lants' motion for a new trial are properly | Gardner v. Southern R. Co. 127 N. C. 293, questioned. 37 S. E. 328; Schaller v. Chicago & N. W. R. Co. 97 Wis. 31, 71 N. W. 1042; Louisville & N. R. Co. v. Gilbert, 88 Tenn. 430, 7 L. R. A. 162, 12 S. W. 1018; Ft. Worth & D. C. R. Co. v. Wright, 24 Tex. Civ. App. 291, 58 S. W. 846; Stewart v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 218, 225, 52 N. E. 89. A reduction in the usual freight rate is a sufficient consideration, but such concession in charges must be actual, and not fictitious; and a mere recital or ac

1. The general assault upon these paragraphs is that, being suits upon a special contract, they each fail to disclose an actionable breach of the contract sued on; the argument being that, as the paragraphs imperfectly count upon the violation of an express contract, there can be no recovery upon a contract implied. We readily acknowledge the rule to be that, if a plaintiff recover, he must do so upon and in accordance with the allegations of his complaint; and, in the ap-knowledgment in the bill of lading that such plication of this rule, a suit against a common carrier for a breach of its common-law duty in the transportation of live stock must fail upon proof that the shipment was made under a special contract. Lake Shore & M. S. R. Co. v. Bennett, 89 Ind. 457; Hall v. Pennsylvania Co. 90 Ind. 459. And vice versa, Fry v. Louisville, N. A. & C. R. Co. 103 Ind. 265, 2 N. E. 744. But are these actions upon a special agreement, within the purview of the rule? As we understand the paragraphs-and there is really no difference between them in respect to the general questions they proceed upon the theory that the plaintiff was compeled by his situation to assent to what purports to be a special contract of carriage under such circumstances and conditions as render the special stipulations void. He alleges that he did not choose between two rates of freight; that he did not know he had a right to so choose; that appellants had no such thing as two rates of freight for the transporta tion of car loads of horses from Kokomo to Indianapolis, and that he was required by appellants to sign the bill of lading exhibited, exempting them from liability, as a condition precedent to the shipment of the horses; and that he received no consideration for relieving appellants of their common-law duty. It is well settled that a public carrier may, to some extent, limit by stipulation in the bill of lading his strict common-law liability. Insurance Co. V. Lake Erie & W. Co. 152 Ind. 333, 53 N. E. 382. But it is equally well settled that a contract qualifying the responsibility imposed upon the carrier by the common law must be supported by a valuable consideration, apart from the mere acceptance of the property for carriage. Rosenfeld v. Peoria, D. & E. R. Co. 103 Ind. 121, 53 Am. Rep. 500, 2 N. E. 344; German v. Chicago & N. W. R. Co. 38 Iowa, 127; Wehmann v. Minneapolis, St. P. & S. Ste. M. R. Co. 58 Minn. 22, 59 N. W. 546; Southard v. Minneapolis, St. P. & S. Ste. M. R. Co. 60 Minn. 382, 62 N. W. 442, 619; McFadden v. Missouri P. R. Co. 92 Mo. 343, 1 Am. St. Rep. 721, 4 S. W. 689; Potter v. Sharp, 24 Hun, 179;re Haute & L. R. Co. v. Sherwood, 132 Ind.

abatement has been made and accepted is not conclusive, but the real transaction is always open to explanation and contradiction by parol. McFadden v. Missouri P. R. Co. 92 Mo. 343, 1 Am. St. Rep. 721, 4 S. W. 689; St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397, 7 Am. St. Rep. 104, 8 S. W. 134; Georgia R. & Bkg. Co. v. Reid, 91 Ga. 377, 17 S. E. 934; Baltimore & O. S. W. R. Co. v. Crawford, 65 Ill. App. 113; Kansas P. R. Co. v. Reynolds, 17 Kan. 251; Missouri, K. & T. R. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565. Applying these principles to the averments of the complaint that there was no choice of rates, and no reduction in the usual freight charges, and no consideration for a waiver of appellants' legal liability, it follows, if these things are established, there was no valid contract to accept a qualified responsibility from appellants. It is contended on the third paragraph that it is bad because it shows that appellee stipulated to inspect and select his own car, and to send an attendant with the stock, and to release appellants from all liability for damages to the animals, including those resulting from a defective condition of the car, and that, in accordance with the stipulation, he did inspect and select his own car, and that his failure to send a man to care for the stock precludes his recovery for their injury. Again, assuming the special contract as valid (which it was not, as we have seen), appellants extend their argument further than the law will warrant. If, as averred, appellants knew at the time the car selected was unsound and unsafe, and appellee failed to discover such unsoundness by reason of the defects being hidden; and the car appeared to him to be sound and safe, and he believed it to be so, his proof of these facts would charge appellants with the damages accruing therefrom. Freeing themselves by contract from their usual common-law duties did not change the true character of their employment. They were public carriers still. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Ter

129, 17 L. R. A. 339, 32 Am. St. Rep. 239, | action is permissible, and should not be re31 N. E. 781. And having accepted appel- garded as anticipating a defense, within the lee's money for the transportation of his rule. Latta v. Miller, 109 Ind. 302, 306, 10 horses to Indianapolis, they were bound to N. E. 100; Hunt v. State, 93 Ind. 311, 316. furnish a car suitable for the purpose. With But in this case we are not called upon to the knowledge that the car was unfit and define the limits of this rule of pleading. unsafe, they could not rest upon appellee's For it is undoubtedly true that a complaint agreement, induced by safe, but false, ap- which contains facts sufficient to constitute pearances, to take the risk. The duty to a cause of action is good on demurrer, furnish a proper car rests upon the carrier, though it also contains additional immateand not upon the shipper; and the failure rial matter. So the mere fact that a comto discharge this duty is negligence, from plaint otherwise good sets out the defense the consequences of which the carrier is not does not make the pleading bad, if it goes permitted to free itself by contract or other- far enough to exhibit sufficient matter in wise. Insurance Co. v. Lake Erie & W. R. avoidance. Morgan v. Lake Shore & M. S. Co. 152 Ind. 333, 53 N. E. 382; Ogdensburg R. Co. 130 Ind. 101, 28 N. E. 548; Latta & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. v. Miller, 109 Ind. 302, 306, 10 N. E. 100; ed. 827; Chicago & A. R. Co. v. Davis, 159 Chicago, C. & L. R. Co. v. West, 37 Ind. 211. Ill. 53, 50 Am. St. Rep. 143, 42 N. E. 382; We conclude, therefore, that the facts set Western R. Co. v. Harwell, 91 la. 340, 8 forth in the second and third paragraphs of So. 649. Furthermore, it is alleged that the complaint, and which are admitted to be the floor of the car, by reason of being de- true by the demurrers, show that the precayed, weak, and unsound, and known to tended special contract of shipment was be so by appellants, broke, and the horses void, and left the transaction standing prewere injured by falling though the hole. If cisely as if no contract, other than the one this was the cause of their injury, and it implied by law, had been attempted by the is so admitted by the demurrer,-then the parties. So it cannot be accurately said that animals were not injured for want of feed, the paragraphs were founded on a written water, or care in transit, which appellee contract, for no such thing existed in this agreed to bestow, and appellants would be case. Each of the paragraphs avers the liable for their negligence in furnishing an public character of appellants, a delivery unfit car. Terre Haute & L. R. Co. v. Sher- to them of the horses for transportation, wood, 132 Ind. 129, 136, 17 L. R. A. 339, 32 payment of the freight, negligence in furAm. St. Rep. 239, 31 N. E. 781. nishing an unsuitable car, and injury and damages thereby. These facts constitute a good cause of action, and the demurrers were properly overruled. As independent pleadings, the latter paragraphs are not invalid because the same things are alleged in the first paragraph.

We now return to appellants' insistance that appellee's right of recovery is confined to the bill of lading under which the horses were shipped, and which they assert is the foundation of the second and third paragraphs of complaint. We recognize the familiar rule of pleading that a plaintiff should not set forth in his complaint matters that should come more properly from the other side; that a plaintiff should not anticipate the defense, but be content with making his own case, and leave the defen ant to choose his own line of defense. Stephen, Pl. 350; Bliss, Code Pl. § 200. It is also elementary that a plaintiff having suffered an actionable injury must aver in his complaint all the facts essential to a disclosure of his right of recovery, or suffer a nonsuit. In brief, it may be affirmed that a complaint good at common law, or under the Code, must contain a clear statement of all the facts necessary for the plaintiff to prove in the first instance, under an answer of general denial, to show that he is entitled to judgment. And under the operation of this rule, it has been held in some cases, where the relation of the facts seems to require it, that a necessary and incidental disclosure of a defense in stating a cause of

2. Appellants assail the action of the court in the giving of certain instructions of its own motion, and in refusing to give certain instructions requested by them. The inst uctions are not brought into the record by bill of exceptions, but are attempted to be brought in by order of the court; the only reference to the subject of instructions being the following recital of the clerk, and noted copy of entry: "Come again the parties, .. and the plaintiff and defendants each file their request for instructions, and, the argument being heard, the court instructs the jury, which retires to consult of the verdict; . . and the instructions asked and refused and the exceptions noted thereon, and the instructions given by the court of its own motion, are now filed and made a part of the record herein by order of the court, and are as follows, viz." It will be observed that the clerk informs us that two classes of instructions, namely, those "asked and refused," and

KANSAS SUPREME COURT.

Martha A. HIER, Admrx., etc., of John D. 2. If the cashier of a bank, without Hier, Deceased, Plff. in Err.,

were beneficial to the corporation, but is | tratrix; she had a right, when Harpster attempting to repudiate those acts which paid her notes by entering the same as a he conceives were to its detriment. The re- deposit upon her passbook, to presume that ceiver stands in the shoes of the bank. He he was acting within the scope of his auhas no greater rights in this case than the thority, that he had on deposit to his credit bank itself would have. in the bank funds sufficient out of which to make these payments, or that he had a credit with the bank which enabled him to use its funds for this purpose. No other duty devolved upon her, and she acted as any ordinarily careful and prudent person would have acted under the same circumstances.

Zane, Banks & Banking, 584; Union Nat. Bank v. Bank of Kansas City, 136 U. S. 223, 34 L. ed. 341, 10 Sup. Ct. Rep. 1013; 5 Thomp. Corp. §§ 6917, 6918; 2 Am. & Eng. Enc. Law, p. 849.

Harpster was in the habit of paying his individual debts presented to him at the bark, either by giving his creditor cash which belonged to the bank and charging himself up with the same, or, where the amount of the claim was large, entering the payment as a deposit on the passbook of the customer.

In response to Mrs. Hier's demand for the payment of the notes due the estate of which she was administratrix, Harpster, the cashier, asked permission to pay two of them, and that she let the other one run for a while. She gave her consent to this, and asked for the payment of the notes in currency. Harpster represented to her the danger of carrying so much money, and sug. gested giving her credit on her passbook for the amount of the payments, and that she make her intended disbursements by check, instead of paying them in cash. If it was ultra vires for him to indorse these payments on her passbook because he had no funds in the bank, then it would have been ultra vires for him to have taken the money of the bank and turned that over to her.

Mrs. Hier did not know anything to the contrary than that Harpster was paying his own debt with his own funds. Was it obligatory upon her to ask Harpster to permit her to come in behind the railing and examine the books and count the cash in order to satisfy herself that he was not wrongfully using the bank's funds, or was she required to hunt up the president and the members of the board of directors and inquire of them if Harpster was acting within the scope of his authority? Had she pursued the latter course, she would probably have been told by the president and board of directors that Harpster had the right to do as he pleased, for that was what he did do, without any assistance or attention from any of the other officers.

When a bank places an officer at the window where he transacts its business with the public, it tells the world, in effect, that this man is trustworthy and reliable, that he will act within the scope of his authority, and the public is safe in dealing with him. If he transcends his authority, turns rascal, and begins to cheat his bank, in all equity and good conscience the bank should suffer the loss rather than the customer, who is compelled to deal with him.

Goshen Nat. Bank v. State, 141 N. Y. 379, 36 N. E. 316; Phillips v. Mercantile Nat. Bank, 140 N. Y. 556, 23 L. R. A. 584, 37 Am. St. Rep. 596, 35 N. E. 982; L'Herbette v. Pittsfield Nat. Bank, 162 Mass. 137, 44 Am. St. Rep. 354, 38 N. E. 368; Abbott, Trial Ev. p. 340; Zane, Banks & Banking, pp. 146, 151; 2 Am. & Eng. Enc. Law, p. 102; Stephens v. Board of Education, 79 N. Y. 183, 35 Am. Rep. 511; Lamson v. Beard, 45 L. R. A. 822, 36 C. C. A. 56, 94 Fed. 30.

Defendant in error is estopped from claiming any benefit on account of the wrongful act of the cashier, or the wrongful acts of the other officers of the bank.

A bank, by course of dealing, can commit the whole corporate authority to one particular officer.

Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 36 Am. Rep. 582; Davenport v. Stone, 104 Mich. 521, 53 Am. St. Rep. 467, 62 N. W. 722; City Nat. Bank v. National Park Bank, 32 Hun, 105; Cox v. Robinson, 27 C. C. A. 120, 48 U. S. App. 388, 82 Fed. 277; Armstrong v. Cache Valley Land & Canal Co. 14 Utah, 450, 48 Pac. 690; National Bank of Commerce v. First Nat. Bank, 10 C. C. A. 87, 27 U. S. App. 88, 61 Fed. 809; Carpy v. Dowdell, 115 Cal. 677, 47 Pac. 695; Caldwell v. National Mohawk Valley Bank, 64 Barb. 333; Martin v. Webb, 110 U. S. The failure to enter this deposit upon the 7, 28 L. ed. 49, 3 Sup. Ct. Rep. 428; Merbank's books is at best merely evidence of cantile Bank v. McCarthy, 7 Mo. App. 318; an intention upon Harpster's part to de- First Nat. Bank v. Stone, 106 Mich. 367, fraud his bank. As between Mrs. Hier and 64 N. W. 487; Winton v. Little, 94 Pa. the bank, the bank should lose. In present- 64; 4 Thomp. Corp. § 4620, p. 3456; 1 Moraing her notes to Harpster for payment at wetz, Priv. Corp. § 509; Washington Sav. the bank during banking hours she was do- Bank v. Butchers' & D. Bank, 107 Mo. 144, ing what the law required of her as adminis- ·28 Am. St. Rep. 405, 17 S. W. 644; Libby

v. Union Nat. Bank, 99 Ill. 622; First Nat. Bank v. Kimberland, 16 W. Va. 555; Zane, Banks & Banking, § 105; First Nat. Bank v. Graham, 79 Pa. 106, 21 Am. Rep. 49.

The bank is estopped, not only by the acts of its cashier, but by the acts of its other officers, from asserting in this action that the cashier was exceeding his authority in entering up these items of credit upon Mrs. Hier's passbook.

Messrs. A. L. Perry and S. M. Brewster, for defendant in error:

A passbook is merely a receipt, and may be explained; it is only evidence of a transaction to the same extent as a receipt.

Talcott v. First Nat. Bank, 53 Kan. 483, 24 L. R. A. 737, 36 Pac. 1066; Williams v. Dorrier, 135 Pa. 445, 19 Atl. 1024; Harrison v. Henderson (Kan.) 62 L. R. A. 760, 72 Pac. 875; Harrison v. Henderson (Kan.) 72 Pac. 878.

A partner cannot pay his individual preexisting indebtedness with the funds of the firm, or by pledging the credit of the firm. Williams v. Barnett, 10 Kan. 455; Rogers

Gowen Marble Co. v. Tarrant, 73 Ill. 608; St. Louis v. St. Louis Gaslight Co. 70 Mo. 69; Zabriskie v. Cleveland, C. & C. R. Co. 23 How. 381-400, 16 L. ed. 488-498; Seeley v. San José Independent Mill & Lumber Co. 59 Cal. 22; Electrical Supply Co. v. Jersey v. Batchelor, 12 Pet. 229, 9 L. ed. 1063; City Electric Light Co. 4 N. Y. S. R. 516; | Cadwallader v. Kroesen, 22 Md. 200; Dob v. Burrows v. Smith, 10 N. Y. 550; Lyndon Halsey, 16 Johns. 34, 8 Am. Dec. 293; Mill Co. v. Lyndon Literary & Biblical Inst. Gansevoort v. Williams, 14 Wend. 133; Dav63 Vt. 581, 25 Am. St. Rep. 783, 22 Atl. cnport v. Runlett, 3 N. H. 386; Pierce v. 575; Brown v. Wright, 25 Mo. App. 54; Pass, 1 Port. (Ala.) 232; Morse v. MassaKneeland v. Gilman, 24 Wis. 39; New Eng-chusetts Nat. Bank, Holmes, 209, Fed. Cas. land Car Spring Co. v. Union India Rubber No. 9,857; Bank of United States v. Dunn, Co. 4 Blatchf. 1, Fed. Cas. No. 10,153; 6 Pet. 51, 8 L. ed. 316; Bank of Metropolis Wetherbee v. Fitch, 117 Ill. 67, 7 N. E. v. Jones, 8 Pet. 16, 8 L. ed. 850. 513; Holden v. Whiting, 29 Fed. 881; Whiting v. Wellington, 10 Fed. 810; Com. v. Reading Sav. Bank, 137 Mass. 433; Holden v. Phelps, 141 Mass. 456, 5 N. E. 815.

The account between the administratrix and the bank is an account stated.

American Nat. Bank v. Presnall, 58 Kan. 69, 48 Pac. 556; Talcott v. First National Bank, 53 Kan. 480, 24 L. R. A. 737, 36 Pac. 1066; Myers v. Kiowa County, 60 Kan. 189, 56 Pac. 11.

The cashier's habit of paying his individual indebtedness out of the funds of the bank had, through long usage, become a custom of the bank, and was notice to the world that said bank sanctioned the practice, and that the cashier had with said bank such arrangements as would enable him to continue such practice.

A cashier cannot bind his bank by making a contract of the bank in his individual interests.

Bank of New York Nat. Bkg. Asso. v. American Dock & Trust Co. 143 N. Y. 559, 38 N. E. 713; Hanover Nat. Bank v. American Dock & Trust Co. 148 N. Y. 612, 51 Am. St. Rep. 721, 43 N. E. 72; Anderson v. Kissam, 35 Fed. 699; Chrystie v. Foster, 9 C. C. A. 606, 26 U. S. App. 67, 61 Fed. 551; Lamson v. Beard, 45 L. R. A. 822, 36 C. C. A. 56, 94 Fed. 30; West St. Louis Sav. Bank v. Shawnee County Bank, 95 U. S. 557, 24 L. ed. 490; Wilson v. Metropolitan Elev. R. Co. 120 N. Y. 145, 17 Am. St. Rep. 625, 24 N. E. 384; Claflin v. Farmers' & C. Bank, 25 N. Y. 293; United States v. City Bank, 21 How. 356, 16 L. ed. 130; Dowd v. Stephenson, 105 N. C. 467, 10 S. E. 1101;

4 Thomp. Corp. § 4746; Mercantile Bank Chrystie v. Foster, 9 C. C. A. 606, 26 U. S. v. McCarthy, 7 Mo. App. 318.

Mrs. Hier had the right to presume that the entries made in her passbook were correctly made, and were identically the same as the entries which appeared in her account on the other books of the bank.

Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 657. A passbook which has been balanced becomes an account stated between the parties after a reasonable time has been allowed for its examination, and it cannot be subsequently opened up for investigation, even for fraud er mistake, where one of the parties has in good faith acted upon it as an account stated, and would be prejudiced in his rights by any change made therein.

1 Am. & Eng. Enc. Law, 2d ed. p. 437.

App. 67, 61 Fed. 551; Asher v. Sutton, 31 Kan. 286, 1 Pac. 535; Greenawalt v. Wilson, 52 Kan. 109, 34 Pac. 403; First Nat. Bank v. Drake, 29 Kan. 311, 44 Am. Rep. 646; Campbell v. Manufacturers' Nat. Bank, 67 N. J. L. 301, 91 Am. St. Rep. 438, 51 Atl. 497.

tion had the power originally to do a cerEstoppel only applies when the corporatain act. It then can ratify that act when done by some unauthorized person acting, or claiming to act, for the corporation. The directors of the Wathena State Bank could only ratify the unauthorized acts of Harpster when they were such acts as they could have done.

First Nat. Bank v. Drake, 29 Kan. 321, 44 Am. Rep. 646; El Capitan Land & Cattle Co. v. Boston-Kansas City Cattle Loan Co.