
Syllabus. BY the Court. Porter, ].
l. The usual form of averment, that the
contract sued upon was made by de
PENDANTS duly authorized agent, or words
of like import. is sufficient to sustain
evidence of any appropriate manner of
must generally be, pleaded before evidence
> The former decision of this case.
holding that "a railroad company has
employees to pay them half wages during
disability from service accidents CMc-
Pac. 1113) is applied as the law of the
case.
B. In this case it is held there was suf-
ficient evidence to Justify the giving of
an instruction substantially following the
law as declared in Townsend vs.. Railway
Co, IS Kan 260, 12s Pac. 3s9, Syl. >, that
IAN act is within the apparent scope of
an agents authority when reasonably
prudent person, having knowledge of the
Justified in supposing that he is author
lied to perform it, from the character of
the duties which are known to be entrust-
4. 1t is a general rule that an agent
cannot ratify his unauthorized act so as
to bind the principal. If the defendants
superintendent had no authority to bind
the defendant by the contract in ques-
ton. his statements made long afterward
would not amount to a ratification; but
evidence of his statements having been
admitted solely for the purpose of prov
ing demand, it is held there no
prejudicial error.
3, Error cannot be predicated upon the
rejection of testimony which is not pro-
duced at the hearing of the motion for
new trial. Civil Code No. 307)
g. The evidence being substantially the
same as in the former hearing of the case,
it is held sufficient ito take to the jury
the. question whether a railway company
had contracted with an employee to pay
him half wages during any disability from
an injury received in the course of his
services CMcAdow VS.. Railway Co., 90
Z. The provision in the federal en-
ployers' liability act (section of the
Amendment of April ,, 1910, that in any
action brought against any such common
carrier under or by virtue of any of the
provisions of this act, such common carrier
tributed paid to any insurance. relief
benefit, or indemnity that may have been
paid to the injured employee or the per-
son entitled thereto on account of the in
jury or death for which said action was
brought is construed and held that where
railway company has been sued under the
federal statute by an employee to recover
for injuries, it may not set off against
the judgment the amount it owes such
employee for insurance under a contract
each month a portion of his usual wages
it agrees to pay him half wages during
certain periods that he is disabled by in
juries in service; such contract contain
ing no provision for releasing the company
from its liability to such employee for
injuries caused by its negligence
All the Justices concurring.
A true copy.
Attest: n. A VALENTINE
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

No. 2O,21O.
The City of Emporia, Kansas, Plaintiff,
vs.
The Atchison, Topeka & Santa Fe Railway
Company, Defendant.
Original Proceeding in Mandamus.
Motion for Judgment on the Pleadings
OVERRULED.
Syllabus. By the Court. Dawson. J.
The facts alleged in an answer and re-
turn to an alternative writ of mandamus
examined and held to require that plain
tiff's motion for judgment on the plead
ings be overruled.
All the Justices concurring.
A true copy. Attest:
d. A. VALENTINE
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

NO. Sl,O5o.
Cora t. Cooper, Appellee.

Cora T. Cooper, Appellee.
John c. Cooper Appellant.
Appeal from Shawnee County.
division No. u
REVERSED AND REMANDED.
Syllabus. By the Court. Johnston. c. J.
An allowance of separate maintenance to
a wife who is living apart from her hus-
band is held to be excessive and unwar-
ranted under an antenuptial agreement ad-
judged to be valid and binding upon the
parties.
All the Justices concurring.
A true copy.
Attest: u. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. POTTS.


Edgar L. Terry, Appellant,
VS..
George f. Miller, ct al, Appellees.
Appeal from Cowley County.
AFFIRMED,
Syllabus. By the Court. Marshall, j
l. In an action against nonresident
minors, where the only service obtained is
by publication, no Judgment can be rem
dered by any court in this state that will
affect the title of the minors to land
situated in another state.
,. Relief will not be granted against
mistake in the construction of a will
where that relief must be given at the
expense of minors beneficiaries under the
will, who had nothing to do with the mis-
take and whose interests can not be ade-
quately protected by any judgment that
the courts of this state can render.
All the Justices concurring.
true copy.
Attest: ID. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

The State of Kansas, ex REL
S. NJ. Brewster. Attorney General, Plaintiff
VS.
O. H Bentley. Mayor ct al. Being The
Board of Commissioners of the City of
Wichita, ct al. Defendants
Original Proceeding in Mandamus
WRIT ALLOWED.
Syllabus By the Court Porter. J
1. The act of the legislature entitled :
AN Act relating to the government of all
cities in Kansas. and to establish an op-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,S31.
J. A. W heller, Appellee,


J. A. Wheeler, Appellee,
VS..
W. o. Waymire, Appellant.
Appeal from Greenwood County.
AFFIRMED.
Syllabus. BY the Court Porter, J..
An agent for the exchange of real es-
tate has earned his commission where, aft
er finding a purchaser able and willing to
trade he brings the parties together and
they agree to an exchange on terms sat
isfactory to his principal.
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, 1917-04-14
No. 2O,663.
Hugh Blair, Appellee,


Hugh Blair, Appellee,
o. H. McQuary, Jr., ct al, q. w. Junkins
Appellants.)
Appeal from Douglas County.
Order Modifying Section 3 of the Syllabus
Dawson. J.
Pursuant to the petition for a rehearing
in the above entitled cause, section ) of
the syllabus is modified to read as fol-
lows:
IS. In an answer to an action on a
promissory note, the defendant indorsers
pleaded that they had furnished materials
used in the property of their co-defend-
ant who was the maker of the note; that
the plaintiff holder of the note and the
defendant maker thereof conspired to in
duce indoFsers to forego their right to
lien; that the plaintiff and their code
PENDANT represented to the indorsers that
the maker of the note was prosperous and
financially responsible, and that plaintiff
would give them the cash for the note in
lieu of their claim and right to lien !;
that relying thereon they waived their
right to a lien and Endorsed the note to
plaintiff and he paid them the cash there
for: that the representations to the
financial responsibility of the maker were
false. HELD, that as against demurrer
the answer sufficiently pleaded a set-off
based upon the alleged fraud practiced
and defendant maker of the note, and
sufficiently pleaded the consequent dam
age sustained by the indorsers by the
sacrifice of their right to a lien
All the Justices concurring.
A true copy. Attest =
D. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
d. A. VALENTINE,
Clerk Supreme Court.
No. 20,563
Meta Colvin, Appellee,

No. &c, 563.
Meta Colvin, Appellee,
Ed Wilson, Appellant.
Appeal from Bourbon County.
AFFIRMED.
Syllabus. By the Court. Porter J.
1. Where in the trial of an action to re-
cover damages for alleged assaults by de-
PENDANT upon plaintiff. the defendant in
troduced the testimony of several wit
neSses to contradict statements made by
the plaintiff on cross examination concern
ing matters collateral to the issues. the
court may in the exercise of it's sound dis
erection. permit the plaintiff in rebuttal to
prove her good reputation for truth and
veracity in the community where she re-
sides On the facts stated in the opinion
there was abuse of judicial discretion
in the admission of such rebuttal testi-
mony.
> In a civil action the character of a
party is not admissible as evidence to dis
prove the act with which he is charged.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
POOL AND BILLIARD TABLES

FOR SALE-Billard tables, new carrom
and pocket. with complete outfit. $50 90
second hand tables at reduced prices bowl
ing alley supplies: easy payments Cigar
store fixtures. i speciality. Send for cata-
logue. THE BRUNSWICK BALKE COL
LENDER Co., 1329-1331 Main St. Kansas
City, Mo.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
est: d. A. VALENTINE.
all Clerk Supreme Court

No. 20512.
The Farmers National Bank of Lincoln.
Kansas, Il corporation, Appellee,
John X. Francis and Emma Shook, Appel
lants.
Appeal from Lincoln County.
AFFIRMED.
Syllabus. BY the Court. West. J.
1. An instruction that one who has sign
ed note under duress valves such duress
by subsequent payment
unless it is shown that at the time
of such payment made
he was still deprived of his freedom of
mind or will by reason of such duress,'
held proper in view of all the other in
structions given.
. A charge that the law requires proof
of duress to be clear, convincing and de-
cisive' held not to have misled the jury
by the use of the latter word.
3. The verdict and findings, having been
approved by the trial court, will not be
disturbed.
Johnston. c. J., Burch. J., Mason,'J-, Por-
ter, J.. Marshall, J.. and Dawson, J., con-
curing. West, J., dissenting.
A true copy. -
Attestt u. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
II. a ALI ~ L ~ T..
Clerk Supreme Court.
No. 20S26.
The Kansas Flour Mills Company, Appel
liant,

No. 90, S26
The Kansas Flour Mills Company. Appel
liant,
f. L. Dirks Appellee.
Appeal from Rush County.
REVERSED AND REMANDED.
Syllabus. BY the Court. Johnston, C. J.
l. In a contract for the sale of wheat
the parties stipulated that it was to be de-
livered on or before December so. 1914.
and that in case the seller failed to make
delivery on that day the buyer had the
option to extend the time of delivery, can
eel the contract. or buy wheat on the ac-
count of the seller. Held, that the seller
had all of December 80 in (which to deliver
the wheat and it not delivered
within that time the buyer had a right on
December n to extend the time of delivery
until January 10. 1915.
,. The wheat not being delivered within
the time originally fixed within the
extended time and the market price of
wheat having advanced. the buyer en-
titled to recover as damages the difference
between the contract price and the market
price at the place of delivery on January
10. 1915. the time to which the delivery
was extended.
All the Justices concurring.
A true copy.
Attest: u. A. VALENTINE.
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
u. A. VALENTINE.
Clerk Supreme Court.
No. oO.So4-

No. 2O.S24.
James Fennimore and Myrtle Fennimore,
as father and mother and next of kin of
Rue Fennimore, deceased, Appellees,
VS..
The Pittsburg- Scammon Coal Company,
Appellant.
Appeal from Crawford County.
AFFIRMED
Syllabus. By the Court. Burch, J.
In an action under the workmen's com
pensation act by the father and mother of
deceased workman for compensation for
his death, a finding of partial dependency
is sustained by evidence that the parents
did in fact depend in part on the sons
earnings, that they suffered injury by
being deprived of what they had relied on ::
and this is true. although the father owns
a home for which he paid 81 $50 owns land
from which he derives an income of S400
$500 year, owns shares of stock in
corporation which he has paid 5000.
and is employed at a salary of $125
month
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
LEGAL.
LEGAL.

n
STATE QUARTERLY
Report of State Printer showing m onnP pndeS s foT labor printing and binding
material ned % @ SURF % HI a ouaRfERs March M ISL
$5Oo7si
r%s 2s no.
~ Coo
80 - 49,
. i, Sam, c.,,,. r,, Co. 5. Louis. sP.5 ssi: @
rms aizs ~
8 House K. C,
II, Paper X Nc, IL 1926 rms
rms ? 3. c: Prn: 2 -
90 rms. c Princess 10 $500
H h rms rms "a S t0l d folio Is 4s4so
% rms nn9 aSss5 1t blue 10 '14-O
NO.
Feb sladeH & 2exg65oo
rm t 9ss2s r &Her Comb TIC 2sS'
doz coeh Glazed title
= k Paper Co. Topeka 5 Psao White % $50 @
40 s !sSf rms no HEg she'll eac sif SSss
Paper HS HOUSE. ( G. Nc n S1sss a li M
ms s4s5s II ~ ~
20 rm Rue 2S S!an5e Faawvan lOe $50
@x25,ss5 DIX ,o ooo
,Mch. X Paper House. X C, 1000
Mch.s Tarentum Paper i 800
Net amount paid Tor stock '''' SMITH. fsr"'
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20.559.
Frank Sylvester, Appellant,

Frank Sylvester Appellant,
vs.
William Riebolt. ct al. Appellees
Appeal from Sherman County.
AFFIRMED.
Syllabus. BY the Court Burch. J
Rule applied that the district court has
absolute control of it's judgments during
the term at which they were rendered.
All the Justices concurring.
A true copy.
Attest: y. A. VALENTINE
ISeaLI Clerk Supreme Court