davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
LEGAL


No. 81 92;;.
Fred r. Etehen, an individual doing busi-
ness in the name and style of The Etchen
Automobile Company, Appellant.
vs..
Dennis & Son Garage, co-partnership, and
Chas. Dennis and Ivan Dennis, Appellees.
Appeal from Labette County.
AFFIRMED.
Syllabus. BY the Court. Marshall. ].
An automobile was delivered to a pur-
chaser under n conditional sale contract
which was duly filed for record. The pur-
chaser wrecked the car while using it, and
then left it with mechanic for repairs.
The holder of the sale contract talked with
the mechanic about the repairs and inform
ed him of the sale contract and requested
him to get his money for the repairs before
he let the car go out of his possession. Held.
that the lien of the mechanic, under section
60S2 of the general statutes of 1915. was
superior to the lien of the holder of the
contract.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

No. 81. 924
Frank E. Furst ana Fred p. Thomas Part
ners, etc, Appellees,
Henry Buss and Elbrfdge Phillips, Appel
lants.
Appeal from Rocks County
MODIFIED AND AFFIRMED.
syllabus BY the Court. Dawson J.
l. Under section IS of the code of civil
procedure. guarantors who are-only Sec
ondarily liable on written obligation may
be Joined as defendants in an action
against the principal oblgor. and the rights
or the guarantors can be equitably and ade-
quately safeguarded in the judgment by
directing execution against the property of
the principal obligor and eXhaustfng that
source of satisfaction before issuing execu-
non against the property of those second
. Where guaranty is unconditional
the default of the party whose contracts.
fidelity or conduct is guaranteed natures
the liability of the guarantors and they
may be proceeded against without awaiting
a fruitless execution against the defaulting
principal.
3. Where principal obligor is admitted
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21.722.
H n. Vaught, Appellee,

O. IL
H. n. Vaught, Appellee,
Jonathan L. Pettyjohn & Company, APP
pellants
Appeal from Cherokee County.
AFFIRMED.
Syllabus By the Court Dawson. J.
1. The rule of the statute of frauds
which requires contracts for the convey
ance of land to be in writing in order to
concerns only the parties to such contracts
and their privies The statute cannot be
invoked by third parties not concerned
not inherently illegal; the parties thereto
may consummate them if they are willing
to do so, and third parties whose inter
meddling is the sole cause of frustrating
the consummation of such oral contracts
must respond in damages to the injured
party; and the measure of damages is the
loss of profits ON the transaction which
their wrongdoing frustrated when that loss.
is capable of definite ascertainment.
?. The fair and reasonable value of land
at the time it was the subject of bar
gain is proper and competent matter to
be proved in an action for loss of profits
the contamination of the bargain, and the
cost of the land would be of no evidential
value in ascertaining the damages.
3. Error cannot be predicted upon the
exclusion of evidence when it is not brought
on the record in support Of a motion for.
a new trial and not before the supreme
90 Kan. 561, 152 Pac 653
4. The rule that one who suffers from
the wrong of another must use reasonable
diligence to lessen or minimize his dam
ages is held to be inapplicable to the facts
of this case.
5. The plaintiff applied to defendants
for loan of money to be secured by
mortgage on his farm. He executed
note and mortgage which were delivered to
defendants The instruments were not in
satisfactory shape. and defendants pre-
pared new instruments and forwarded
them to plaintiff for his signature but
they retained the original instruments in
their possession. Meantime plaintiff pro-
cured a loan elsewhere. Then defendants
recorded the first instruments. apparent
~ to force plaintiff to pay them or their
agent a commission. Plaintiff made a
bargain to exchange his farm for Okla
homa property, but the cloud plaintiffs
title occasioned by defendants wrongful
recording of the ineffective mortgage and
| their refusal TO cancel and release it de-
feated the plaintiffs trade. HELD that
defendants liable to plaintiff for all
damages capable of definite ascertainment
and definite proof.
All the justices concurring.
A true copy.
Attest: D. A VALENTINE
tSea1.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21,929.
W. H. Frederick, Appellee,

No. 21 929.
W. H. Frederick, Appellee,
The City of Bonner Springs, Kansas, APP
pellant-
Appeal from Wyandotte County.
division No. /.
AFFIRMED.
Syllabus. By the Court. Mason, j.
/. The evidence held sufficient to sup
port finding that the engineer and other
officers of city did not act in good faith
in rejecting all of the paving done under
a contract.
p Where a contract is entered Into for
the paving of a street at an agreed price
per square yard, the contractor to replace
any portions that are found to be defec-
tive, and the municipal authorities charged
with passing on the sufficiency of the work
unreasonably refuse to point out the por-
tions that require replacement, the con-
tractor, being thereby prevented from per-
forming the contract in full, is entitled to
recover an amount proport1onate to the
quantity of pavement that was properly
laid and should have been approved.
5. Various assignments of error held not
to be well founded.
t. The facts regarding the presentation
of a claim to the city held not to have been
such as to preclude the plaintiff from re-
covering costs
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
LEGAL

No. 21,941.
The First National Bank of Elk City, Kan
sas. a corporation, Plaintiff,
vs.
The Springfield Fire e Marine Insurance
Company. corporation (AppellantD, and
NJ. NJ. Tynar and Frances e. Tynar
q (Appellees), Defendants.
Appeal from Montgomery County.
REVERSED AND REMANDED.
Syllabus. By the Court. Porter. J.
In an action on Il fire insurance policy.
the insurance company upon satisfaction
of a judgment against it in favor of a
mortgage under a loss payable clause of
the policy. is entitled to subrogation to the
claims of the mortgagee where it has a
valid defense as against the assured and
the policy provides for subrogatfon.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

VS..
Leslie c. Wilson, and Joseph L. wilson, as
Partners, etc. Appellants
Appeal from Linn County.
AFFIRMED.
Svllabus BY the Court Burch, -
Il A statement made to the buyer by
the seller of a stock of merchandise, that
the goods were salable, was statement OF
fact salable being the equivalent OF mer-
charitable, which means. in such trans
action fit for sale in usual course of trade,
at usual selling prices. 49,
.. A statement made to the buyer by the
seller of stock of merchandise, that the
goods would invoice at from S9,oOo 10
mere expression of opinion respecting
value. - A.,
= The buyer might rightfully rely on the
statements referred to; although the STOCK
Of merchandise way freely and fully eX-
posed to his inspection and he did make
partial inspection.
j. Statements Of material facts of the
Kind referred to. which tend to induce a
sale of goods, and which are relied on Dy
the buyer are. for all practical legal con-
SEQUENCES, warranties.
All the justices concurring-
A true copy
Attest: u. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21,915.

No. 81 ,915.
Matt Unrine, Appellee,
VS..
The Salina Northern Railroad Company, ct
al. Appellants.
Appeal from Saline County.
AFFIRMED.
Syllabus. By the Court. Burch, j.
Receivers of a railroad company are
presumed to be operating under the work
mems compensation act until they elect not
to come within its provisions, although
before their appointment the corporation
had made such an election 2
All the justices concurring.
A true copy.
Attest: d. A VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

No. p, 6iO.
Viola Swalp, Appellant,
vs..
Charles W. Swalp, Appellee.
Appeal from Saline County.
AFFIRMED.
Syllabus BY the Court. Marshall, ].
1t does not appear that the trial court
abused its discretion in determining the
amount of alimony awarded to the plain
tiff.
All the justices concurring.
A true copy.
Attest: ID. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21,92T.
w. E. Traylor, Appellee,

Martha ]. Rogers, ct al, Appellants
Appeal from Ness County.
AFFIRMED.
SYLLABUS by the Court. Johnston, c: j.
l. In an action of ejectment in Whlch
as absolute conveyances for title and right
of possession, and the defense was that the
deeds were in fact mortgages gwen as
security for Indebtedness. as to which an
accounting was asked. Judgment was rem
dered finding the deeds to be mortgages
Titled to the possession of the mortgaged
land. There was 70 adjudication as to the
debtedness nor the right for foreclosure.
not operate as a bar to the maintenance
Of another action between the same par
ties for the recovery of the mortgage debt,
and the foreclosure of the mortgages
All the justices concarring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
M o1SqI

No. g, S91.
William Love. as Guardian for Robert
Love, an insane person, Appellee,
VS..
The Diplomat Mining Company, a Corpora
ton, Appellant
Appeal from Cherokee County
AFFIRMED.
Syllabus. By the Court. West. ).
l. The findings of the jury were sup
ported by sufficient evidence.
.. No error appears in the giving or re-
fusing of instructions.
All the justices concurrtng.
A true copy. .
Attest: D. A NALEN IN II,
(Seal.) CLERK supreme Gour|
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
LEGAL


to pay debt secured by mortgage on
real estate, the same us unsecured debts
are payable, if there are sufficient funds
for that PURPOSE in his hands.
,. If the executor fails to follow the
statutory rule and pay such debt out of the
personality, the devisee of the real estate
may maintain an action to require him to
exonerate the real estate devised by dis
charging the mortgage debt out of the per-
4. Where a grantee in conveyance of
land assumes and agrees to pay a debt
secured by mortgage upon land. and 1t
land, the mortgage may accept him a
debtor or he may rely alone upon the
mortgage. to meet the obligation.
5. A sale of the land so incumbered by
the grantee to another, in which the other
agrees to assume and pay the mortgage
debt, makes the latter personally liable for
such debt, if his grantor was himself liable
for it.
herein, it is Held that the first grantee was
personally liable for the mortage debt, and
the second grantee who assumed its pay
ment. was likewise liable.
Z. The acceptance of payments Of interest
and of principal upon the mortgage debt
by the owner of the debt, is sufficient to
constitute an acceptance of the payor as
s. The fact that the owner did not begin
a foreclosure proceeding on the mortgage
nor take other steps to enforce the pay
ment of the mortgage debt by the one who
assumed to pay It does not make the ob
0. Under the facts of the case, it is held
that the contract for the sale of the land
which was homestead, is not invalid be-
cause of the lack of consent of the wife of
the grantor, she having signed deed in
contamination of the contract and both
being parts of a single transaction.
10. The plaintiff was not barred of his
relief for exoneration of the land because
of failure of the holder of a mortgage
debt to present it to the probate court as
a demand against the estate of the testator
within the period of two years, the debt not
being barred by any of the limitations pre-
scribed by the code.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

No. 81 952
c. E. Sutton, Appellee,
vs.
Charles L. Schaff, Receiver of the Missouri
Kansas & Texas Railway Company, APP
pellant.
Appeal from Lyon County
AFFIRMED.
Syllabus. By the Court. Marshall, J.
Under the facts stated in the opinion,
1t is held that a partnership did not exist
between the plaintiff and the Southwestern
Hay and Grain Company.
All the justices concurring.
A true copy.
Attest D. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 2a.274.
The City of Parsons, Appellee,

The Parsons Water Supply and Power
Company. corporation, Appellant.
Appeal from Labette County.
Reversed and demanded for Further
Proceedings.
Syllabus BY the Court: Johnston. G. j.
/. With few exceptions the appointment
of receiver is an ancillary remedy which
can only be obtained in an action in which
other substantial equitable relief is sought
and is not made when that is the ultimate
object of the action.
Plaintiffs petition herein examined
and 1t is held that it can not be regarded
as a demand for specific performance of a
contract or FOR any relief other than the
appointment of a receiver
j A city which complains that public
utility has failed to furnish efficient and
sufficient service and to make improve
ments and provide the facilities necessary
to the performance of the duties and con-
tract obligations of the utility to the city
and It's Inhabitants. should invoke the re-
lief provided by the public utilities act
before resorting to the courts for relief
Burch. J.. Mason. j.. Porter. J.. West.
ring.
Johnston, c. J., dissenting in part
true copy.
Attest: D. Az VALENTINE.
tSeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

No. 21,949.
Earl Oswald, Appellee,
The ST. Joseph & Grand Island Railway
: Company, Appellant.
Appeal from Washington County.
Appeal Dismissed.
Syllabus. By the Court. West, J.
A land owner on appeal from an award
of condemnation commissioners recovered
the exact amount of the award. The trial
court refused to retaX the costs, $12500,
to the plaintiff, and the railway company
seeks to appeal. Held. that the appeal will
not lie. Civil Code, $685.
All the justices concurring. -
A true copy.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15

No. 21.759.
Orville Bishop, as Guardian, etc, Appellant,
VS..
w. NJ. Roberts, and Patsy Roberts, Appel
lees.
Appeal from Brown County.
AFFIRMED.
Syllabus By the Court. Burch, J.
Equity may not ignore the positive in
hibition of bylaw of a beneficiary society
making any change of beneficiary ineffec-
tive without surrender of the old certifi-
cate and the issuing OF a new one, and
may not regard new certificate as hav-
ing been issued. when one of several
reasonable requirements of the bylaws re-
lating to change of beneficiary has been
complied with, and the society has not been
placed in a position in which 1t might
have issued a new certificate, but for the
members death.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court. 81
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21SI0.
Oscar Schmidt. Inc, Appellee,

No. 81 $40
Oscar Schmidt. Inc, Appellee,
G. r. Benedict. Junior. Appellant.
Appeal from Leavenworth County.
AFFIRMED.
Syllabus By the Court. Dawson. j:
Instructions touching the burden of proof
in an action n promissory note where
the defense was fraud in it's procurement
and in its negotiation through breach of
faith examined, and held that the instruc-
tons given were in substantial accordance
with the pertinent provisions of the Negotf-
able instruments Act.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21.s99.
Susan Reynolds, Appellant,

The National Bank of Commerce. Appellee
Appeal from Sedgwick County.
division No. q
REVERSED
Syllabus By the Court. Mason. J.
i. A finding that a wife had authorized
her husband to have the proceeds of a
draft placed to his credit held to have been
qualified by a further finGing that such
authority had been conferred by the de-
livery TO him of the draft. which was made
payable to the collecting bank. and there
fore to hare amounted to a mere conclusion
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 81 $50.
Trego County State Bank, Appellee,

Charles HiIlman, Appellee, august Hill
man, ct al, Appellants.)
Appeal from Trego County.
AFFIRMED
Syllabus. BY the Court Porter 7
1. Where the sale of stock of merchan-
disc and fixtures is void, because of failure
to comply with the provisions of the bulk
sales law (Gen. Stat. 1915. IS 1891, 1885,
the purchasers. although they act in entire
good faith. and pay full value are not en-
titled to subrOgation to claims of general
creditors as against debt due to
creditor who has secured a valid attach
ment lien upon the stock and fixtures sub
ScQuent to the sale.
=. Subrogation is an equitable right and
in such case, equity follows the law and
cannot ignore the rights procured by the
diIigent creditor.
All the justices concurring.
A true copy.
Attest: D. A VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21.3SS.
Irwin G.. Smith. Apnellant.

VS..
Henry E. kibbe. Executor, etc. ct al
Appellees-
Appeal from Cowley County.
REVERSED AND REHANDED WITH
DIRECTIONS To ENTER JUDGMENT
FOR THE PLAINTIFF.
Syllabus. By the Court. Johnston, c. ].
l. In the absence of PROVISION to the
contrary in will, the debts of the testator
are payable primarily out of the personal
estate as the statute prescribes. and If it
is insufficient. resort may be had to the
realty.
?. Where no other purpose is expressed
in the will, it is the duty of the executor
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. ,946.
B. F. Hall, Appellant,

No. 81 ,946.
b. F. Hall, Appellant,
~ i. d. Briggs, Appellee.
Appeal from Sherman County.
DISMISSED.
Syllabus. By the Court. Mason, ].
An appeal by the plaintiff in a forcible
entry and detainer case will not be con
sidered on its merits where his right of
possession will expire before a reversal
would in the usual course of procedure be-
come effective, and the time for which the
defendant claimed right of possession has
already expired
All the justices concurring.
4 true copy.
Attest: d. A. VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No 1885.
Emery Fl. Lewis, ct al, Appenees,

Emery Fl. Lewis, ct al, Appellees,
VS..
Matte NJ. Lewis, Appellant.
Appeal from Jewell County. -
AFFIRMED.
Syllabus. By the Court. Marshall, ].
1. mutual and reciprocal joint will
made by husband and his wife, in which
they give life estate in their property
to the survivor and the remainder to their
children, is not opposed to public policy;
. A mutual and reciprocal joint will
made by a husband ana his wife, cannot,
after the death of the wife and the accept
ance of benefits under the will by the hus-
band, be revoked by his subsequent mar
riage. ..---1
3 The rule announced in PostIethwaite
v. Edison. 1O2 Kan. 104. III Pae. 100, Id.
1O2 Kan. 619. III Pac. 773. cannot be ex
tended so to render nugatory the re-
mainder created by mutual and reciprocal
joint will made by husband and his
wife. -
Ali the justices concurring.
A true copy.
Attest: ID. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21.9Oo.
The State of Kansas, Appellant,

The State of Kansas, Appellant
VS..
Mike Williford. o. A. Cortright and o. l..
Cook. Appellees.
Appeal from Trego County.
AFFIRMED.
Syllabus. By the Court Porter, j.
In an action upon a forfeited recogniz-
ance where 1t is shown that after the de-
fault of the principal, the bail surrendered
him to the sheriff, that he thereupon plead
ed guilty, was sentenced by the court.
served his term in the county Jail. and has
been discharged. and the court is salts
fled that his absence did not occuErwith the
knowledge. consent OF connivance of the
and disehargfng the bail from liability on
the condition Of their payment Of all the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. 21.945.
f. A. Dinsmoor, Appellant,

No. 81 945.
F. A. Dinsmoor, Appellant
VS..
F. T. Thorn. Appellee.
Appeal from Sumner County.
AFFIRMED.
syllabus. BY the Court West. J.
l. A law student about to apply for ad-
mission to practice. may lawfully buy a
law business and library, and contract with
me seller that he will not practice law
IN the town where the library is located,
and his failure to be admitted upon the
first examination will not void the contract.
animation.
The finding that the contract involved
herein had been violated was sustained by
sufficient evidence
All the justices concurring
A true copy
Attest: d A VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
LEGAL
By GOLDBERG


of law; and further held that the general
verdict did not imply such a finding be-
cause under the instructions 1t was au-
thoriZed upon other grounds.
>. Where a person draws upon DEBTOR
the draft being accompanied by the evil
dence of the debt and being payable to
bank the fact that the drawer places Ench
instrument in the hands of her husband to
be delivered to the bank does not protect
it in using the proceeds for the husbands
benefit, according to his direction. where
he had i'm fact no authority to direct such
disposition 80
3. In the situation stated the possession
of the draft by the husband prior to its
delivery to the bank was no evidence OF
his having a right TO the proceeds, nor did
it make competent his statements concern
ing it. The competent evidence held noe
sufficient to show prima facie that the
wife actually authorized her husband ate
direct the proceeds of the draft to be used
for his benefit. that she had In
vested him with such apparent authority
in that regard as to protect the bank In
relying thereon. s't5
All the justices c0ncurriDg. &c.,,
true copy. --i.. =
Attest: u. A VALENTINE. y
(Seal) Clerk Supreme Court. j
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
No. p, 592.
W. R. Brush, Appellee,

No. u, 592
W. r. Brush, Appellee,
-
Lew Boyer, Appellant.
Appeal from Sedgwick County.
division No. O.
AFFIRMED.
Syllabus. BY the Court Porter, J.
A suit to establish and enforce a trust
In lands and to compel a conveyance, or in
case defendant has placed it out of his
power to convey, for relief in the nature of
damages Is an equitable action and de
PENDANT Is not entitled, as a matter of
right, to demand a jury.
All justices concurring
A true copy.
Attest: d. VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-02-15
LEGAL

costs and expenses for apprehending the
principal, and the payment of all costs In
both proceedings, is sustained as being In
accordance with justice and fairness.
All the justices concurring.
A true copy.
Attest: u. A. VALENTINE
(Seal) Clerk Supreme Court.