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want of ordinary care contributing to the injury. Seventh. The railroad company was guilty of negligence and want of ordinary care in furnishing defective tools and compelling their use.

This case was tried to the jury with great skill and ability on both sides, and every possible question that could be raised on the state of facts is presented in this record. We want to say, in a general way, that we are inpressed with the unusual fairness of the trial for a case of this character. The general instructions of the court, and the general verdict of the jury, as well as their answers to the special interrogatories submitted by both sides, are all characterized by an absence of passion and prejudice, and a liberal regard for the rights of all, so much to be desired in judicial investigation. Wesiall not disturb a verdict arrived at by such means, unless there are such grave and material errors as to absolutely compel reversal.

The counsel for the plaintiff in error complain of the admission of the testimony of Burkett; and they say that he was permitted to give his opinion that the spike-maul in use on the section at the time of the accident to Sadler was unsafe. They also complain that the same testimony was given by the witness Weber, over their objection. Both of these witnesses belonged to the section gang. They both testified that they had worked with the mauls. They both described the condition of the maul used by Sadler at the time of the injury, describing its defects, and stating that it was unsafe. We can see no objection to this. If it was expert evidence, the witnesses had qualitied themselves for the expression of opinion. They stated the actual condition of the maul to the jury, and on their statement the ordinary common knowledge of the jury would authorize the conclusion that the maul was unsafe. The testimony of the witness Burkett, that he told the foreman that the tools were unsafe, was admissible for the purpose of proving the knowledge of the company of the defective condition of the maul, if for no other purpose. This was one of the material facts that the plaintiff had to establish, and it could be brought to the knowledge of the company in that manner, and we see no objection to it. There is no doubt on the evidence but that the company knew that the maul was defective, and, through the foreman, had promised to furnish the gang new tools. This promise was made in the presence and hearing of Sadler; and we think he had a right to rely on it under the particular circumstances of the case. He would certainly be bound by any general orders or directions given by the foreman to the gang of men with whom he was associated in work on the section, (Railway Co. v. Fray, 31 Kan. 739, 3 Pac. Rep. 550;) and he ought to have the benefit of any promise made by the foreman to the men with whom he was associated, (2 Thomp. Neg. 1017; Perry v. Ricketts, 55 Ill. 234; Parody v. Railway Co., 15 Fed. Rep. 205.) A sufficient time bad elapsed since the attention of the foreman had been called to the defective condition of the mauls in use on the section for the company to furnish new and perfect tools when this injury occurred; and no attempt is made to explain the delay, or to show that any steps had been taken to replace the mauls. After the defects of the tools have been called to the attention of the company, and a reasonable time has expired within which the company ought to have furnished new or perfect tools, their continued use is gross negligence. Perry v. Ricketts, 55 Ill. 234.

It is highly probable that some of the instructions are subject to criticism; but taking them all together, they so fairly present the questions raised on both sides, that it is almost impossible that the jury could be misled by them to the prejudice of the plaintiff in error. Taking all the circumstances and facts of the case into consideration, the inexperience of the defendant in error in this particular line of work; his notice to the foreman in that respect; the fact that he was required to work with a defective tool; that he had no sufficient opportunity to examine it; that his attempt to do so was interrupted by the foreman by a command to “hurry up,” coupled with an assurance “that

everything was all right,” the neglect of the company for more than a reasonable length of time to furnish new tools, after repeated warnings that those in use were defective; the freedom of the jury from passion or prejudice; the evident desire of the court to fully and fairly instruct on all material questions; the verdict of the jury, and its approval by the trial court on the motion for a new trial,--we are disposed to think that substantial justice has been done, and no error committed that ought, in the interests of justice and the due administration of the law, to compel a new trial.

It is recommended that the judgment be affirmed.
BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 758)


(Supreme Court of Kansas. December 10, 1887.) 1. MANDAMUS-WAIVER OF ALTERNATIVE WRIT-STIPULATIONS.

Where money is in the hands of a treasurer of a county that is due to the plaintilf, and the treasurer refuses to pay the same, and the plaintiff files his application for a writ of mandamus to compel the treasurer to refund the money, and the treasurer waives the issuance of an alternative writ, and signs and files a written stipulation that the facts stated in the application are true and that he will consent to the issuance of a peremptory writ if the court finds the law of the case in favor of the plaintiff, and subsequenily, upon the hearing, the court does find that the treasurer owes the plaintiff the money demanded, and that the law of the case is with the plaintiff, held, after such waiver and stipulation, the defendant cannot insist that the plaintiff must seek some other remedy than mandamus for the recovery of the money demanded. IIeld, further, that upon the waiver and stipulation of the treasurer, and the findings of the trial court, judgment should be rendered in favor of the plaintiff

for the issuance of the peremptory writ. 2. TAXATION-REDEMPTION—TENDER.

Where the owner of land sold for taxes is entitled to a redemiption certificate upon paying the amount for which the land was sold, and all subsequent taxes, charges, and interest; and, upon such tender being made, the treasurer refuses to execute to the owner otlering to redeem the land a redemption certificate as provided by law; and thereafter the owner obtains a peremptory writ of mundamus compelling the treasurer to execute to him a certiticate of redemption, upon the payment of all taxes, charges, and interest, to the date of the tender; but subsequently the owner withdraws his tender, and refuses to pay the taxes, charges, and interest mentioned in the judgment, and then files a notion for the peremptory writ to issue in accordance with the judgment rendered : held, upon a further hearing, the court properly refused to grant the writ, unless the taxes, charges, and interest, to the date of the

issuance of the redemption certificate, were paid. (Syllabus by the Court.)

Error to district court, Saline county; S. O. HINDS, Judge.

Le Grand Byington, for plaintiff in error. Moore d Quimby, for defendant in error.

HORTON, C. J. Byington filed his application for a writ of mandamus to compel Hamilton, county treasurer of Saline county, to refund certain money paid by Byington for a void 'tax-sale certificate; the return of which he claims under section 145, c. 107, Comp. Laws 1885; and also to compel Hamilton, as county treasurer, to issue to him certificates of redemption of certain lands and lots which had been sold for delinquent taxes. Hamilton appeared, waived the issuance of an alternative writ, and entered into a written stipulation, admitting tiiat the application correctly stated the facts; and further agreeing that if the court should be of the opinion, on the hearing of the application, that "the law of the case was with Byington," a peremptory writ should issue, unless he complied with the terms of the judgment within 30 days after its rendition. If an alternative writ had issued, and Hamilton had moved to quash the part referring to the refunding of money, upon the ground that mandamus would not lie, as Byington had otherwise a plain and adequate

remedy at law, the motion would have been undoubtedly sustained; and the ruling would have been in accordance with State v. McCrillus, 4 Kan. 250, and State v. Bridgman, 8 Kan. 458. We think, however, under the stipulation, that the district court erred in refusing to order restitution of the money paid upon the void certificate of sale. Hamilton not only did not object to the writ of mandamus being the proper remedy, but expressly agreed that, if the court found “the law of the case was with Byington,” the writ should issue. The court found that Hamilton owed Byington the money mentioned in the application, and that the “law of the case was with Byington.” It seems to us, therefore, upon the application and stipulation, that the objection to the writ of mandamus being the proper remedy was waived; therefore, as it appears that Byington is entitled to the money demanded from Hamilton, he should not be defeated in this action, and remitted to another action against Hamilton to recover his money.

Upon the hearing concerning the issuance of certificates of redemption, the court found that Byington was entitled to have them issued and delivered to him, and allowed a peremptory writ therefor. It appears, however, from the record, that when Hamilton notified Byington of his willingness to issue the redemption certificates, no money was tendered or paid him, and on January 8, 1885, both parties being present, the court made the further order that no peremptory writ issue until Byington should tender or pay the amount of taxes, costs, and interest, to the date of the issuance of the certificates.

Counsel complain that the journal entry of January 8, 1885, is not properly a part of the record. No motion has been made challenging or amending the record, and the proceedings in error are brought to us upon a case made. Embraced in the case made is this journal entry. Upon the face of the record, this entry is as much a part of it as the application for the writ of mandamus, or any of the other proceedings of the trial court. 'We must, therefore, consider this journal entry. The original judgment of the court, rendered on December 14, 1883, ordered the certificates of redemption to be issued on payment of the principal, with interest at 25 per cent., computed to the date of the tender; but as this tender was withdrawn, and when Hamilton was willing to issue the certificates of redemption no money was tendered or paid for the redemption of the lands and lots, the court properly refused, upon motion, to order the writ issued until all the taxes, costs, and interest were tendered or paid.

The judgment of the district court will therefore be modified to this extent: A peremptory writ of mandamus will issue requiring Hamilton to refund the money paid by Byington for the void tax-sale certificate, unless, within 30 days after the entry of the judgment in the district court upon the mandate of this court, he fully complies with the terms thereof. The judgment of the district court requiring Byington to tender or pay the taxes, costs, and interest to the date of the issuance of the relemption certificates, before the peremptory writ will be granted therefor, will be affirmed.

(All the justices concurring.)

(37 Kan. 750)

SERVICE and others v. WATSON.

(Supreme Court of Kansas. December 10, 1887.) 1. APPEAL-REVIEW—WEIGHT AND SUFFICIENCY OF EVIDENCE.

There being some evidence tending to prove every material fact necessary to be found to sustain the general verdict of the jury, and it being approved by the trial

court, it will not be disturbed by this court. 2. HUSBAND AND WIFE-SETTLEMENTS BETWEEN-AGREEMENTS FOR INTEREST.

On a settlement of a long-standing indebtedness between husband and wife, the husband being in failing circumstances, there being no time for payment or rate

of interest specified when the indebtedness of the husband to the wife was contracted, they can make a valid agreement that the debt bear interest at the rate of

7 per cent. per annum. (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Franklin county; A. W. BENSON, Judge.

W. Littlefield, for plaintiff in error. H. P. Welch, for defendant in error.

SIMPSON, C. This was an action of replevin brought by the defendant in error to recover possession of certain goods seized by J. C. Service, constable, on an execution issued to him by a justice of the peace in the city of Ottawa, on a judgment in favor of Beckham, Mercer & Co. against J. C. Watson, husband of the defendant in error. Defendant in error claims the goods in question under a mortgage given to her by her husband, November 25, 1885, on his entire stock of goods, to secure a debt of $708, evidenced by his note to her of same date. The case was tried to a jury at the Januaryé term, 1886, of the Franklin county district court, and there was a verdict and judgment for the defendant in error that she was the owner and entitled to the possession of the property; that it was wrongfully detained by the plaintiffs in error; that its value was $261, and damages for the wrongful detention was $3.04. A motion for a new trial was overruled, and exceptions taken. No special findings. The court was not requested to instruct in writing, and there is nothing in the record but the pleadings, evidence, verdict, and judgment, and motion for a new trial.

Two causes of reversal are insisted upon here. The first is that there is not suficient evidence to authorize the jury to find that the defendant in error was the owner of the goods. The general verdict of the jury, and the judgment of the court rendered thereon, necessarily include a finding that the transaction detailed by Mrs. Watson and her father was a gift by him to her of goods to the extent of $400 in May, 1874; of the sale of her interest to Watson; of his agreement to pay; of his subsequent purchase of the interest of Moore; of the execution of the note and chattel mortgage by Watson to the defendant in error; of its good faith; and of every other material fact to sustain the verdict. We are not called upon to weigh the testimony, and the credibility of the witnesses. The jury has done so, and their verdict is approved by the trial judge. There is evidence tending to support all the necessary elements of the verdict rendered, and we cannot disturb it. This has been so often declared by the court in this class of cases that citation of authority is not necessary.

The second proposition of counsel for plaintiff in error is that, at the time Mrs. Watson sold the $400 worth of goods, given her by her father, to her husband, there was no precise time fixed for payment, and no specified rate of interest; and as from the time she took possession of the goods under her chattel mortgage, up until they were seized by the constable, she had sold goods to the amount of $412, her chattel mortgage was paid and satisfied, and she was not entitled to interest, and therefore the recovery was too large, and the judgment should be reversed. The facts are that she sold to her husband on the twenty-eighth day of May, 1874, and she says it was an understanding that she was to have 7 per cent. interest; but, be that as it may, they had a settlement on the twenty-eighth of November, 1885, and he then executed this note for $708, and agreed that this was the amount then due'her, and they had the right to make such an agreement,--he to pay, and she to receive, this sum, for the use of the $400 of goods for all this time. This settlement on the twenty-fifth of November, 1885, is an acknowledgment on the part of Watson that at the time he purchased the goods, and agreed to pay for them, he was to pay interest on the money until such time as he could pay her back. If the verdict of the jury is accepted as to the good faith of the origi

nal transaction, there can be no other construction or solution of the acts and agreements of the Watsons. There is no cause made out to authorize reversal, and we are compelled to recommend an affirmance of the judgment.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 98)

BRYAN and others v. MCNAUGHTON.



Where a land agent is employed by his principal to negotiate for the purchase of certain land, and, in violation of his duties as agent, purchases the property for himself and bis partner with his own money, and takes a title thereto in the name of his partner; and the transaction, on account of the circumstances thereof, is inpressed, from reasons of equity and justice, with a constructive trust in favor of the plaintiff. Held, that the purchase money furnished by the agent will be considered as a loan only, and, while the agent and his partner may hold the title to the property purchased as security for the money advanced, neither of these parties can hold the land adversely to the principal, merely because the principal has not advanced the purchase money, when, at the time of the employnient of the agent, the amount of the purchase money could not be known, and when neither the agent nor his partner ever presented to the principal any statement of the purchase money or expenses, or ever made any demand therefor. See Rose v. Hayden, 35

Kan. 106, 10 Pac. Rep. 554. (Sylabus by the Court.)

Error to district court, Miami county; J. P. HINDMAN, Judge.

Thos. M. Carroll and H. H. Browne, for plaintiff in error. Brayman de Sheldon, for defendant in error.

Horton, C. J. This was an action in the nature of ejectment brought by McNaughton against Mrs. Bryan and children, to recover 220 acres of land situated in Miami county. The facts in the case, as claimed by Mrs. Bryan and children, are as follows: On the thirty-first day of August, 1865, Edward Coughlin purchased of Joseph Johnson, a member of the Shawnee tribe of Indians of Kansas, the lands in controversy, paid him the purchase price thereof, and Joseph Johnson made a warranty deed therefor. Coughlin took possession of the lands, made improvements thereon, occupied the 160-acre tract as his homestead, and continued in the possession of the land up to the time of his death, in March, 1887. Subsequently, his widow, now Margaret Bryan, and his children, continued for some years to occupy the land, and were in possession of the same at the beginning of this action. Some time in the year 1881, Mrs. Bryan discovered that there was a defect in the title of herself and children to this land; that the deed of conveyance to Joseph Johnson, and also a subsequent deed from Thomas Johnson and Nancy Johnson, as sole heirs of Joseph Johnson, for said lands, had never been approved by the secretary of the interior, and that the Indian title to the land had never been extinguished. Soon after this discovery, she went to Paoia, and called on the real-estate firm of Oakman & Clover, for assistance in perfecting her title. This firm was principally engaged in fixing up and trafficking in Indian titles. She gave her deeds to Clover, who promised to examine her title, and ascertain what could be done. In the spring of 1882, Clover was several weeks in Washington city, and, among other business, was trying to have the Coughlin deeds approved by the secretary of the interior. While in Washington the secretary of the interior returned the deeds to Clover at Paola, with the reasons the deeds could not receive the approval of his office. This letter was received by Oakman in the absence of Clover, and opened by bim. On the same day that Oakinan received the letter and deeds from the depart. ment Mrs. Bryan called at his office to find out when Clover would return,

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