less of the actual damages sustained, was an agreement for liquidated damages or for a penalty, is not before us. All that we decide is that the contract was not an option, but an agreement for an exchange of properties, which was enforceable. Craver & Co. which had been assigned to the plaintiff, and we see no reason for an objection to the admission in evidence of payments made by the defendant of orders drawn upon him by Craver & Co. We have not been impressed with the force of defendant's reasoning in support of the motion to dismiss on the ground that less than $100 is involved in the appeal. The sum sued for in the several causes of action amounts to more; and the plaintiff is still contending that all of it is due, and that there were trial errors affecting his right to recover the full amount. The admissions made by him in his cross-examination did not necessarily preclude him from recovering a sum in excess of $100. Any conflict in the evidence was for the jury to determine. See Acker v. Norman, 72 Kan. 586, 84 Pac. 531. The amount involved in the errors assigned by the plaintiff being in excess of $100, the court acquired jurisdiction. The judgment is reversed as to the second cause of action, in which the plaintiff claims a commission of $90 in the Krug transaction. On that cause of action a new trial is ordered. All the Justices concurring. (89 Kan. 645) Moreover, the general rule applicable to this class of cases is that the agent is not obliged to procure a contract binding upon the purchaser. Betz v. Land Co., 46 Kan. 45, 26 Pac. 456; Beougher v. Clark, 81 Kan. 250, 106 Pac. 39, 27 L. R. A. (N. S.) 198. If he find a purchaser able, ready, and willing to take the land upon the terms agreed upon, or when he has produced a person able, ready, and willing to enter into a contract which is satisfactory to the principal, he has earned his commission. That is what the plaintiff appears to have done. It has been held in numerous cases that the refusal of the vendor to complete the bargain will not defeat the agent's right to the commission. Neiderlander v. Starr, 50 Kan. 766, 32 Pac. 359; Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116; Staley v. Hufford, 73 Kan. 686, 85 Pac. 763; Beougher v. Clark, supra. In the latter case it was said in the opinion: "The agent has no power to execute the contract, to pay the money, to convey the land, or to compel the performance by either of the parties." 81 Kan. 252, 106 Pac. 40. The defendant has cited and relies upon the case of Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918, which has been expressly distinquished and limited in Betz v. Land Co., supra, and 1. APPEAL AND ERROR (§ 284*)-MOTION FOR again in a subsequent decision of the same case. Stewart v. Fowler, 53 Kan. 537, 539, 540, 36 Pac. 1002. The only difference between the Betz Case and this is that in the former the principal by the terms of the contract had an option to forfeit and the purchaser had no option, while in this case it is claimed that both parties had the right to exercise an option. The court in the former case held that the agent was entitled to his commission when he had procured for his principal a party with whom the latter was satisfied and who entered into a written contract to buy at the stipulated price, and was financially able to perform the conditions of the contract, although the contract provided that the principal should have the option to declare a forfeiture for nonpayment of the installments and had exercised such option. We discover no error in permitting defendant upon cross-examination of plaintiff to show the amounts paid by defendant in other transactions wherein the plaintiff was his agent. This appears to have been competent for the reason that, when asked about a certain check which the plaintiff admitted was paid to him, he claimed that it had not been received in any of the trades involved in the action. One cause of action was upon an alleged indebtedness of the defendant to INTERNATIONAL FILTER CO. v. COX (Supreme Court of Kansas. May 10, 1913.) NEW TRIAL-NECESSITY. Where the appellant claims that upon the ascertained and undisputed facts the judgment is erroneous as a matter of law, a motion for a new trial is unnecessary. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1669-1672; Dec. Dig. § 284.*] 2. APPEAL AND ERROR (§ 724*)-SPECIFICA TIONS OF ERROR-SUFFICIENCY. Where, in such a case, there are no special findings, the specifications of error are sufficient if they set forth the particular questions of law which appellant claims were involved in the general judgment and were decided erroneously. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*] 3. SALES (§§ 1682, 248*)-CONTRACT-CONSTRUCTION-LIABILITY FOR PRICE. A contract for the sale of a water filter, evidenced by the correspondence of the parties, it is held was not for a sale upon an implied warranty with a reasonable time for the purchaser to test the machine, but, on the contrary, a sale upon approval, with the understanding that the machine was to be returned within 35 days if it proved unsatisfactory, and further held that, because of failure to return it within the agreed time, the purchaser became liable for the price. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 409-421, 707; Dec. Dig. §§ 1682, 248.*] Appeal from District Court, Sedgwick County. Action by the International Filter Com- ! ference or conclusion from the other specipany against the Cox Bottling Company. fications of error and may be regarded as From a judgment for defendant, plaintiff appeals. Reversed, with directions. Blood & McCormick, of Wichita, for appellant. Dale, Amidon, Madalene & Hegler, of Wichita, for appellee. PORTER, J. Plaintiff claimed to have sold and delivered to defendant a water filter and brought this action to recover the purchase price of $104. The defense was that the filter was sold upon approval, with a guaranty that it would perform the work for which it was purchased; that it failed to do the work; and that defendant had returned it to the plaintiff and therefore owed nothing. A jury having been waived, the cause was submitted to the court. Both parties introduced evidence, and the court made a general finding in favor of defendant. [1] The plaintiff, without filing a motion for a new trial, has appealed from the judgment; and the first contention the defendant makes is that no error is assigned which can be raised, except by a motion for a new trial. The assignments of error are: First. The court erred in finding this an absolute sale with implied warranties and a right to return within a reasonable time. Second. The court erred in finding that the filter was returned within a reasonable time. Third. The court erred in not finding this a sale with conditions subsequent. Fourth. The court erred in not finding generally for the plaintiff and rendering a judgment for the amount claimed, and costs. Plaintiff does not question the facts or the evidence, but, for the purposes of the appeal, takes the position that defendant may have the benefit of the most favorable inferences that can be drawn from the evidence and the general findings; but, granting so much, it claims that the judgment is erroneous as a matter of law; that it should be reversed and judgment ordered in plaintiff's favor. [2] The particular objection to the first three specifications are that they purport to be based upon special findings, while the record shows a general finding only. If it appear, however, from the undisputed facts that, as the plaintiff claims, the general finding necessarily includes findings to the effect that there was an absolute sale with an implied warranty and a right to return the filter within a reasonable time, then the situation is no different from what it would be in case there had been special findings of these facts. The fourth assignment, standing by itself, is insufficient, because it fails to state what erroneous rulings caused the rendition of the judgment in defendant's favor. Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372. But, instead of standing alone, it is a mere corollary of what precedes it; that is, an in superfluous. There are no trial errors complained of and nothing relied upon as ground of reversal save and except pure questions of law arising, according to plaintiff's contention, from facts concerning which there is no dispute, and therefore a motion for a new trial was not necessary; and, for the reasons stated, we regard the specification of errors as sufficient to present the question of law. [3] The contract for the sale of the filter is embraced in certain letters which passed between the parties. In March, 1910, the defendant wrote asking plaintiff for prices on an International filter with a capacity of 150 gallons per hour, to which plaintiff replied stating a price. Nothing came from this exchange of letters, and on August 20th the plaintiff wrote defendant offering to ship a filter with the understanding that it was to be returned within 35 days from date of shipment if the results obtained were not satisfactory. Three days thereafter defendant wired an order for a filter followed by a letter of August 29th asking when shipment would be made. On receipt of this letter plaintiff shipped the filter and on August 31st sent a bill for the purchase price. The defendant on September 9th wrote a letter acknowledging receipt of the machine and advising plaintiff that it had been found upon examination not to be adapted to the defendant's needs for the reason that it would not permit of a tight connection. The letter closed with this statement: "However we I will try to find a way in which it can be used and if successful will give the machine a trial." The plaintiff immediately wrote, making a suggestion that a flexible joint for connecting the filter be employed and offering to advise further if required. Nothing further was heard from the defendant, and on October 26th plaintiff wrote requesting payment, and, receiving no reply, wrote again on November 7th for the same purpose. On November 9th the defendant answered stating that the filter had been shipped on approval; that it had been tried and had failed to give satisfaction; that defendant was returning it, and in the letter there was a bill of lading for the same. November 14th the plaintiff wrote and informed the defendant that the filter had been received and was held subject to defendant's order. On the trial plaintiff produced further correspondence consisting of two letters purporting to come from the defendant and copies of plaintiff's replies to the same. The letters and replies are as follows: "Wichita, Kans., Jan. 26, 1911. The International Filter Co., Chicago, Ill.-Gentlemen: We have to-day been presented with your bill amounting to $104.00 covering our filter which we received on trial and which was returned to you account not satisfactory. We have had our attorneys investigate this matter and find that we are liable, account | decided that it was not adapted to our the filter not being returned within the time work. It must have been a week, probably specified, and are therefore willing to pay, a week, between the time that we took it but we request that you kindly extend this down and boxed it up and the time that we account to the 15th of Feb. as collections are wrote the letter. I do not know why it was very slow at the present time, and we are not taken to the depot before November, not able at the present time to make this some time, except that we are pretty busy payment. We also wish to advise that you down there most of the time, especially this may keep the filter as we have no use for time of year. We keep our help down as it, and we will charge the $104.00 up to ex- low as we can, and that probably accounts perience. Thanking you in advance for any for it. We just didn't get to it." favors which you may show us, and asking you to advise your attorneys to extend the account to the above mentioned date, we remain, Yours truly, [Signed] The Cox Bottling Co." "Jan. 30, 1911. The Cox Bottling Co., Wichita, Kans.-Gentlemen: In reply to your letter of Jan. 26th. It will be entirely satisfactory to us if we receive remittance to cover account of February 15th. Will you kindly arrange to send us same at that time? We will instruct our attorneys to return the claim to us. We believe that after you get this filter paid for and put it into use in your establishment, you will like it and that you will not consider dispensing with it at any price. Yours very truly, International Filter Co." "Feb. 17, 1911. The Cox Bottling Co., Wichita, Kans.-Gentlemen: We are not yet in receipt of your remittance for $104.00 which you agreed to pay by the 15th of this month. We trust that now that we again call your attention to the matter, that you will let us receive same promptly upon receipt of this. Yours very truly, International Filter Co." "Wichita, Kan., Feb. 20, 1911. The International Filter Co., Chicago, Ill.-Gentlemen: Referring to your letter of the 17th relative to our account of $104.00. Beg to advise that we will be able to send you this amount within the next few days, we have been delayed as business and collections are slow for this time of year. Yours truly, [Signed] The Cox Bottling Co." The judgment in defendant's favor amounts to a finding, in effect, that the letters of January 26th and February 20th were written by some person without authority from the defendant, and the determination of that issue is binding upon defendant. It must be assumed that the court found that there was a sale of some kind. That is conceded in the pleadings and admitted by the defendant; and the only theory upon which the court could have found for the defendant is that the evidence shows a sale with an implied warranty, which entitled defendant to a reasonable time to return the filter if it proved unsatisfactory, and that it was returned within a reasonable time. But that theory falls to the ground for the reason that it is in direct conflict with ascertained facts about which there can be no dispute. The offer made by the plaintiff in the letter of August 20th was to ship the filter "with the understanding that it is shipment if the results obtained are not satto be returned within 35 days from date of isfactory." The defendant's letter dated August 29th, directing shipment to be made, was an unconditional acceptance of the offer. The question of a reasonable time in which to test the filter is therefore taken out of the case by the express contract of the parties which fixed the time when the sale was to become absolute if the filter had not been re turned. The writings which comprise the contract. contain no evidence that would justify a finding that there was a warranty of fitness. It is true there were representations made and, if it were conceded that the filter was sold with the knowledge of the plaintiff that it was wanted for a special purpose, still there was no warranty that it would answer that purpose; there was a sale upon approval with a stated time given to enable defendant to become satisfied as to fitness, and either to return the filter, if found unsatisfactory, or keep it and pay the price. The admission of the defendant is that the filter was not reshipped until November 9th, 61 days from the date of shipment, and it appears to have been received by the plaintiff on November 14th. The president and general manager of the defendant testified that he personally conducted the correspondence in regard to buy. ing the filter, but denied writing the letters of January 26th and of February 20th or that he had any knowledge of their being written. He testified that no one else had authority to write them; that there was a young man working there at that time, whose business it was to open the mail and take out orders that came in, who might have written them; that they were written on the letter heads of the defendant company; and that there was nothing about them to indicate that they came from any other office. There was no denial of the receipt of the letters from the plaintiff written in reply thereto. In reference to the filter, the same witness said that it was tested for six weeks and further testified as follows: "I Upon the undisputed facts, the liability of the defendant for the purchase price of the machine is so clear that the judgment will be reversed, with directions to enter judgment for the plaintiff. All the Justices (89 Kan. 611) BURTON v. WICHITA R. & LIGHT CO. (Supreme Court of Kansas. May 10, 1913.) (Syllabus by the Court.) CARRIERS (§ 333*) INJURY TO STREET CAR PASSENGER-LIABILITY. Where the only inference to be drawn from the undisputed facts is that plaintiff's injuries were caused by his own act in stepping from a moving street car and that the defendant company was not guilty of any act of negligence, it is error for the court to set aside a directed verdict in favor of defendant and to grant the plaintiff a new trial. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1385, 1386, 1388-1397; Dec. Dig. § 333.*] Appeal from District Court, Sedgwick County. Action by U. S. Burton against the Wichita Railroad & Light Company. From a judgment for plaintiff, defendant appeals. Reversed. Kos Harris and V. Harris, both of Wichita, for appellant. Stanley & Stanley, of Wichita, for appellee. PORTER, J. This is an appeal from an order granting a new trial. Plaintiff sued to recover for injuries caused by stepping from a street car while it was in motion. The accident occurred on January 19, 1911, at about 7 o'clock in the evening. According to plaintiff's testimony, as the car approached the intersection of the street, where he was to alight, he rose from his seat in the car and went to the rear platform. It car. was a car where the conductor stands on the rear platform and collects fares as passengers enter. The conductor was standing in his inclosure when plaintiff stepped out upon the platform. There was an automobile which had been running alongside and keeping about even with the street When it passed by the car, plaintiff assumed that the latter had stopped, and, without looking up or at other objects at the side of the street, he got off the lower step while the car was still in motion and was injured. He said nothing to the conductor before getting off, and the latter said nothing to him. The court directed the jury to return a verdict for the defendant, but afterwards sustained a motion for a new trial. It is true, as appellee urges in his brief, that it is not negligence per se to get off a moving street car; but, where a passenger is injured as a result of so doing, he must suffer the consequences, unless the injury is caused by some negligence of the company. If, as plaintiff contends, it was not negligence for him to step from the moving street car under the circumstances, it could hardly be negligence of the defendant for the conductor to refrain from warning him not to do so. Besides, there is no evidence that the conductor was aware of plaintiff's intentions. Whether or not a person of ordinary care would have done just as plaintiff did is not the question. Frequently a person is injured although exercising great care and caution to avoid accident; and oftener still the man who acts with only ordinary care meets with a mishap. The plaintiff's act and that alone occasioned the injury. The jury might have found that he was acting with ordinary care, but he cannot recover damages from the defendant for the injuries caused by his own act and without fault of the defendant. The trial court was right in directing statement of the facts is not entitled to rea verdict, and, as plaintiff upon his own cover, it was error to grant a new trial. The judgment is reversed. All the Justices concurring. (89 Kan. 637) DEVER v. MONTGOMERY et al. † (Supreme Court of Kansas. May 10, 1913.) (Syllabus by the Court.) LIBEL AND SLANDER (§ 10*)-WORDS ACTION ABLE. It is not libelous per se to publish of the mayor of a city that he had said, referring to a matter concerning which the law gave him discretion to act as he saw fit, that he was running the town, and the council and people had nothing to do about it. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 41, 91-96; Dec. Dig. § 10.*] Appeal from District Court, Geary County. Action by Thomas Dever against John Montgomery and another. From a judgment for defendants, plaintiff appeals. Affirmed. Thomas Dever, of Junction City, for appellant. Jas. V. Humphrey, of Junction City, and W. S. Roark, of Topeka, for appellees. MASON, J. Thomas Dever brought action against the publishers of a newspaper for damages on account of a statement printed therein with respect to his conduct as mayor. A demurrer to his petition was sustained, and he appeals. No special damages were alleged, and no circumstances were set out such as to give to the language complained of any other than its ordinary effect. The question presented is whether the published article is libelous in itself, assuming it to be false. It is of that character if it tends to subject the plaintiff to disgrace, ridicule, or contempt, irrespective of whether it charges him with committing any illegal act. Eckert v. Van Pelt, 69 Kan. 357, 76 Pac. 909, 66 L. R. A. 266, and cases there cited; Schreiber v. Gunby, 81 Kan. 459, 106 Pac. 276; 25 Cyc. 346-351. The body of the article reads as follows: "Junction City has got a man who defies the taxpayers, defies the city council, of which he is the head, defies them all and says the council or people have nothing to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied June 13, 1913. say about Junction City, only what he says; | tending to subject him to disgrace, ridicule, that's the mayor's attitude just at present. "The members of the city council for the past week have waited for the mayor to call their attention to the fact that a petition containing over 1,600 names signed by the people of the city had been handed to him asking for a meeting of the city council. Not a word from the mayor to the council during this time. Last evening the members of the council met, talked over the matter and decided that perhaps a council consisting of eight good sound men had a little to say regarding the running of this city and so asked the mayor to call a meeting for this evening. or contempt. But each of these statements must be considered in connection with the others, and with the remainder of the article, and the whole must be fairly and reasonably construed. In saying that the plaintiff had defied the taxpayers and council and had failed to recognize the council and people, the writer of the article plainly meant no more than that such was his conception of the effect of the language attributed to the plaintiff, that he was running the town, and the council and people had nothing to do about it. If the published statement that the plaintiff had used these words was not a libel in itself, it was not converted into "The call was made out this morning, sign-one by adding that his language showed a ed by the council and handed to the city clerk, he handed it to the mayor and the mayor laughed. "When asked by a reporter of the Union if he was going to recognize his council and the people of the city the mayor said he was running the town and the council or people did not have anything to do about it. Asked if he intended to do anything he insinuated that it was up to the council and the people to do something if they wanted anything done. disregard for the council and the public. The substantial question for determination is whether it was libelous to publish that the plaintiff had said that he, and not the public or council, was running the city. This language again must be considered in the light of accompanying circumstances. What the plaintiff is alleged to have said must be regarded as applying to the particular matter under discussion, namely, the calling of a meeting of the council. He was not in any just sense accused of saying that in all respects he was running the city, and the council and people had nothing to do with it, but with saying that, so far as re "The councilmen of the city and each and every one of them have taken the time to look up the matter and realize that the people should be given an opportunity to vote.lated to the calling of the meeting, he and If at the election they decided it was not the right thing they would at least have given them an opportunity to express themselves. "As the matter stands this afternoon it is the city council and a petition signed by 1,600 of their supporters against one man, the mayor, asking him to grant them a favor of calling a meeting of the city council." This appeared under the following headlines: "The Mayor Is It? Refuses to Recognize Council or People of the City. Council Met Last Evening. The Mayor Says He is Running the Town and the People Have Nothing to Say." no one else was in control; that he alone had the "say." The statute provides that special meetings of the council "may" be called by the mayor on the written request of three members of the council. Gen. Stat. 1909, § 1362. It might well be contended that the word "may" as so used has the force of "shall," upon the ground that the public has an interest in the matter. 36 Cyc. 760-761; 5 Words & Ph. Jud. Def. 4420, 4436. The same language has been interpreted as only permissive where used with regard to the calling of a school district meeting (State v. School District, 80 Kan. 667, 103 Pac. 136); but im The portion of the article which under-portant considerations upon which that detakes to state the facts with reference to the presentation of a petition and a request for a meeting of the council is obviously not actionable. If the publication is libelous, it must be because of the headlines, the first paragraph, and the following language: "When asked by a reporter of the Union if he was going to recognize his council and the people of the city the mayor said he was running the town and the council or people did not have anything to do about it." Considered alone, a published statement that the mayor had refused to recognize the council or people of the city, or that he had defied the taxpayers and council, or that he had said that he was running the town and that the council or people did not have any cision was based would obviously not apply here. However, as this question has not been argued, it will not be decided. Both parties to the present action appear to assume that under the statute the mayor is vested with a discretion to call a meeting upon a proper request or to refuse to do so, and the case will be considered upon that assumption. In that view of the matter, the responsibility of determining whether a meeting should be had was upon the plaintiff alone. Whatever advisory effect he might see fit to give to petitions and requests, he was bound finally to act upon his own best judgment in view of all the circumstances; his official oath would not permit him to do otherwise. The court is of the |