with a view of there disposing of the same unlawfully in violation of the laws of the state of Oklahoma." This finding conclusive

ly entitled the appellant to an order for the delivery of the beer to him in accordance with the statute. The court also found that the appellant intended and was attempting to transport the beer into that portion of the state of Oklahoma, formerly the Indian Territory, in violation of the laws of the United States. Thereupon the court decided: "(7) That the defendant is not entitled to any protection or relief from this court in the furtherance of his unlawful business; that the intoxicating liquors herein seized and complained of are not entitled to the protection of the court; and that the defendant has no property rights therein entitled to the consideration and protection of this court." The statute (section 4392), providing what judgment should be rendered in such a hearing, reads as follows: "If the court shall find, that said intoxicating liquors or other property, or any part thereof, were at the time the complaint or information was filed being used in maintaining a common nuisance, he shall adjudge forfeited so much thereof as he shall find was being so used, and he shall order the officer in whose custody it is to publicly destroy the same; so much of said intoxicating liquor or other property as the court shall not find to have been used in maintaining a common nuisance he shall order returned by the officer in whose custody it is to the place, as nearly as may be, from which it was taken, or delivered to the person establishing his claim to the same. * However commendable, from a moral standpoint, the judgment of the court may be in assisting to maintain the laws of the United States and of the sister state, the section of our statute, above quoted, compels, under the findings of the court, the discharge and return of the liquors to the appellant.

(Additional Syllabus by Editorial Staff.) 2. EVIDENCE (§ 20*)-ACTIONS FOR FREIGHT CHARGES JUDICIAL NOTICE.

charges, judicial notice will be taken of the
In a delivering carrier's action for freight
fact that, in case of shipments involving the
services of connecting carriers, freights not pre-
paid are collected in a lump sum by the final
carrier prior to delivery.

Cent. Dig. § 24; Dec. Dig. § 20.*]
[Ed. Note.-For other cases, see Evidence,

Appeal from District Court, Reno County. Action by the Southern Pacific Company against F. D. Larabee and another, etc. From a judgment for defendants, plaintiff, appeals. Reversed, with directions.

R. W. Blair, B. W. Scandrett and C. A. Magaw, all of Topeka, for appellant. Prigg & Williams, of Hutchinson, for appellees.

MASON, J. The Southern Pacific Company brought action against the Larabee Flour Mills Company, a partnership. A demurrer to the petition was sustained, and the plaintiff appeals.

The petition alleged that the defendants delivered to the Chicago, Rock Island & Pacific Railway Company a quantity of flour to be transported from Pratt, Kan., to Los Angeles; that the flour was so transported by the Rock Island Company and the plaintiff, and was delivered to the defendants; that the legal charge for such transportation is $509.60, no part of which has been paid.

[1] The defendants maintain that the action is not brought by the real party in interest, that they had no contract relation with the plaintiff, and that no one but the Rock Island Company has a right to sue for the freight charges. We regard these contentions as untenable. The several parties to a shipment of goods effected by means of connecting carriers may be regarded as sustaining different relations with each other, according to the particular aspect in which the matter is presented. The initial carrier, The judgment is reversed, and the case is in the absence of specific instructions, makes remanded, with instructions to render judg-selection of the connecting carrier by whom ment in favor of the appellant as provided the transportation beyond its own line shall by the statute, and to enter of record an or- be continued. 4 Elliott on Railroads (2d Ed.) der in accordance with the judgment. All § 1440. In doing so it acts as the agent of the Justices concurring. the shipper. Elliott on Railroads (2d Ed.) § 1569; 5 A. & E. Encycl. of L. 408, 410. The federal statute makes the initial carrier liable to the shipper for a loss occurring at any point of the route, thus in effect making it the agent of the other carriers (Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. [N. S.] 7), but this does not affect the liability for compensation. So far as concerns the share of the freight charge apportioned to the plaintiff, it is the party beneficially interested in the collection, and sues only to enforce its own right. With respect to the share earned by the Rock Island Company, [Ed. Note. For other cases, see Carriers, the defendants cannot object to the action Cent. Dig. §§ 348, 868, 869; Dec. Dig. § 193.*] being brought by the plaintiff, if on the trial

(89 Kan. 608)

SOUTHERN PAC. CO. v. LARABEE et al.

(Supreme Court of Kansas. May 10, 1913.)

(Syllabus by the Court.)

1. CARRIERS (§ 193*)-ACTION FOR FREIGHT CHARGES-PARTIES-DELIVERING CARRIER. Where goods are delivered to a carrier consigned to a point beyond its own line, no special contract being made, and are delivered to the consignor at the termination named, the delivering carrier may maintain an action against him for the total freight charges, notwithstanding his objection that it is not the

real party in interest.

stances which are not shown in the petition, and which must be pleaded, if reliance is to be placed upon them.

thereof they will be cut off from no defense, | ed to them at Los Angeles, they would oband if a judgment will protect them from viously have been protected from any claim further liability. Rullman v. Rullman, 81 on the part of the Rock Island Company. A Kan. 521, 106 Pac. 52; 30 Cyc. 83. The payment to the plaintiff now, or a judgment plaintiff argues that the court should take in its behalf, would be an equal protection. judicial notice that by custom the charges If the fact that the action is brought by the of the initial carrier are advanced by the Southern Pacific instead of the Rock Island connecting carrier upon receiving the goods, Company in any way embarrasses the defendand assume that course to have been follow- ants in any defense they might wish to ofed in this case, although not specifically fer, it must be because of special circumpleaded. It is said in Schouler's Bailments and Carriers (3d Ed.): "Were carriers to transport in succession without any through arrangement, each might demand his pay in advance, or else hold the goods by his lien at his own journey's end, and the owner, in consequence, would have to employ some one at each terminus to settle charges and put the goods on their course; hence the present business usage, founded on general convenience and necessity, for each succeeding carrier to pay his predecessor's charges in turn, as the owner's agent, and perform his own transportation." Section 610.

The judgment is reversed with directions to overrule the demurrer to the petition. All the Justices concur.

(89 Kan. 661)

HARRIS v. BOARD OF COM'RS OF ED-
WARDS COUNTY et al.
(Supreme Court of Kansas. May 10, 1913.)
. (Syllabus by the Court.)
TAXATION ( 74*)-PROPERTY TAXABLE-CON-
Within the ruling in Motzner v. Bogan, 89
Kan. 131 Pac. 1193, the contracts for the
be subject to taxation as the property of the
conveyance of land involved herein are held to
seller.

TRACTS.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 159, 160; Dec. Dig. § 74.*] Appeal from District Court, Edwards County.

Action by J. F. Harris against the Board of County Commissioners of Edwards County and others. From a judgment for defendants, plaintiff appeals. Affirmed.

T. S. Haun, of Kinsley, for appellant. M. A. Merten, of Kinsley, for appellees.

[2] Judicial notice will at all events be taken of the fact that, in the case of shipments involving the services of connecting carriers, if the freight charges are not prepaid, they are collected in a lump sum by the final carrier prior to delivery. "The methods in vogue, as the court may judicially know, embrace not only the voluntary arrangement of through routes and rates, but the collection of the single charge made by the carrier at one or the other end of the route." Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, 203, 31 Sup. Ct. 164, 169 (55 L. Ed. 167, 31 L. R. A. [N. S.] 7). If the plaintiff advanced the amount due the Rock Island company, as it had a right to do (6 Cyc. 495), or if in pursuance of an arrangement between the companies it was charged JOHNSTON, C. J. The question involved with the amount, it had a right to sue wholly in this proceeding is whether or not two for its own benefit. If it had neither paid contracts relating to the sale of land are nor been charged with the Rock Island Com- subject to taxation. The officers of Edwards pany's share of the freight, it nevertheless county assessed them for that purpose, and was entitled to make the collection for the in this action J. F. Harris, the vendor, sought benefit of that company as its agent. El- to enjoin the collection of the taxes. One of liott on Railroads (2d Ed.) § 1569; 6 Cyc. 496, the contracts stipulated for a sale of 240 note; 5 A. & E. Encycl. of L. 406, note; acres of land for the price of $6,600, $650 of 2 Hutchinson on Carriers (3d Ed.) 964. See, which was paid shortly after the sale, when also, Coal & Coke Co. v. Railroad, 116 Mo. possession of the land was given and the reApp. 214, 92 S. W. 714. Having a beneficial mainder was to be paid in installments and interest, it could sue in its own name. 31 Cyc. to draw interest at 6 per cent. per annum, 1621. The interstate commerce commission and provisions were made for taking care of has made rulings to the effect that the final an existing mortgage upon the land. It was carrier is required to collect all undercharg- agreed that one-half of the crops grown on es. Conference Rulings Bulletin No. 5, the land by the purchaser should be paid April 1, 1911, Rules 3, 16, 156, 187. Whether to the seller and credited by him on the puror not these rulings apply directly to this chase price, and also that the purchaser case, they illustrate the proposition that the should plant 130 acres of the land in wheat delivering carrier sustains such a relation each year. It was further stipulated that to the transaction as to enable it to main- the purchaser should pay the taxes on the tain an action for the freight charges in be- land. There was a further provision that, half of all the carriers concerned. If the de- upon full payment of the price of the land fendants had paid the freight charges to the and the accrued interest, the seller would plaintiff at the time the goods were deliver-execute to the purchaser a formal convey

The judgment of the district court will be affirmed. All the Justices concurring.

(89 Kan. 696)

HUSSEY v. BARTHOLOMEW et al.
May 10, 1913.)

(Supreme Court of Kansas.

Appeal from District Court, Cowley County. Action by P. E. Hussey against C. H. Bartholomew and others. Judgment for plaintiff, and defendants appeal. Affirmed.

ance of the land, but that, if the purchaser and relieve themselves from performance. should fail in the performance of his part of The contracts would be still enforceable the contract, the payments which had been against the vendee as well as against the made by him should be considered as rent land. If enforceable against either, the confor the land during his occupancy of it, and tracts are taxable." 131 Pac. 1195. See, also, that the seller would then have the right to Williams v. Osage County, 84 Kan. 508, 114 regain the possession of the same. The other Pac. 858, 34 L. R. A. (N. S.) 1221; McGregor contract evidenced a sale of 400 acres of land v. Ireland, 86 Kan. 426, 121 Pac. 358. at the price of $20,000, the purchaser making the first payment of $2,500 by the transfer of another tract of land which he owned to the seller and the unpaid part of the purchase money, $17,500, was to draw interest at the rate of 7 per cent. per annum. It was stipulated that crops of certain kinds should be grown on the land and one-half of the crops so grown should be applied as payments on the unpaid purchase price of the land, and also that the purchaser should have the privilege of making a payment of $100 or more at any time he might choose. The taxes on the land were to be paid by the purchaser, and it was further agreed that, if he failed to perform his part of the contract, the payments already made by him, whether in money or crops, should be treated as rent for the use of the land during his Occupancy of it. Under these agreements, mutual obligations are assumed between the seller and purchaser. The seller conveys an interest in the land, and the purchaser, who obtains an equitable title to it, binds himself absolutely to pay the unpaid portion of the purchase price. When the purchaser has performed his part of the agreement, he becomes entitled to and can compel the execution of a formal conveyance of the land, and the seller has an enforceable obligation for a definite amount, and retains the legal title to the land as a security for the payment of the obligation.

Hackney & Lafferty, of Winfield, for appellants. Jackson & Noble, of Winfield, for appellee.

PER CURIAM. In this controversy, which arose out of a real estate transaction, the appellee claimed that appellants, through misrepresentation and fraud, obtained $600 from him, in the city of Le Roy, but that instead he was for which he was to be given a title to property offered land owned by Bartholomew, which Bartholomew had transferred to Strong, subject to a mortgage executed by Strong for a sum much in excess of the value of the land. The testimony of appellee is sufficient to sustain his theory and claim, while that of appellants was that appellee had purchased the Bartholotation of the facts to him, nor a misunderstandmew land, and that there was no misrepresening of them by him. The testimony was confined largely to that given by the three parties involved in the transaction.

The jury chose to believe the testimony of appellee as against that given by appellants, and the jury being the judges of the credibility of the witnesses, and the verdict having been approved by the trial court, the judgment must be affirmed.

(89 Kan. 554)

STONER v. KANSAS CITY. (Supreme Court of Kansas. May 10, 1913.) Appeal from Court of Common Pleas, Wyandotte County.

Action by Sarah Stoner against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

both of Kansas City, for appellant. J. E. McRichard J. Higgins and W. H. McCamish, Fadden and O. Q. Claflin, both of Kansas City, for appellee.

Under prior decisions, these contracts have the elements which render them subject to taxation in the hands of the seller. The provisions for cropping the land and applying a portion of the crop towards the payment of the purchase price does not change the character of the indebtedness held by the seller. The crop provisions are substantially similar to those contained in the contracts in Motzner v. Bogan, 89 Kan. - 131 Pac. 1193, and it was there held that the agreement to apply a portion of the crops or the proceeds of them was only an alternative means of payment and an additional security of the indebtedness owed by the purchaser to the seller. The failure of the purchaser to comply with the crop requirements would not it was held impair the obligation to pay the purchase price, and neither does the op-ed and followed. tion reserved to the seller to declare a forfeiture for nonperformance of the conditions take away the enforceable quality of the contract. In that case it was said: "The vendees cannot by default in cultivation and the application of proceeds or in making

the case of Nesbit v. City of Topeka, 87 Kan. PER CURIAM. The defendant asks that 394, 124 Pac. 166, 40 L. R. A. (N. S.) 749, be overruled. Upon reconsideration, the court is ion in that case, and consequently it is approvsatisfied with the views expressed in the opin

An instruction to the jury stated that in computing damages the jury might take into consideration the loss, if any, sustained by the plaintiff from being deprived of the care, attention, and society of her husband. Standing alone, the statement might be taken as authorizing solace money as an independent item of damages. It was preceded and followed, how

ited recovery to pecuniary damages only, and
consequently it is not likely that it was mis-
construed.
The judgment of the trial court is affirmed.

(89 Kan. 568)

Modified and affirmed.

J. B. Tomlinson, of Independence, for appellant. Stanford & Stanford, of Independence, for appellees.

attention was challenged by the abstracts, was insufficient to sustain the charge of extreme cruelty, and the cause was reversed. Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553. An amended petition was afterwards filed in the court below, and the cause was sent to another county, where it was tried before a different judge, with the same result as at the first trial.

We are again asked to reverse a decree granting a divorce, on the ground that it is contrary to the evidence; and as a further

BLOOM et al. v. FOSTER et al. † (Supreme Court of Kansas. May 10, 1913.) Appeal from District Court, Montgomery County. Action by A. B. Bloom and others against Eground it is urged that the evidence is in no L. Foster and others. Judgment for plaintiffs, ed at the former trial, and that therefore the essential respect different from that introducand defendant John R. Robertson appeals. matter was res judicata. The evidence in the present case is deemed sufficient to sustain the finding of extreme cruelty. No good purpose would be served by setting it out in this opinion. If, as appellant asserts, the evidence offered on the first trial and relied upon by the wife is the same as that produced at the second hearing, it is sufficient to say that for some reason much of it was not brought to our attention by the abstract or otherwise in the former appeal. Had it been, it is probable that a different result would have been reached. We find no error in permitting the amendment to the petition, or in a retrial of all the issues raised.

PER CURIAM. As we construe the contract made by the parties, the appellee guaranteed that well No. 10 should have a certain capacity, in consideration of which the price per foot for drilling that well was increased from 70 cents to $1. If the capacity of the well to produce gas proved to be less than the stipulated amount, he was not to receive any compensation. There is no claim that he failed to satisfy the terms of his guarantee. The court found generally for the appellee, and we think the evidence is sufficient to sustain the judgment, except as to the allowance of $50 for cleaning out well No. 10. There was no evidence of any agreement to pay for cleaning out new wells, nor was there evidence of a custom by which the owner paid for that work. The judgment is therefore ordered modified in accordance with these views.

(89 Kan. 592)

ROWE v. ROWE.

(Supreme Court of Kansas. May 10, 1913.) Appeal from District Court, Anderson County.

Action by Sarah T. Rowe against Frank S. Rowe. Judgment for plaintiff, and defendant appeals. Affirmed.

Bennett & Cullison, of Iola, for appellant. Ewing, Gard & Gard, of Iola, and G. W. Hurd, of Abilene, for appellee.

PER CURIAM. When this case was here before, the court was of the opinion that the evidence, or that portion of it to which our

There are no substantial grounds of error shown, and the judgment is affirmed.

(89 Kan. 607)

KANE v. HOLLAND TP.
(Supreme Court of Kansas. May 10, 1913.)
Appeal from District Court, Dickinson
County.

Action by R. H. Kane against Holland Township. Judgment for defendant, and plaintiff appeals. Affirmed.

C. S. Crawford, of Abilene, for appellant. C. E. Rugh, of Abilene, for appellee.

this case created an agency for the disposition of the defendant's railroad stock, but not an exclusive agency or a general power to control its disposition. The defendant still had the right to make an independent sale without consulting or notifying the plaintiff. Since the plaintiff failed to effect a disposition of the stock, nothing was received through his efforts, and he earned nothing.

PER CURIAM. The contract involved in

The judgment of the district court is affirmed. Rehearing denied June 13, 1913.

SMYRE v. BOARD OF COM'RS OF KIOWA rent for the use of a hall and stairway which

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes