(Supreme Court of Kansas. Oct. 11, 1902.)

WITNESS-CROSS-EXAMINATION-DISCRE

TION OF COURT-REVIEW.

1. The latitude permissible in the cross-examination of a party as a witness in his own behalf upon collateral matters tending to test his veracity or to affect his credibility as a witness, and the like, or upon matters directly connected with the subject of his examination in chief, which tends to destroy or modify the inference which the jury would necessarily draw from such direct testimony standing alone unqualified and unexplained, rests in the sound discretion of the trial court, and depends upon the appearance and conduct of the witness and the nature and circumstances of the case. The exercise of this discretion will not be controlled by this court except in case of abuse of discretion working injury to the party complaining.

(Syllabus by the Court.)

In banc. Error from district court, Labette county; A. H. Skidmore, Judge.

Action by Henry Bassett against T. M. Glass. Judgment for defendant, and plaintiff brings error. Affirmed.

Burton & Clark and A. D. Neale, for plaintiff in error. Francis M. Brady, for defendant in error.

POLLOCK, J. Action by Bassett against Glass to recover a reward of $500, alleged to have been offered for the arrest and conviction of the person or persons guilty of the murder of the son of defendant at the town of Welch, in the Indian Territory. It appears from the record that one Melvin Lovelace attempted to rob young Glass. Glass resisted, and Lovelace murdered him. Prior to the murder plaintiff had formed the acquaintance and was intimate in his relations with Lovelace at Chetopa. Lovelace informed plaintiff he was going to Welch to commit the crime of robbery, and solicited plaintiff to go with him and participate in the commission of the crime. After the murder plaintiff imparted this and other information to the officers, subscribed and swore to a complaint against Lovelace, and appeared and testified at the trial at which Lovelace was convicted of the murder. The record further shows that prior to the bringing of this action plaintiff had brought another action against defendant for this reward. In that action plaintiff's counsel had filed a notice of attorneys' lien. Shortly before that action was to be tried, plaintiff had received from one Hazen, a son-in-law of defendant, the sum of $125, had left the country, and the action was dismissed. Thereupon coun

sel for plaintiff in that action commenced their action against defendant to recover the amount of their attorney's fees, in which action plaintiff gave his deposition, testifying he had received the $125 from Hazen to leave the country and dismiss the action. The answer filed in this action was a general denial. Upon the trial, counsel for defendant were permitted, in cross-examination of plaintiff as a witness in his own behalf, to interrogate him upon his former testimony that he had received $125 from Hazen for the purpose of leaving the country and dismissing the prior action; and also to show his acquaintance and relation with Lovelace prior to the murder, for the purpose of affecting his credibility as a witness, and as tending to show his knowledge of and participation in the crime out of which the claimed reward arose. Verdict and judgment for defendant. Plaintiff brings error.

The principal proposition relied upon by counsel for plaintiff in error to work a reversal of this judgment is that defendant was permitted, by way of cross-examination of plaintiff, under a general denial, to show payment of the reward offered; that payment is an affirmative defense, which must be pleaded; hence the cross-examination was error. Was such cross-examination extended to limits so improper as to be erroneous, and compel a reversal of the judgment? We think not. Conceding payment to be an af firmative defense, which must be specially pleaded, we do not think the cross-examination of which complaint is made was for the purpose of showing payment. The real question is, was the cross-examination so highly improper and prejudicial as to work reversible error? The form of the pleadings does not affect this question. It must be remembered the witness under cross-examination was the plaintiff, testifying in his own be half in an action for a reward. In his direct examination plaintiff gave testimony tending to show the offer of reward, his acquaintance and relations with Lovelace prior to and after the homicide, and the part he had taken in giving information to the officers and securing the conviction of Lovelace; the nat ural inference to be drawn from this testimony being that plaintiff in good faith was seeking the recovery of a reward justly due him in bringing the murderer to justice. The testimony elicited from the plaintiff upon cross-examination tended to show his intimate acquaintance and relations with Lovelace prior to the commission of the crime; that he had kept secret the proposed robbery of Lovelace at Welch until after the murder, and an attempt to show that he had brought a prior action for the reward, the dismissal of such action, his acceptance of the sum of $125 for the purpose of dismissal, and his leaving the country, and the giving of his deposition in a prior case, in which he had testified to such facts. The extent to which a witness may be cross-examined up

in the motion. Afterwards the defendant appeared specially and moved the court to dismiss the action for the reason that it had no jurisdiction over him. This motion was sustained, and the case dismissed. The plaintiff in error complains of this judgment. We are of the opinion that the court below erred in dismissing the action. A defendant in an action may appear specially to challenge the jurisdiction of the court, and such appearance, when made exclusively for that purpose, will not give the court jurisdiction. When the defendant challenged the right of plaintiff in error to amend his affidavit in attachment, he was not presenting a jurisdictional question. It is said in Gorham v. Tanquerry, 58 Kan. 233, 48 Pac. 916: "The defendants, upon whom there had been no valid service, appeared and attacked the jurisdiction of the court, and at the same time asked that an attachment which had been levied upon their property should be discharged, upon the ground that the affidavit of plaintiff made to procure the attachment was insufficient. Held that, having appeared for other purposes and presented other considerations than those of jurisdiction, they made a general appearance, and gave the court general jurisdiction over them." In that case the defendant appeared and contested the sufficiency of the attachment affidavit. In this case he appeared and contested the right of plaintiff to amend such affidavit. Neither involved a jurisdictional question. Both raised questions other than those of jurisdiction. The appearance of the defendant in this case to contest the right of the plaintiff to amend his affidavit in attachment was such a voluntary appearance in the action as gave the court general jurisdiction over him. The judgment of the court below in dismissing the action was therefore

erroneous.

The judgment is reversed, and the cause remanded for further proceeding. All the justices concurring.

(65 Kan. 459)

WILCOX v. EADIE. (Supreme Court of Kansas. Oct. 11, 1902.) LIMITATIONS-ACTION ON NOTE-OPTION ON DEFAULT-AGENCY-EVIDENCE.

1. When a promissory note, and trust deed given as security, contain an option authorizing the owner to declare the entire debt due upon default in the payment of interest, and the exercise of this option by an agent, before the maturity of the paper, is relied upon to support a plea of the bar of the statute of limitations, it must be shown, to establish the defense, that the agent was authorized to declare the paper due before maturity; and proof that such agent received payments of interest, and wrote a letter attempting to declare the option, is not sufficient evidence of authority. (Syllabus by the Court.)

In banc. Error from district court, Greeley county; J. E. Andrews, Judge.

Action by A. C. Wilcox against Robert

Eadie. Judgment for defendant, and plaintiff brings error. Reversed.

W. N. Glenn and Wheeler & Switzer, for plaintiff in error. V. H. Grinstead, for defendant in error.

POLLOCK, J. January 1, 1888, Robert Eadie made to A. C. Wilcox his promissory note in the sum of $350, due five years from date, payable at the Girard National Bank, Philadelphia, Pa., secured by trust deed upon property in Greeley county, in which one E. Heliker, of the McKinley & Heliker Investment Company, of McPherson, Kan., was nominated as trustee. This note contains the following stipulation: "If default be made in the payment of any interest note, or any portion thereof, for the space of ten days after the same becomes due and payable, or in case of a failure to perform any of the covenants contained in the trust deed securing this note, then all of said principal and interest notes, less interest for unexpired time, shall, at the option of the owner and holder of this note, become at once due and payable, without further notice." The same stipulation, in substance, is contained in the trust deed. Thereafter, on November 20, 1889, Robert Eadie conveyed the property, subject to the incumbrance, to his brother, Thomas Eadie, who subsequently thereto conveyed to one A. B. Kelley. Interest was paid on the loan to January 1, 1890, and was paid at the office of the McKinley & Heliker Investment Company. This action was brought December 31, 1897, to recover upon the note. Defendant interposed the bar of the statute of limitations. There were verdict, special findings, and judgment thereon for defendant. Proceedings in error were prosecuted in the court of appeals, which resulted in an affirmance of the judgment rendered. The case is now here for review.

A motion has been interposed here for an order dismissing this case for want of jurisdiction. The motion is not well taken, and is therefore overruled.

From the statement above made, it will be seen the action was not barred when commenced, as shown upon the face of the papers. It is earnestly contended by counsel for plaintiff in error that no competent evidence was offered to establish the plea of the statute. In support of this plea, defendant offered and was permitted to show the payments of interest upon the loan at the office of the McKinley & Heliker Investment Company; the trust deed containing, in substance, the stipulation above quoted; and, in order to make such stipulation operative, and se: in motion the running of the statute of limitations, the receipt of a letter by the brother of defendant, in January, 1891, and its contents, calling attention to the default in the payment of interest, referring to the stipulation contained in the note and trust deed, and declaring the entire amount due and pay

able, according to the terms of the option. This letter was not produced at the trial; Thomas Eadie, however, testifying he had made search for it; that he was unable to find it, and believed it either lost or destroyed. There was also some feeble testimony tending to show, and the jury found, this letter was written by one Chas. Zilly, treasurer of the McKinley & Heliker Investment Company. Plaintiff, who at the time lived in McPherson, Kan., testified in the most positive terms he at no time, either directly or indirectly, either wrote or authorized the writing of any such letter, or the exercise of the option contained in the note and trust deed. Zilly, a witness for defendant, testified he was at the time treasurer of the McKinley & Heliker Investment Company; that he had the books of that company before him, which contained a record of the Eadle loan; that it was the custom of the company to keep copies of all letters written; that the letter book contained no copy of such letter as the one Eadie claimed to have received; that it was not the custom of the company to exercise the option; that he had no recollection of such letter having been written; and that he would have written such letter if any had been sent. Upon this testimony, it is the contention of counsel for plaintiff in error: (1) The genuineness of the letter was not sufficiently established to permit proof of its contents in evidence; (2) conceding the letter to be genuine, and to have been written by Zilly, and the contents as stated, then the evidence falls to show any authority on the part of Zilly, as treasurer of the investment company, as agent of plaintiff, or otherwise, to bind plaintiff in the exercise of this option.

Without commenting upon or deciding the first proposition stated, we shall refer to the second alone, as its determination is of vital importance in the case. And in this consideration let it be conceded Zilly, as treasurer of the investment company, wrote the letter in question to Thomas Eadie, and that the objections thereto and to the proof of its contents were properly overruled. Let it further be conceded that Zilly, or the investment company which he represented, was the agent of plaintiff for the purpose of receiving payment and remitting to plaintiff❘ the interest upon the loan, and it is impossible to claim more for the evidence found in the record or the special findings of the jury. And yet we think the second contention made is fatal to the recovery in this case. It will be remembered, this note, by its terms, did not mature until January 1, 1893 The letter relied upon as declaring the option and setting in motion the statute of limitations is found to have been written by Zilly three years before maturity of the note. The rule as to the proof of the fact of agency, and the power of an agent to bind his principal, is stated by Mr. Mechem as follows: "As has been seen, the law in

dulges in no bare presumptions that an agency exists; it must be proved or presumed from facts; that the agent cannot establish his own authority, either by his representations, or by assuming to exercise it; that an authority cannot be established by mere rumor or general reputation; that even a general authority is not an unlimited one; and that every authority must find its ultimate source in some act of the principal. Persons dealing with an assumed agent, therefore, whether the assumed agency be a general or a special one, are bound, at their peril, to ascertain not only the fact of the agency, but the extent of the authority; and, in case either is controverted, the burden of proof is upon them to establish it." Mechem, Ag. § 276. In Lester v. Snyder (Colo. App.) 55 Pac. 613, it is said: "Although a mortgagee has authorized an agent to collect interest, and to receive payment of the principal when due, the agency does not extend to receiving payment of principal before maturity." Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Doubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502; Schemerhorn v. Farley, 58 Hun, 66, 11 N. Y. Supp. 466; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302. Applying these principles to the case at bar, we find nothing in this record which would in any manner either authorize Zilly to collect the note in suit before maturity, or empower him to exercise the option contained in the note and trust deed, of declaring the principal sum due and payable three years before the date of maturity stipulated in the note for the purpose of collection, or setting in motion the running of the statute of limitations. The effect of this option, when declared, being to entirely change and supersede the contract existing between the parties as expressed in the note and trust deed, it must be shown Zilly was authorized by the owner to declare the option, before his act in so doing will bind plaintiff. The entire absence of proof of any authority on the part of Zilly to exercise the option contained in the note and trust deed for the owner and holder renders a reversal of the judgment imperative.

It follows, the decision of the court of appeals and the judgment of the trial court must be reversed. All the justices concurring.

(65 Kan. 505)

ALEXANDER et al. v. LOGAN et al. (Supreme Court of Kansas. Oct. 11, 1902.)

CHATTEL MORTGAGE-VALIDITY-EXEMPT

PROPERTY.

1. A chattel mortgage upon personal prop erty exempt by law to resident heads of families, not given with the joint consent of both husband and wife, when that relation exists, and not executed by both, is void. (Syllabus by the Court.)

In banc. Error from district court, Paw nee county; J. E. Andrews, Judge.

Action by T. L. Logan and others against

J. A. Rhodes and others. John Alexander interpleaded. Judgment for plaintiffs, and John Alexander and E. A. Rhodes bring error. Affirmed as to Alexander and reversed as to Rhodes.

H. F. Mason and W. H. Vernon, for plaintiffs in error. G. P. Cline and H. S. Rogers, for defendants in error.

GREENE, J. T. L. Logan, as mortgagee, replevined from J. A. and E. A. Rhodes certain property covered by a mortgage purporting to have been signed by J. A. and E. A. Rhodes, husband and wife. E. A. Rhodes answered, denying the execution of the mortgage, and alleging that a part of the mortgaged property was exempt, and that as to such property the mortgage was void. John Alexander interpleaded, claiming the remainder of the property. At the trial a general verdict was returned for the plaintiff, and judgment rendered thereon, to reverse which John Alexander and E. A. Rhodes prosecute this proceeding.

It is urged that the court erred in the admission of certain testimony given by B. W. Reed and the plaintiff below. The testimony was hearsay. We are of the opinion, however, that, as applied to the issues in this case, it was not sufficiently important or prejudicial to justify a reversal of the judgment.

On the part of E. A. Rhodes complaint is made that the court erred in giving instruction No. 9. It reads: "No mortgage of exempt personal property is of any force unless the same is given with the joint consent of husband and wife, where that relation exists. However, it is not necessary that this consent should be evidenced by writing. It is enough to bind both husband and wife if the husband executed the mortgage with the knowledge and consent of the wife, or if she knew the mortgage was to be given by the husband to secure Logan, and remained silent till Logan parted with his money. Or if, after the mortgage was executed and delivered, the wife received knowledge of its existence, and failed to make objection within a reasonable time, then this is proper evidence that she adopted and ratified the act of the husband in giving the mortgage. You must take into consideration all the circumstances surrounding the giving of the mortgage, the acts of the parties in showing the property, the conversations at the time, and all the antecedent facts connected with the loaning of the money. If, from this evidence, you reach the conclusion that Mrs. Rhodes knew Logan expected to take the mortgage, and that her husband was going to execute the mortgage, and she kept silent; or if she afterwards learned that the mortgage had been executed, and had opportunity to notify Logan that she had not authorized the same, and did not expect to be bound thereby, and failed to do so in a reasonable time,-then it

would be your duty to find for the plaintiff as against defendant Rhodes and wife.” This instruction does not state the law correctly, and was prejudicial to the contentions of Mrs. Rhodes. A chattel mortgage given on exempt personal property executed by the husband alone is void, notwithstanding the wife knew at the time that her husband intended giving the mortgage, and that the mortgagee would accept it, and made no objections thereto, or that she afterwards learned that the mortgage had been given and had an opportunity to and did not inform the mortgagee that she had not signed the mortgage, and would not be bound thereby; nor will such conduct on her part estop her to deny its execution. The statute in force at the time this mortgage was executed is section 3, c. 120, Gen. St. 1897: "It shall be unlawful for either husband or wife (where that relation exists) to create any lien by chattel mortgage or otherwise upon any personal property owned by either or both of them, and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this state, without the joint consent of both husband and wife; and from and after the time when this act shall take effect (25th May 1889) no such mortgage of personal property shall be valid unless executed by both husband and wife." This statute declares that it shall be unlawful for either husband or wife to create any lien, by mortgage or otherwise, upon exempt personal property, without the joint consent of both, and that no such mortgage shall be valid unless executed by both. There are two precedent conditions requisite to a valid chattel mortgage on exempt personal property when the marriage relation exists: (1) It must have been given with the joint consent of both husband and wife; (2) it must be executed by both. Knowledge and acquiescence on the part of one are not sufficient; there must be an active participation by both. It is not necessary, however, that both or either should actually perform the physical act of signing the instrument. Either may authorize the other, or some third party, to sign it for him or her; and, if so signed, would be effective to bind such party.

It appears from the evidence that Alexander is Mrs. Rhodes' brother; that Rhodes and wife commenced operating a hotel at Syracuse in April, 1899; that the furniture claimed by Alexander was purchased and placed in the hotel by him, and that it was intended either as a present or a loan to Rhodes and wife, and used thereafter by them as though it was their furniture. This furniture was insured by Rhodes in his own name, and when he and his wife removed from Syracuse to Larned it was shipped by him in his own name to Larned, and there placed in the hotel with his property, and used in conducting the hotel. While at