davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 2O.615.
No. 20.61j.
The Kemper Grain Company, Appellant

The Kemper Grain Company, Appellant,
The Farmers Grain and Elevator Com
pany of Cunningham, Kansas, Appellee.
Appeal from kingman County.
MODIFIED.
Syllabus. BY the Court. West, J.
l. contract for the purchase of wheat
contained the provision that to make
proffered. The seller advised the buyer
of its readiness and Willingness to ship
two cars of the grain covered by the
contract and was notified not to ship. that
the buyer would turn down the drafts
and refuse to accept. Held, that under
rendered unnecessary, the settled doctrine
being that a tender or demand otherwise
indispensable is no longer required when
its futility is shown.
.. Although the seller upon such notifi-
cation announced a RECESSION of the con-
buyer another of the wheat which was
accepted and paid for. Held, that this
did not couuteract the declaration of the
buyer that it would not receive the wheat
previously offered so as to entitle it to
recover damages for its non shipment.
8. An award of damages by the jury
unsupported by the findings held not to
be prejudicial error for the reason that
the amount allowed was conceded by the
party complaining.
4. The jury found that the defendant
suffered damage in the sum of S16I .6S,
loss on wheat refused by the plaintiff but
in answer to an express question how
much damage they allowed therefor. they
answered Nothing" Held. that the de-
PENDANTS motion for judgment for S167.6
should have been sustained.
All the Justices concurring.
A true copy.
Attest: n. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17


r. C. Crandon, and W, W. Crandon, Part
ners, ETC.. Appellees,
VS..
The Home Insurance Company, a corpora
ton, Appellant.
Appeal from Neosho County
REVERSED.
Syllabus. BY the Court. Dawson, J.
l. Where fire insurance policy cover
ing business building and a stock of
merchandise contains clause reciting
that the assured agrees to make an an
nual inventory and to keep a set of books
showing a complete record of the bust
ness transacted. including purchases,
sales and shipments, and that such in
ventory and books shall be securely lock-
ed in fire proof safe at night and at all
times when the store is not open for bust
ness, and that a failure to produce
such inventory and books for the inspec-
ton of the company, the policy shall be-
come null and void, and such failure shall
constitute perpetual bar to any recovery
| thereon, failure to keep such inventory
| and books in fire proof safe at night
whereby they are destroyed by fire will
ordinarily bar a recovery on the insurance
| policy.
| ?. Where fire loss occurs under the
| circumstances suggested in syllabus 1, the
| insurance company does not waive the
| fire proof safe" clause by inviting the
! assured to meet defendants adiuster
| in town ten miles away for the purpose
of settlement, nor by offering to pay 50oe
of the loss Notwithstanding the breach of
the ''fifa-proof safe" clause of the policy,
| nor By retaining the entire premium which
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 20,621.
B. P. Basnett, Appellee,


B. p. Basnett, Appellee,
vs.
The Cherryvale Gas, Light & Power Com
pany, Appellant
Appeal from Montgomery County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
1. A public utility supplying natural
gas to the Inhabitants of city is pre-
sumed to know the location of it's stop
boxes, and where one stop-box in front
of a building is connected with old, de-
fective and unused pipes, and another
stop-box is connected with the pipes in
use, the public utility is presumed to
know which of the stop-boxes connects
with the pipes that are in use.
2. The jury's finding of negligence,
contained in answers to special questions,
should be given liberal Interpretation to
support the allegations OF negligence in
the petition. When this rule is applied,
the findings of negligence in this case
support the allegations of the petition.
B. A judgment will not be reversed for
error in the admission of evidence, where
it does not affirmatively appear that the
evidence preiudicially affected the sub
stantial rights of the party complaining.
(Civ. Code. 5 5S1.)
4. The instructions complained of have
been examined and are held to have cor
rectly stated the law.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.


No. 20,652.
School District No. of Stanton County,
Kansas, Appellant,
George w. Julian. ct al. Members of the
Board of County Commissioners of Stan
ton County, Kansas, Appe1lees.
Appeal from Stanton County
DISMISSED.
Syllabus. By the Court. Dawson. J.
When lapse of time renders it impossible
to grant the relief sought by an appeal
from a Judgment on an application for. a
writ of mandamus, the appeal will be dis
missed.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Sea1.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 20.31S
The German American State Bank, APP
pellee,

peIIee,
w T Watson. Appellant
Appeal from Anderson County.
AFFIRMED.
Syllabus By the Court Mason, J.
l. Where a bank desires to make an
additional loan to a customer but can not
do so because it has already lent himi Is
much as the law permits, and for that
reason induces another person TO give his
note for the amount. promising to hold
him harmless in the matter, in legal con-
temptation the borrower. who receives the
money. and not the bank, which pays it
out is the party for whose accommodate
ton the note is signed.
. The maker of a note can not defend
an action thereon by showing an oral
agreement made at the time of its execu-
ton that he should not be held liable, for
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No q, 051.
The State of Kansas, Appellant.


The Atchison, Topeka & Santa Fe Railway
Company, Appellee.
Appeal from Shawnee County.
division No. II
AFFIRMED.
Syllabus By the Court Mason, J.
In 1912 a Kansas statute was in force
imposing a tax upon legacies and success
sions, which contained a provision that
if domestic corporation should record a
transfer of its stock by foreign executor
before the payment of the tax thereby
required it should be liable therefor. In
that year non resident died whose will
In 1913 the statute was repealed with no
qualification except that found in the gen
eral saving clause which preserves ANY
right which accrued" and ANY duty i'm
posed by virtue thereof. The tax has
never been paid. In 1916 the stock was
fer to the 1egatees was recorded. The
state brought an action against the cor
poration for the amount of the tax. Held l.:
"a The obligation of the executor and
legatees to pay the tax, and the right of
the state to demand it of them, survived
the repeal of the statute.
I 90 The action can not be maintained
against the corporation, because the right
of the state to look to the corporation to
refuse Cat such time in the future as it's
action should be invoked) to record the
transfer of the stock while the tax remain
ed unpaid was not at the time of the
repeal an accrued right within the mean
ton of the corporation in that regard had
not then become a duty imposed"
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 20,633.
w H. Cox, Appellee,


Fred F. Chase and E. A Chase. and Fred
F. Chase and E. A. Chase, Partners as
Chase Brothers, Appellants.
Appeal from Chase County.
AFFIRMED.
Syllabus. BY the Court. West, J.
l. A cattle man who contracts with a
ranchman to pasture his cattle in Ger
tain field or pasture for a season. does
not thereby become the lessee and tenant
2 When one takes in and pastures cat
tie on his land for reward he is not there
by a landlord but an agister.
afterwards withdrawn with the instruc-
tons thereon can not in the absence of
an affirmative showing to that effect be
said to have worked material prejudice.
4. The exclusion of the evidence of one
of the defendants that in the ordinary
course of their business they would not
have shipped until thirty days after they
did if there had been plenty of water
was error. but he was permitted to
state the market conditions thirty days
later the error was rendered harmless.
;. In a contest over the pasturing of
cattle involving an alleged failure of
water and shrinkage and damage, evil
taken and when shipped was competent.
6. Evidence of the condition of cattle
of the same herd and brand kept in a
pasture sixty or seventy miles away where
the water did not fail was offered and re-
tected. Held. that as this might have
/ nj similarity of the two pastures its
exclusion was not error.
! Z. 1t was not material error to refuse
= a certain instruction which was substan-
| TALLY covered by one given.
s. Rule followed that to be availed of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 2O,659.
Frank 3. McClun, Appellant,

No. 20,659
Frank 3. McClun, Appellant,
W. T. Lutz, Appellee.
Appeal from Mitchell County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
The defendant subscribed two thousand
dollars to the capital stock of corpora
ton and paid five hundred dollars thereon.
The corporation became insolvent and was
declared bankrupt in November. 1908. In
January, 1911. the trustee in bankruptcy
was ordered to bring suit to compel pay
ment of fifty per cent. of the unpaid sub
scriptions to the capital stock, if the same
were not paid before April /. 1911. The
right to recover from the defendant the
fifty per cent of his unpaid subscription
was sold and assigned to the plaintiff by
the trustee in bankruptcy In January,
1915, suit was brought to recover that
fifty per cent. of the unpaid subscription.
Held. that the action was barred by the
statute of limitations at the time it was
commenced.
All the Justices concurring.
A true copy
Attest D. A. VALENTINE.
ISealI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
PERSONAL
CALLS

Their cause, prevention and home treat
ment. Write for FREE BOOK of interest
to any sufferer from stomach. abdominal
gal troubles. Address Gall Stone Rem
cry Co, Dept. D-53 219 S. Dearborn St.
Chicago. Ill.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
d. A. VALENTINE,
Clerk Supreme Court
No. 20,663.
Hugh Blair, Appellee,

d.
Hugh Blair, Appellee,
and Robert Junkins, Partners, etc. APP
pellants.)
Appeal from Douglas County.
REVERSED.
Syllabus By the Court. Dawson, J.
1. 1t is no defense to an action against
the payee and indorsers of a promissory
payees was a mistake and that the name
of the plaintiff was intended instead, and,
Endorsed the note to plaintiff on his oral
ASSURANCE to them that they would not be
personally liable on their Endorsement;
= Rule followed that action or de-
tons of fraud and consequent damage,
cations to be literally Interpreted
J. The defendants furnished materials
Quarry. The plaintiff and McQuGry con
splred to induce defendants TO forego their
right to a lien They represented to de
and financially responsible, and that plain
fiff would give them the cash for Nc,
right to lien. Defendants relying there
on, Endorsed McQuary's note to plaintiff
rmu unes t tn asn tnereter he
responsibility were false In an action
by plaintiff on the note, the defendant in
dorSers may plead a set-off showing the
fraud which plaintiff and McQuary prac-
ticed on them and the consequent damage
sustained by the sacrifice of their right to
a lien.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE
LSeal.l Clerk Supreme Court.
No. 20653.
Charles S. Ergenbright, Appellee,
VS..
The Saint Louis. Iron Mountain and South
ern Railway Company, Appellant
Appeal from Montgomery County.
REVERSED AND REMANDED.
Syllabus BY the Court Johnston. c. J.
L. Upon the testimony it is held that
the defendant was engaged in business in
Kansas and that a valid service of sum
mons was made upon its agent.
2. A railroad company is not primarily
in throwing mail sacks from a moving
knowingly permits such agent to continue
a custom practice of delivering mail
sacks at a station in such a way to
endanger those who may be lawfully at
the place of delivery, without doing what
it can to prevent the continuance of the
negligent practice.
8. The evidence in the case does not
support the findings of the jr-y that the
defendant was negligent in knowingly
permitting the United States postal agents
to pursue a dangerous practice in dis
charging the mail sacks from the mail car
at a station. and in failing to report a
reckless discharge of the mail to the
proper authorities.
| All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
| ISeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
II A VALENTINE.
Clerk Supreme. Court


No. 2GGI9.
T. r. Wallingford, c. A Wallingford, and
s T.. Wallingford, Partners, doing bust.
ness under the firm name and style OF
WaIingford BROTHERS, Appellants.
The Buslltun Grain Il Supply Company,
Appellee
Appeal from Rice County.
REVERSED.
Syllabus BY the Court. Porter, j.
l. Where a contract is made by tele-
phone for the purchase and shipment OF
grain followed by letter of confirmation
from the purchaser to the seller setting
forth the terms of the contract, the writ
makes known to the purchaser any obJec-
tion. he may have to the terms as stated
therein. (Strong Y. Ringle, 96 Kan ol3,lo2
Pac G31.)
. In an action to recover damages for
defendants failure to ship wheat accord
PENDANT had rescinded because plaintiffs
refused to pay a draft for the first car
shipped. The court properly instructed
that if anything was said or done by de-
PENDANT to induce plaintiffs to believe IL
had waived the failure to pay the draIt,
1t would be estopped afterwards to claim
a breach by reason of non payment; put
in another instruction the court charged
in substance that defendant would be
relieved from the consequences of such
on IT'S part. it preached the contract on
some other ground Held, upon the fact
stated in the opinion. that the giving of
the latter instruction was error, and that
it misled the jury.
B. Upon the special findings it is held
that plaintiff is entitled to Judgment.
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, 1917-02-17
D. A. VALENTINE.
Clerk Supreme Court.
No. 20,469.
W. F. Sheahan, Appellee,

No. o0469
w. T. Sheahan, Appellee,
The United States Fidelity and Guaranty
Co, Appellant.
Appeal from Shawnee County.
Division No 2.
AFFIRMED.
Original Opinion Modified.
REHEARING DENIED.
dawson, j.: Certain matters presented
in a petition for rehearing in this cause,
to which a reply has been filed by coun-
considered. and while they do not show
any error in the judgment, it may be that
the opinion covered more ground than
necessary and to that extent the original
date.l
Syllabus. By the Court. Dawson. J.
1. In an action to recover a con-
tractors surety bond, in which the petit
ton plainly alleged that a stated balance
was due for materials furnished to the
error as to the amount already paid on the
account whereby a mere bubble might be
raised that no balance whatever was due.
does not render the petition subject to
demurrer.
.. An obvious clerical error in peti-
ton may be disregarded, or it may be
considered as amended without formality.
8. While a trial court never loses juriS-
diction to correct or amend its record to
make it speak the truth and to chronicle
when an appeal is taken from its decision
it has no Jurisdiction to permit any amend
ment to the pleadings or to alter the real
situation of the parties as it existed at
the time its judgment was rendered
All the Justices concurring.-
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
LEGAL
SUPREME COURT SYLLABI
No. 20,760.
A. b. + pc, Appellee,

Lizzie J. Bashor, Appellant, ct al.
ppeal from Morris County.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
LEGAL.
[ First published in Topeka State Journal,
Saturday, February 10. 1871
NOTICE.

First published in Topeka State Journal,
Saturday, February 10. 1871
NOTICE
Topeka. Kansas, Feb. 10. 1917.
Notice is hereby given that the State
School Book Commission invites PROPOSE
lions for furnishing for term of five
years to the schools of Kansas, as provided
by law, the following high school text
books: A Physical Geography and text
book in Algebra covering three terms of
high school Algebra. The School Book
furnishing manuscripts or plates for books
to be published by the state, or PROPOSE
tons from book publishers to furnish these
books for the schools of the state All
propositions should be in the hands Of
w. r. Smith, chairman of the School Book
Commission, not later than BOO a. IN.
March 13, 1917. The Commission reserves
w. ID. ROSS,
State Supt. of Public Instruction.
First published In the Topeka State
journal. February z. 191T.I
RESOLVED. That the Mayor and Board
of Commissioners of the City of Topeka.
Shawnee County. Kansas. deem 1t neces-
sary for the best interests of said city that
Laurel Avenue from the west line of Wood
lawn Avenue to the east line of Elmwood
Avenue. in said city, be graded. curbed
with combined curb and gutter and paved
thirty 800 feet wide with asphaltic con-
crete on five 90 inch concrete base.
w. g. TANDY. Commissioner.
1, Eta NJ. Covell, City Clerk of the City
hereby certify that the above and foregoir g
resolution now on file in nv effiee
ETA NJ. COVELL. City Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17

L. NJ PEN-ELL. funeral director and
embaimer First class service 5Os-5l0
Quincy St Telephone 1872
C. HAWLEY & CO., undertaken em-
balming. lis E. IT sth Ave. Phone PSI.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
MOVING

FENIMORE MOVING AND STORAGE
Your furniture wrapped for storage
FREE. expert packers. Phone 4341.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
FLORISTS
POOL AND BILLIARD TABLES

FOR SALE-Billiar4 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. speciality. Send for cata
logue. THE BRUNSWICK BALKE-COI
City. Mo.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 20,75S.
The State of Kansas. Appellee,

Laura Wisdom. Appellant.
Appeal from Shawnee County
division No. -
AFFIRMED
Syllabus BY the Court. Burch. J.
l. No rule of law requires an Information
for robbery which is framed according to
the facts developed at the preliminary eX.
animation to correspond to the complaint
which served as the basis for the warrant
on which the accused WIS arrested.
. 4 plea in abatement. founded on want
of a preliminary examination c. mes teo
late Wien deferred until after a verdict
of guilty has been returned.
3 The evidence examined and held TO De
sufficient to sustain the verdict.
A. No error is committed in overrul1ng a
motion in arrest of Judgment which is not
based on either of the grounds specified in
section 21T of the criminal code.
All the Justices concuFring.
A true copy. -
Attest II NALENIlNE
ISeaIl Clerk Supreme. Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
No. 21,059.
The State of Kansas, Appellee,

The United States Trust Company of New
York. a corporation, Appellant
Appeal from Shawnee County.
REVERSED
Syllabus. By the Court. Dawson, J.
Where the will of a testator who died
tax law claws 1915, CHI $50 created life
estate in certain stocks of a Kansas cor
poration in favor of his widow, and be-
queathed the remainder to such benefi-
Charles as might be named in a power of
appointment created by his will and con-
ferred upon his widow, the remainder
thus taken is part of the testators estate,
and is specifically exempted from the pay
ment of the inheritance tax by section %
of the act, Notwithstanding the power of
appointment was exercised after the act
took effect.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
No. 2oss6.
Louisa o. Steinman, Appellee,
John Hall. A corporation, Appellant.
Appeal from Allen County.
Syllabus BY the Court. West J.
1. The evidence touching the authority
of one holding himself out an agent is
examined and found sufficient to sustain
. The plaintiff declared on a written
lease for one year with the privilege. of
extending to five. an abandonment after
paying two months rent, and failure to
return the keys The prayer was for the
rent for the remainder of the year. The
proof showed the receipt of two months
rent from a subsequent tenant. The YER
dict for less than the difference be-
tween a years rent and the four months
collected for. The answer denied indebt-
e ness and denied the relation of landlord
and tenant There was neither allegation
nor evidence of the plaintiffs failure to
use reasonable diligence to mitigate dam
ages. Held. not error to refuse instruc-
tions on such failure.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
LEGAL.

ment expressly reserving the right to sue
the other partner and the surety on the
contractors bond. Held.
(a) that the release of the judgment
against one of those Jointly and severally
liable was in effect a covenant not to sue,
and did not prevent the city from subse-
Fletcher, 10 Kan. 139, 9S Pac. 7S4)
OBJ that partial satisfaction of a judg
ment against one joint debtor and the re-
lease of the same will operate only as a
payment pro tanto of the Indebtedness of
the other debtors.
the city against the other joint debtors
the defendants rendered to plaintiff and
offered to pay into court the judgment
against the other joint debtor which had
been released. Held, that defendants could
not better their position by offering to
pay the former judgment.
B. In the first action the city, in addi-
ton to the Judgment which it released,
obtained a Judgment applying upon the
Indebtedness of plaintiff a claim which
the city owed him personally and upon
which he had brought the action. Held,
that the defendants in the present ac-
ton were given credit for the amount of
this counter claim, it was proper to render
Judgment against them for reasonable
CURED by the city in establishing its
right to the credit.
f. The obligation of the surety company
in this case is held to be an unconditional
promise to answer for the defaults of the
contractors, and therefore the city is not
estopped to maintain an action upon the
bond by reason of the fact that before the
fraud was discovered it paid the con-
tractors in full, nor by reason of the fact
that the surety company released certain
funds it held to indemnify itself against
loss under the belief that the city had ac-
cepted the sewer.
All the Justices concurring
A true cor.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
UPHOLSTERING

], F. PETRfcK { sons. Gp6ofsterlinS and
manufacturers of parlor furniture. 1908
Kansas avenue. Phone s42
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
TYPEWRITERS

ALL MAKES for sale or rent Rest m,
ehancal department in the countYv
CRANE & CO,
Topeka Kan ~ Years in Rusines
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17

D. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17

First published in the Topeka State
journal. February z. 1911
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-02-17
MONEY
ELECTRICAL WIRING

LET ME figure your electric wiring and
fixtures. Chas. H Klussman. PAS Blue,
after 6 o'clock.