court of Dickinson county, Kan., claiming in his petition that he had made an oral agreement with said defendant, Hallam, for the purchase of certain real estate, and had paid, as part consideration therefor, $567.50; that the defendant, being unable to make a title thereto, rescinded said sale, and had paid back all of said $567.50, except the sum of $122.50; and praying judgment for said lastmentioned sum, with interest and costs. To this petition the defendant answered-First, by a general denial, and, second, by a recital of the facts substantially as hereinbefore set forth. The plaintiff replied by generally denying all the allegations and aver ments set up in said second count of defendant's answer. Trial was had to the court at its February term, 1895, and it found the issues for the plaintiff. A motion for a new trial was duly made, overruled, exceptions saved, and the case brought to this court for review.

We are first met by an objection interposed by the defendant in error to a review of the alleged errors in this action, for the reason that the record does not affirmatively show that a motion for a new trial was filed within three days after the judgment of the trial court was rendered, and for that reason it must be presumed that the motion for a new trial was overruled, because it was not filed in time, and that all errors occurring during the trial were waived. The record shows that the trial of this case was commenced on the 13th day of February, 1895; that, upon the close of the testimony, the court found the issues for the plaintiff, to which finding the defendant excepted at the time, and thereupon filed his motion for a new trial, and thereafter, to wit, on the 26th day of February, 1895, said motion for a new trial came on to be argued, and was argued by counsel, and the court, having heard the same, denied the said motion, to which order denying said motion the defendant excepted. We think that the record does affirmatively show that the motion for a new trial was filed on the 13th day of February, 1895, or at least on the same day the trial was concluded. Under the authority of Hill v. Wand, 47 Kan. 340, 27 Pac. 988, "thereupon" is construed as "an adverb of time, and held to mean without delay or lapse of time." We think that this definition of the word is in harmony with the best authorities and common usage.

There is very little, if any, conflict of testimony in this case. The facts are substantially admitted by both parties, and the only question is whether, from these facts, the plaintiff below was entitled to recover. The illegality of the arrangement to prevent competition is admitted by the defendant in error, but he contends that there was a new contract founded upon an independent consideration, under which the plaintiff below was entitled to recover, and this view was concurred in by the trial court. This, we

think, was error.

After carefully review

ing all the evidence and pleadings, we are forced to the conclusion that it was all one transaction, intimately connected, and no part of it but what grew immediately out of the illegal act. The first principle laid down in Armstrong v. Toler, 11 Wheat. 258, is as follows: "Where a contract grows immedi ately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. So, if the contract be in part only connected with the ille. gal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it." And a careful consideration of all the cases cited in no way disputes or contradicts this principle. In McBlair v. Gibbes, 17 How. 236, the United States supreme court says: "It may be admitted that even a subsequent collateral contract, if made in aid and in furtherance of the execution of one infected with illegality, partakes of its nature, and is equally in violation of law." The judgment of the district court will be reversed, and judgment ordered for the plaintiff in error (the defendant below).

MCELROY, J., concurs. MAHAN, P. J., having been of counsel, not sitting.

(5 Kan. App. 300) TEAGUE et al. v. FIRST NAT. BANK OF SALINA et al.

(Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) NATIONAL BANKS-USURY-RECOVERY OF PENALTY -CAUSE OF ACTION.

1. Under the Revised Statutes of the United States (section 5198), which authorize the person paying usurious interest to a national bank to recover twice the amount paid, several of the joint makers of a note on which illegal interest is paid by such parties individually cannot unite in one action to recover such penalty.

2. The statute confers upon the parties separate rights. That they have paid equal amounts cannot change the rule. The cause of action accrues to the one paying the unlawful interest, and to each one making such payments. There is no cause of action to the makers of the note on which usurious interest is paid. The cause of action arises when the unlawful payment is made, and to each of the ones making such pay

ments.

(Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by Clara W. Teague and Matilda Ober against the First National Bank of Salina, Kan., and Drusilla Daily. Judgment for defendants, and plaintiffs bring error. Affirmed.

Hutchinson & Banks and C. A. Hiller, for plaintiffs in error. Bond & Osborne, for defendants in error.

MCELROY, J. On June 4, 1891, Clara W. Teague and Matilda Ober filed their amend

ed and supplemental petition, substantially as follows: "(1) First cause of action against the defendants herein: Allege and show that the defendant bank is, and was during all the transactions with it hereinafter referred to, a national banking association, formed and existing under the laws of the United States, and especially under title 62, 'National Banks,' Rev. St. U. S. 1878 (2d Ed.), and amendments thereto, as a corporation, and is, and during all the time and transactions hereinafter mentioned was, located and doing business in the city of Salina and state of Kansas; and the defendant bank, acting as a national banking association as aforesaid, did and performed the acts, matters, and things hereinafter alleged as having been done and performed by the defendant bank. And the plaintiffs further allege: That on the 9th day of August, 1889, the plaintiff and said Drusilla Daily jointly made, executed, and delivered to the said the First National Bank, defendant, their promissory note in writing for the sum of $888.93, payable at Salina, Kansas, to the said defendant bank or order, ninety days after date, for money loaned them by said bank, which note and money is now fully paid. That at the date aforesaid the rate of interest was fixed by the laws of the said state of Kansas, and the highest rate of interest allowed by law in said state of Kansas, under the statute law of said state in such cases made and provided, was ten per centum per annum; and no different rate of interest was then limited or allowed by the laws of said state for banks of issue organized under the laws of said state. That the plaintiffs, Clara W. Teague and Matilda Ober and Drusilla Daily (now defendant herein), on the date aforesaid jointly paid the defendant bank, and the defendant bank knowingly and wrongfully demanded and received from the plaintiffs, Clara W. Teague, Matilda Ober, and Drusilla Daily (now defendant herein), interest in advance on said note for the time it had to run, a greater rate of interest than was allowed as aforesaid by the law of the said state of Kansas, to wit, the rate of twelve per centum per annum, and in all the sum of $27.55; and the defendant bank did then and there wrongfully appropriate said sum of $27.55 as and for a payment of the interest it so demanded and received on said note as aforesaid, and ever since has wrongfully applied and so made use of the said sum of $27.55, against the statute of the United States in such cases made and provided. That the plaintiffs, Clara W. Teague, Matilda Ober, and Drusilla Daily (now defendant herein), on the 26th day of January, 1891, made demand on said defendant bank to pay twice said sum of $27.55, to wit, $55.10, the same being twice said sum of $27.55 so wrongfully received, appropriated, and retained by the defendant bank. The said defendant bank refused and neglected to pay

the same, and the said sum of, to wit, $55.10, and interest thereon from said 26th day of January, 1891, is now due and wholly unpaid. These plaintiffs, Clara W. Teague and Matilda Ober, further aver that a former petition was filed herein as aforesaid, in January, 1891, wherein the plaintiffs named in this petition, and said Drusilla Daily, now named as defendant herein, were the plaintiffs therein, and that the allegations in said former petition were in all respects true, as therein stated, and the same are now true, except the other and additional matters occurring since the said former petition was filed, and now set out in this supplemental and amended petition; that since the filing of said former petition the said Drusilla Daily, on her motion therefor, was permitted, by order of the court, to withdraw from this case, and to dismiss the same, so far as it concerned any claim of herself, individually, against the said defendant bank, on the matters set forth in said former petition filed in this case. And these plaintiffs aver that said Drusilla Daily refused to join in the further prosecution of this action against said defendant bank, and that she was at the time of said former petition, and now is, a party united in interest with those plaintiffs, Clara W. Teague and Matilda Ober, and entitled individually to a one-third share, interest, and part of the money claimed and sought to be recovered in this action. And these plaintiffs further aver that since the filing of the said former petition, to wit, on March 1, 1891, the defendant Drusilla Daily and said defendant bank, by some agreement in writing made and entered into between themselves without notice or the knowledge of these plaintiffs, the exact nature and scope of which these plaintiffs are in ignorance, and have not the possession or control thereof, and for that reason cannot allege and set forth the same and attach the same hereto as a part hereof; but they allege the same to be, in substance, that the said Drusilla Daily discharged and released said bank from any and all further claim or liability for her one-third part of the claim, indebtedness, and subject-matter of this suit alleged in said former petition, and that the same was done by and between these defendants aforesaid by consideration, confederation, and collusion between them, with a fraudulent intent and purpose by them to cheat these plaintiffs of their right of action and enforcement of their claim alleged against said defendant bank. By reason of the premises aforesaid an action has accrued to the plaintiffs to have and recover of said defendant bank two-thirds of twice the amount of said sum of $27.55 so paid and received by the defendant bank as interest on said note as aforesaid, to wit, the sum of $36.75, and interest thereon from January 26, 1891, at 7% per annum; and the plaintiffs claim two-thirds of twice said sum of $27.55, to wit, $36.75, and interest thereon

from January 26, 1891, at 7% per annum, and bring this action to recover the same." This petition contains 16 causes of action. Each of said causes of action was, in substance, the same as the one herein set out. The defendants in the court below filed a demurrer to this petition, which was sustained by the court, and thereupon the plaintiffs amended by striking out the following words: "For money loaned them by said bank, which note and money is now fully paid." And after the petition was so amended the defendants filed a demurrer thereto, which was by the court sustained. And thereupon the plaintiffs amended by substantially inserting the words formerly erased. The defendant bank filed its answer to the amended and supplemental petition herein, as follows: "First. That it denies each and every allegation therein contained, except the allegation that this defendant is a national banking corporation. Second. And, further answering, said defendant the First National Bank of Salina, Kansas, says that said plaintiffs ought not to have and maintain their said action, because it alleges that said plaintiffs have no common or joint interest therein, and that whatever payments of money, as interest or otherwise, were made by said plaintiffs, were made severally and individually by plaintiffs and not jointly. For reply, the plaintiffs filed a general denial. The case came on for trial on December 13, 1892, upon the issues joined, before the court and jury. The plaintiffs in the trial court introduced their evidence, and rested, and thereupon the defendant bank interposed its demurrer to said evidence for the reasons: First, no cause of action is proven; second, the evidence shows that the plaintiffs have no joint interest in the subject-matter of the action or in the relief demanded; third, the cause of action alleged is not proven. The trial court sustained the demurrer, and rendered judgment for the defendants in error and against plaintiffs in error. The plaintiffs in error excepted to the ruling of the court, and filed their motion for a new trial, which was overruled, and bring the case here for review.

An examination of the record in this case discloses, substantially, the following facts: That in 1887 the plaintiffs in error borrowed of the defendant bank of the city of Salina about $5,000. That the same was borrowed at three different dates. At the time the money was borrowed, Drusilla Daily, Matilda Ober, and Clara W. Teague gave their joint notes, as evidence of the indebtedness. It seems that these notes matured from time to time, 90 days from date. At the maturity of these notes these parties would each pay, from their separate and individual funds, one-third of the amount of interest, on a basis of 12 per cent., and give their joint notes for the principal of such indebtedness. The determination of this case involves the

examination of one question: Did the plaintiffs show such a joint interest in the subject-matter and relief demanded as to entitle them to maintain a joint action? Upon an examination of the evidence in this case, we find that the plaintiffs in error made no joint payment of interest. They had .no common fund, and the several payments were made by each one, individually, from her individual money. Rev. St. U. S. § 5198: "In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of interest thus paid from the association taking or receiving the same: provided such action is commenced within two years from the time the usurious transaction occurred." It will be observed that the penalty for illegal interest is recoverable only by the person by whom it has been paid, and the liability of the receiving bank is solely to such person. One of the joint makers of a note on which illegal interest is charged cannot recover the penalty from the bank, where the illegal interest was paid by the other maker. This question was decided by the supreme court of this state in Bank v. Rowley, 52 Kan. 394, 34 Pac. 1049. Johnston, J., delivering the opinion, said: "The liability, however, is to the person who paid it. The penalty can only be enforced in the manner and under the circumstances provided in the act of congress, which provides that the right of recovery rests only in the person by whom it has been paid, or his legal representatives.' From the evidence it appears that Rowley and Groves were joint makers of the note upon which the illegal interest was charged and paid. While the loan was made to Rowley, both of them were liable on the note; and the bank, at its option, might have brought an action against one or both of them. The court found that Groves, not Rowley, paid the illegal interest, and that the payments were made by Groves out of his own money. The money having been paid by him, the liability arises in his favor, and no recovery can be had except by him or his legal representatives." Under the evidence in this case, showing separate payments, the statute confers upon the parties separate rights. That they may have paid equal amounts cannot change the rule. cause of action accrues to the one paying the unlawful interest. That one alone who makes the payment, or his legal representatives, can recover. There is no cause of action to the makers of the note on which usurious interest is paid. The cause of action arises when the unlawful payment is made, and to the one making such payment. See Durein v. Pontious, 34 Kan. 353, 8 Pac. 428, and cases there cited. The judgment of the trial court will be affirmed. All the judges concurring.

The

(5 Kan. App. 279)

LOONEY v. REEVES et al. (Court of Appeals of Kansas, Northern Department, C. D. Jan. 18, 1897.) CONFLICT OF LAWS-RES JUDICATA-COVENANTS

WARRANTY-DAMAGES-MITIGATION.

1. The record of a judgment rendered by a court of another state is not admissible in evidence for the purpose of proving the determination of a fact involved in the trial of a case in a district court of this state, when such record shows that such judgment was rendered without jurisdiction of one of the necessary parties.

2. In an action in this state to recover on the covenants of warranty in a deed executed in this state for a failure of title to real estate situated in the state of Missouri, the measure of recovery is governed by the laws of this state.

3. When the title to real estate fails, the measure of the vendee's recovery on the vendor's covenants of warranty is the purchase price. When no definite price is agreed upon, but there is an exchange of lands, the agreed value, or, if none, the market value, of the lands given in exchange, is the measure of damages.

4. In an action brought by the vendee of lands to recover damages for a want or defect of title, the vendor may show, in mitigation of damages, that before the trial he had perfected the title in the plaintiff.

(Syllabus by the Court.)

Error from district court, Ellsworth county; W. G. Eastland, Judge.

Action by W. H. Reeves and another against Ozroe B. Looney. From a judgment for plaintiffs, defendant brings error. Reversed.

Ira E. Lloyd, for plaintiff in error. N. Coover and C. J. Evans, for defendants in error.

CLARK, J. This is an action brought in the district court of Ellsworth county by William H. Reeves and James O. Reeves to recover from Ozroe B. Looney $1,500 damages upon alleged breach of covenants contained in a deed of general warranty to 120 acres of land in Cape Girardeau county, Mo. The plaintiffs recovered a judgment for $649.65, and the defendant, as plaintiff in error, has brought the case to this court. The evidence preserved in the record clearly shows that on October 29, 1890, Looney claimed to be the owner of said real estate, and that Mrs. Mary Reeves, the mother of the defendants in error, was the owner of land in this state situated in said Ellsworth county, upon which there was an incumbrance of about $3,350; that on said October 29th, in said Ellsworth county, by virtue of a trade which was then and there consummated, Mrs. Reeves conveyed to Looney her Ellsworth county land, subject to the incumbrances thereon, and Looney, in consideration therefor, at the same time and place, executed to the defendants in error the warranty deed above mentioned, and paid in cash, either to Mrs. Reeves or to her said sons, the sum of $500; that the consideration for the land so conveyed by Looney, as expressed in the deed, was $1,500, while in

the deed to Looney the consideration for the Ellsworth county land was placed at $7,000. The court instructed the jury that if they should find that the deed from Looney expressed the actual consideration received by him for the Missouri land, the plaintiffs would be entitled to recover the amount thereof as damages for a breach of the covenants of title; but that, if they should find that it was understood that the land was of much less value, or was valued at a much less sum than that expressed in the deed, then they should ascertain such valuation, and return a verdict in favor of the plaintiffs for the amount thereof. An instruction was also given that if the jury should find and believe from the evidence that no specified sum was understood or agreed upon between the parties as the valuation of the land, but that the sum of $1,500 was inserted therein as a matter of convenience only, then the plaintiffs would be entitled to recover as their damages the amount which the jury should find and determine from the evidence to be the consideration which was actually paid or given for the land. The jury found that neither deed expressed the actual consideration for the land therein mentioned, and also made the following special findings of fact: "(4) On October 29, 1890, what was the market value of the real estate described in the deed offered in evidence, and dated October 29, 1890, being the deed from Mary Reeves and A. P. Reeves to O. B. Looney? Ans. $4,460.80. (5) When O. B. Looney received the said deed described in the preceding interrogatory, did he not pay to the said Mary Reeves, or the plaintiffs in this action, the sum of $500, and also execute to the plaintiffs in this action the deed, a copy of which is attached to the plaintiffs' petition? Ans. Yes. (6) Was the transaction between the Reeveses and Looney in the exchange of real estate simply a trade of one tract of land for the other, Looney paying $500 in addition to the Missouri land, without reference to any particular valuations so far as the Missouri land was concerned? Ans. Yes."

In answer to the first question raised by the plaintiff in error we need only to state that the deed containing the covenant of warranty was executed in this state, and the covenantee is here seeking to recover for a breach of such covenant. The damages in such case must be computed according to the law in this state.

The plaintiff in error complains of the admission in evidence of the record of a judgment of eviction rendered in Missouri against the defendants in error, and the giving of an instruction to the effect that such record disclosed a valid judgment. This record shows that the Missouri court acquired no jurisdiction of W. H. Reeves, yet it proceeded to render a judgment against him. As, under the numerous decisions of our supreme court, that judgment against W. H. Reeves

was void, it was error to admit such record in evidence for the purpose of showing a judgment against him; and the court also erred in its instructions to the jury respecting said record, and in refusing to instruct the jury as requested by the plaintiff in er

ror.

Complaint is also made of the ruling of the court in refusing to permit the plaintiff in error to introduce evidence tending to show that since the commencement of this action he had acquired a good title to the Missouri land, and that under the laws of that state such after-acquired title inured to the benefit of the defendants in error. The court erred in this ruling. Such evidence was admissible in mitigation of damages. King v. Gilson, 32 Ill. 348; Bank v. Glenn, 68 N. C. 35; Reese v. Smith, 12 Mo. 344; Baxter v. Bradbury, 20 Me. 260; 3 Sedgw. Dam. § 978; Kimball v. Bell, 49 Kan. 173, 174, 30 Pac. 240.

It is finally contended that, as no stipulated price for this land was agreed upon in the trade, the measure of damages upon a failure of title thereto would be the actual value of the property at the time of the trade, with interest thereon from the date of eviction, and that the court erred in refusing to so instruct the jury, as well as in ruling out evidence offered tending to show the value of said land, and that the same was less than $200. The defendants in error insist, however, that the measure of damages upon the breach of covenants of title to real estate is the purchase price paid therefor, with interest from the date of eviction, and that the court properly instructed the jury upon this point; and that, as there was no understanding or agreement between the parties, when making the trade, that the value of the 120 acres should in that transaction be estimated by them at any particular sum, the value of the property given in exchange therefor must necessarily be deemed the purchase price. It is well settled that, where the title to real estate fails, the measure of the vendee's recovery on the vendor's covenant of warranty is the purchase price. Stebbins v. Wolf, 33 Kan. 765, 7 Pac. 542; Reese v. Smith, supra; Baxter v. Bradbury, supra; Dickson v. Desire's Adm'r, 23 Mo. 151; King v. Gilson, supra. The jury evidently arrived at their estimate of damages by deducting from the value of the Ellsworth county land the amount of the incumbrances thereon and the $500 paid by Looney. This would leave $610.80 as the actual consideration paid for the 120 acres; and this sum, with interest thereon from the date of eviction, would equal the amount of the general verdict. We see no objection to this method of ascertaining the amount of damages sustained by the defendants in error. Where no definite price is agreed upon, but there is an exchange of lands, the agreed value, or, if none, the market value, of the lands given in exchange therefor, is the proper measure of damages. Burke v.

Beveridge, 15 Minn. 205 (Gil. 160); Lacey v. Marnan, 37 Ind. 168; Hodges v. Thayer, 110 Mass. 286; Evans v. Fulton (Mo. Sup.) 36 S. W. 230. Because of the errors of the court herein pointed out, the judgment will be reversed, and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

(5 Kan. App. 326)

CHAPMAN v. STEINER et ux. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) NONNEGOTIABLE NOTE-ASSIGNMENT-PAY

MENT TO ASSIGNOR.

1. Where a note, otherwise negotiable in form, contains the following clause: "In case of the breach of any of the covenants or conditions in the mortgage deed securing this bond contained, to which said deed reference is hereby made, and which is made a part of this contract, in either such case the said principal sum with all accrued interest shall, at the election of the legal holder or holders hereof, at once become due and payable without further notice, and may be demanded and collected, anything herein contained to the contrary notwithstanding," held, that this clause renders the note a nonnegotiable instrument.

2. Where the maker of a nonnegotiable instrument pays the same to the payee named therein without notice that the same has been assigned to other parties, in good faith, believing that the payee is entitled to collect the same, such payment is an extinguishment of the indebtedness.

(Syllabus by the Court.)

Error from district court, Ellsworth county; W. G. Eastland, Judge.

Action by C. C. Chapman against John Steiner and Frances Steiner, his wife. Judgment for defendants, and plaintiff brings error. Affirmed.

Wheeler & Switzer, for plaintiff in error. Ira E. Lloyd, for defendants in error.

MCELROY, J. On the 2d day of August, 1886, the Western Farm-Mortgage Company, of Lawrence, a corporation, organized and doing business under the laws of the state of Kansas, loaned to John Steiner and Frances Steiner the sum of $500, and accepted as evidence of such indebtedness their real-estate coupon bond, payable to the order of one W. J. Neill at the Third National Bank in the city of New York on the 1st day of August, 1891, which real-estate mortgage bond is in words and figures as follows: "No. 5,999. United States of America. $500.00. RealEstate Mortgage Coupon Bond. Secured by First Mortgage. 8 Per Cent. Semiannually. Know all men by these presents, that the undersigned, of the county of Ellsworth, and state of Kansas, do, for value received, hereby acknowledge ourselves to be indebted, and by these presents promise to pay to the order of W. J. Neill the principal sum of five hundred dollars in lawful money of the United States of America, at the Third National Bank in the city of New York, on the first day of August, A. D. one thousand eight hun