known as a "spotter," who induced persons to sell intoxicating liquors for the purpose of prosecuting them. The state did not rely on the testimony of Moore for a conviction. Under no rule of evidence was the testimony excluded competent. We have given consideration to all the other errors assigned, including the misconduct of the jury, and find nothing which would warrant a reversal of the judgment.

The judgment of the court below will be affirmed.

(65 Kan. 739)

DIXON v. CASTER.

(Supreme Court of Kansas. Dec. 6, 1902.)

RES JUDICATA-PLEADING-ACTION FOR RENT. 1. A plea of res adjudicata, which exemplifies the pleadings, findings of fact, conclusions of law, and judgment in the former action, shows thereby the issues and facts determined in such suit, and in whose favor they were determined, without further allegations for that purpose.

2. In an action to recover rent stipulated for in a written lease for two years, a defense that a substitution of other property for that described in the written instrument avoided the lease was adjudged invalid. In a subsequent suit between the same parties for installments of rent accruing under the lease after the rendition of the former judgment, the defendant claimed that the substitution of property previously litigated operated to change the contract from one in writing to one in parol, unenforceable under the statute of frauds. Held, the defense was res adjudicata. The facts having been urged in the first suit, all the legal consequences flowing from them are deemed to have been there determined.

(Syllabus by the Court.)

In banc. Error from district court, Geary county; O. L. Moore, Judge.

Action by J. U. G. Caster against Thomas Dixon, Jr. Judgment for plaintiff. Defendant brings error. Affirmed.

J. U. G. Caster commenced an action in the district court of Geary county against Thomas Dixon, Jr., to recover for installments of rent claimed to be due him upon a written lease for two years of real and personal property. The lease described a part of the personal property as "one ten horse power, Gem No. 2, automatic engine; one twelve horse power water-tube boiler,"-and described the real estate as "lot number two (2) in block number eleven (11) of Callen's addition to the city of Junction City, Kansas, together with the laundry plant thereon," etc. An amendment to the petition alleged a mistake in the name of the addition to Junction City in which the lot and block mentioned were located, and gave the true designation as Cuddy's addition to the city of Junction City. No reformation of the instrument was prayed for. Dixon answered to the effect that the contract for the personal property actually leased to him was not in writing, and hence was repugnant to the statute of frauds, and that, because the personal property actually described in the

lease had been replevied from him by persons claiming the same as paramount owners, the lease had been abrogated and determined. Caster replied, denying the new matter of the answer, and further set up a plea of former adjudication in a suit for installments of rent upon the same lease anterior to those set out in the petition. The pleadings, findings of fact, conclusions of law, and judgment in the former suit were all exemplified, with appropriate allegations concerning them and their relation to the pending suit, with the following exceptions: It was not stated in express words that the issues in the former suit were terminated in favor of Caster, and in alleging the identity of the defenses in the two cases the following language was used: "All of the defenses set up in the answer herein were pleaded and determined in said cause, or might or should have been therein pleaded or determined." The material portions of the findings of fact and conclusions of law made on the first trial, and embodied in the reply, are as follows: "On the 1st day of June, 1899, J. U. G. Caster, plaintiff, leased to Thomas Dixon, Jr., defendant, certain property, real and personal, in Junction City, for the term of two years from that date; the lessee having the option of buying the property at any time within ninety days from the beginning of the term by the payment of the sum of one thousand dollars, less any rent that may have been paid up to the time of the exercise of such option by the lessee. The property, as described in said lease, is described as follows: 'Lot number two (2) in block number eleven (11) of Callen's addition to the city of Junction City, Kansas, together with the laundry plant thereon, and the machinery, fixtures, and things belonging to said laundry, as enumerated in Schedule A, attached hereto and made a part hereof.' The property described in the schedule consists of the automatic engine, and the fixtures thereto, etc., 'together with the sundry necessary attachments to the above machinery and fixtures.' As rent, the lessee was to pay during the term of two years the sum of forty dollars per month, commencing on June 1, 1899, and on the 1st day of each of the next succeeding twenty-three months. Some time in July or August, 1899, the lessee erected and equipped a new laundry in another part of the city; and as soon as it was completed he closed down the laundry leased from the plaintiff, and removed a part of the fixtures. tools, and property described in said Schedule A to his said new laundry, and has ever since retained the same, and used the same in connection with the running of said new laundry. After the closing down of plaintiff's laundry by the lessee, the creditors of the plaintiff, under some legal proceedings, took from the said leased laundry the engine and some of its attachments, as described in said Schedule A. Immediately after the creditors of the plaintiff took said engine

and fixtures from said laundry as aforesaid, the plaintiff consulted the defendant concerning the substitution of a new engine in said laundry. Suggestion as to the character and construction of a new engine was made by defendant. The plaintiff immediately caused a new engine to be substituted for the one taken by his creditors, and the same was placed in said laundry and ready for use on September 20, 1899, which was about one month from the time the other engine had been taken out. From the time the engine was taken out of the laundry by plaintiff's creditors, up to the time the new engine was placed and ready for use, the lessee gave no notice to plaintiff that he (the lessee) had or intended to claim a forfeiture or termination of the terms of the lease, or any eviction from the premises, by reason of the removal of said engine from said laundry. Subsequent to the replacement of said engine and fixtures the defendant informed the plaintiff that he claimed a forfeiture of the lease, and that he regarded the lease as terminated. Up to the time of the commencement of this action the lessee did not make any formal surrender of the lease, nor had he at any time before the commencement of this action tendered back to plaintiff the possession of all the personal property so received by him under said lease. The key to the laundry was given to plaintiff's agent at the time of putting in the new engine, and for the purpose of getting into said laundry to replace said engine. The key has ever since been in the possession of the plaintiff or his agents. At the time of the completion of the replacement of said engine, plaintiff tendered the key to the defendant, who refused to accept same. The plaintiff brings this action to recover the rents due September 1, October 1, and November 1, 1899, under the terms of said lease. The defendant sets up in defense that on August 14, 1899, the said engine and fixtures were taken by plaintiff's creditors as aforesaid, and by reason thereof the lessee was evicted from the premises, and further, as a defense, that he was by the removal of said engine deprived of the right to exercise his option to purchase said laundry under the terms of said lease, and that by reason of the premises said lease was terminated at the time said engine was removed by the creditors of said plaintiff from said laundry. * * It is my opinion that the defendant, by his failure to exercise his right to terminate the lease until the plaintiff had replaced all the property taken by plaintiff's creditors, and by his failure to return or offer to return to plaintiff the possession of all the property which came into defendant's possession, by the terms of the lease, has waived his right to terminate the lease, and that he is liable for the rents, according to the terms of the lease, from the time the engine and fixtures were replaced in the laundry plant. Judgment will be for

the plaintiff according to the prayer of his petition. O. L. Moore, Judge."

A motion was made to require the plaintiff to make the reply more specific, by stating what facts were involved in the first case, how they were determined, in whose favor they were determined, and what determination was reached by the court in that action as to the facts in the pending suit. This motion was overruled, and a demurrer for insufficiency of facts upon substantially the same grounds as the motion was filed and overruled. Upon the trial, testimony as to the mistake in the description of the real estate, showing there was no lot 2, block 11, in Callen's addition, but that there was a single lot and block of that description in Cuddy's addition, and that the laundry plant was there located, was admitted over Dixon's objection. The lease and the record of the former suit were likewise admitted over objections based upon the nonidentity of both the real and personal property involved, and the court excluded testimony offered by Dixon relating to the substitution of the personal property and the termination of the lease, as having been previously litigated. A verdict for the amount of rent accruing after the first trial was directed, and, after his motion for a new trial had been made and overruled, Dixon commenced this proceeding in

error.

Thos. Dever, for plaintiff in error. Roark & Roark, for defendant in error.

BURCH, J. (after stating the facts). The reply was not vulnerable to either the motion or demurrer. The copies of the pleadings, findings, and judgment in the first suit disclosed precisely what facts were there litigated, how they were adjudicated, and against just whom the decision ran. Any statement the pleader might have made could not illumine them, or add anything to the information they imparted. Both the motion and the demurrer were properly overruled.

The misdescription of the real estate did not destroy the sameness of the property or of the lease involved in the two suits. The subject and the evidence of the dealings between the parties remained constant. The testimony relating to the mistake simply conduced to their identity. Nor was it necessary to reform the lease, since by the aid of extrinsic testimony the property was identifiable from its designation as a laundry. Mumper v. Kelley, 43 Kan. 259, 23 Pac. 558.

The chief contention of plaintiff in error is that a part of the personal property actually involved in the action was the substituted engine and boiler, which were not described in the lease, and which, if possessed at all. were held by virtue of a parol agreement, unenforceable under the statute of frauds. Many pages of the brief are devoted to a discussion of the right of plaintiff to recover

upon the theory that the action was necessarily upon the status created by the verbal agreement. But the plaintiff did not sue He based his acupon any parol contract. tion upon the written lease, and the defendant cannot create for the plaintiff a new cause of action, read it into the petition, cudgel it to death, and then claim he has destroyed the plaintiff's cause. The utmost weight, therefore, which can be given to the facts relating to the substitution of personal property, is that they establish a contract in parol, which supersedes the writing, and defeats it as a basis of recovery. The findings of fact quoted were based upon and wholly within the issues in the first case, and from them it is obvious that the effect of the change in engines and boilers was the moot point in the former suit. In that action plaintiff in error asserted that he was relieved from all liability whatever to his lessor. Now he claims that he is liable only in another way. He seeks merely to deduce an additional consequence from the same state of facts. His effort to do so is belated. He should have drawn all his conclusions in the first litigation, and, having failed to do so, the whole matter is res adjudicata. McEntire v. Williamson, 63 Kan. 275, 65 Pac. 244, and cases cited; Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459, and cases cited. There was no error, therefore, in either the admission or exclusion of evidence, or in overruling the motion for a new trial based upon the action of the court in respect to these matters.

Other questions presented by counsel for plaintiff in error have been examined, and, no error appearing in the record, the judgment of the district court is affirmed. All the justices concurring.

(65 Kan. 835)

STEVENS v. MAXWELL. (Supreme Court of Kansas. Dec. 6, 1902.) TRIAL-PROVINCE OF COURT AND JURY. 1. It is the province of the court to determine and define the issues in the case, and the duty of the jury to accept the interpretation of the pleadings made by the court, and to follow its directions.

2. The practice of sending the jury to the pleadings for the matters in controversy cannot be approved in any case; and where the pleadings are prolix, and contain important and intricate averments, upon some of which no proof was offered, it is deemed to be material

error.

(Syllabus by the Court.)

In banc. Error from district court, Harper county; P. B. Gillett, Judge.

Action between W. T. Stevens, administra

JOHNSTON, J. In this action the trial court erroneously referred the jury to th pleadings to ascertain the issues and matters in controversy. After a brief preliminary statement of the nature of the case, the court told the jury that for a more detailed statement of the claims of the parties they were referred to the pleadings, and copied them at length in its instructions. The pleading of the plaintiff was a lengthy and somewhat complicated statement of facts relating to the lease of a small tract of land in the interior of a larger tract upon which to build a store for the conduct of a mercantile business; the erection of the building and the carrying on of the business therein for a time; the use of a portion of the land not rented as a roadway to the store; the transfer of the entire tract, including that on which the store was built, by the lessor to another; the closing up of the roadway by the grantee, compelling the plaintiff to move to another location, where the public could reach the store; and a statement of the losses sustained by the wrongs of the defendant, and of the expenses and costs necessarily incurred in moving. Included in the pleading is a long lease, as well as an itemized statement of losses sustained, and the expenses arising from the alleged wrongs of the defendant in closing up the roadway. The answer of the defendant, which was not so lengthy or involved, was read to the jury, but it included general and special denials, averments of the surrender of the lease, the purchase by the defendant of other land in consideration of the relinquishment of the leased land, and the removal of the buildings to the purchased land. In connection with the pleadings, the court, it is true, presented some of the claims of the parties by specific instructions, but did not undertake to present all the matters in controversy upon which proof had been offered. In the statement of the costs incurred and losses sustained because of the wrongdoing of the defendant, the plaintiff set forth 21 different items, upon some of which no proof was offered, and therefore were not in controversy in the case. The court, in instructing the jury, said: "In determining the amount due from the defendant to the plaintiff, if you find from the evidence that there is due the plaintiff any sum whatever, you should confine yourselves, in making your estimates, to such items as are set forth in the account of the plaintiff attached to his bill of particulars, and concerning which items evidence has been permitted by the court. You will note by an examination of the account of the plaintiff that it contains a number of items concerning which no evidence has been in

Stevens brings error. Reversed.

T. A. Noftzger and Geo. B. Crooker, for plaintiff in error. Sam S. Sisson, for defendant in error.

not, of course, recover." The jury were thus not only remanded to the pleading for the matters in controversy, but were required to search out and determine for themselves the matters in dispute upon which testimony had

is the province of the court to determine and define the issues in the case, and the duty of the jury to accept the interpretation of the court, and to follow its directions. Myer v. Moon, 45 Kan. 580, 26 Pac. 40; Railroad Co. v. Eagan, 64 Kan. —, 67 Pac. 887; 11 Enc. Pl. & Prac. 154. A departure from this practice is especially hurtful and to be condemned where the pleadings, as in this case, are prolix, and contain important and intricate statements of fact. The attention of the jury should have been directed to the material questions; and the immaterial matters, and those upon which no proof was produced, should have been eliminated from the case, and taken from the jury by the court. Here the jury were required to hunt out the contentions of the respective parties, and it was left to them to decide what claims should be eliminated because of the absence of proof. For this error the judgment must be reversed, and the cause remanded for a new trial. All the justices concurring.

(65 Kan. 746)

DRUM FLATO COMMISSION CO. v. FIRST NAT. BANK OF MADISON. (Supreme Court of Kansas. Dec. 6, 1902.)

CHATTEL MORTGAGE-FAILURE TO RECORD. 1. A failure to deposit and file a chattel mortgage with the register of deeds does not render the instrument void as to one who merely takes the mortgaged property under the mistaken belief of his own ownership of it, but it is void only as to creditors of the mortgagor and subsequent purchasers and mortgagees. Gen. St. 1901, § 4244.

(Syllabus by the Court.)

In banc. Error from district court, Greenwood county; G. P. Aikman, Judge.

Action by the First National Bank of Madison against the Drum Flato Commission Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Botsford, Deatherage & Young, A. L. Redden, and Howard J. Hodgson, for plaintiff in error. Graves & Hamer, for defendant in

error.

DOSTER, C. J. Many claims of error are made in this case. We have examined all of them, but none are well founded, and but one seems to call for explanation and formal decision. One Milner was a mortgagor of cattle. The First National Bank of Madison was the assignee of the mortgage. It sued the Drum Flato Commission Company for a conversion of the cattle to the latter's use. One of the defenses was that the bank had negligently permitted the cattle to become intermixed with other cattle of the same class and characteristics, belonging to another person, on which it (the Drum Flato Company) held a mortgage, whereby a confusion

of goods occurred, and that it (the Drum Flato Company) had no knowledge of the bank's interest in the cattle claimed by it, because the latter had failed to deposit and file its mortgage with the register of deeds. The Drum Flato Company did not claim to be a creditor of the mortgagor of the cattle in question, nor a purchaser or mortgagee of them. Its objection to the nonrecord of the bank's mortgage was not, therefore, well taken. The statute does not apply to its case. The law concerning notice by the record of chattel mortgages is as follows: "Every mortgage or conveyance intended to operate as a mortgage of personal property shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county in which the property shall then be situated.” etc. Gen. St. 1901 § 4244. It will be observed that the protection of the above statute is not extended to one who takes the property of another under the mistaken belief that it is his own. In order to come within its terms, he must be a creditor of the mortgagor, or a subsequent purchaser or a subsequent mortgagee. The Drum Flato Company was none of these.

The judgment of the court below is affirmed.

CUNNINGHAM, J., not sitting, having been of counsel in the court below. All the other justices concurring.

MATTERN v. SUDDARTH. (Supreme Court of Kansas. Dec. 6, 1902) NEW TRIAL-NEWLY DISCOVERED EVIDENCE 1. Where defendant had known for several months the value of certain drafts in the pos session of a bank as evidence in an action against him, but waited until a very short time before the trial to obtain them, and was unable to do so, but after the judgment on a search they were discovered in the bank, there was no such diligence as authorized a new trial for newly discovered evidence.

In banc. Error from district court, Shawnee county; Z. T. Hazen, Judge. Action by J. N. Suddarth against W. J. Mattern. Judgment for plaintiff, and defendant brings error. Affirmed.

A. F. Williams, for plaintiff in error. J. S. Ensminger and W. S. McClintock, for defendant in error.

PER CURIAM. This was an action involving mutual accounts between the parties. The plaintiff had judgment in the city court of Topeka. On appeal he had judgment again more than eight months thereafter in the district court. The overruling of defendant's motion for a new trial based upon newly discovered evidence is the only error he now,

as plaintiff in error, assigns. This newly discovered evidence was the finding of two drafts by the bank issuing them, evidencing two payments made by defendant to plaintiff. It appears that prior to the last trialhow long prior is not shown; presumably not long else it would have been shown-defendant went to the bank issuing the drafts in dispute, and requested the cashier to make. search for any drafts or checks which would evidence payments made by him to plaintiff; that certain checks and drafts were turned over to him, which were, as the cashier informed him, all that could then be found after a thorough search; that after this trial plaintiff in error again requested the cashier to make a thorough search, which he did, and then found the two drafts. We do not think this shows the diligence in obtaining these papers which the law requires. Defendant had known for more than eight months the value of these drafts as matters of evidence, yet he waited until but a few moments, maybe, before his trial came on, before making any request of the cashier to get these drafts for him. They seem to have been found after the trial without trouble. Again, we think the drafts but cumulative in their character. The defendant testified to the making of both the payments evidenced by these drafts, and in the case of one of them, at least, introduced the stub of the check with which he purchased the draft. And, finally, we are not clear but that the jury gave the defendant full credit for the amount of both of these payments; indeed, it rather seems to us it did.

The judgment of the court below is affirmed.

(65 Kan. 816)

FIRST STATE BANK v. STEVENSON et al. (Supreme Court of Kansas. Dec. 6, 1902.)

REPLEVIN-JUDGMENT-CORRECTION-TIME FOR MOTION.

1. Where the findings made in a replevin action entitle the plaintiff to a judgment in the alternative, but through neglect or omission a judgment not in the alternative form is entered, it may be corrected thereafter on motion of the plaintiff.

2. Such motion may be filed and the judgment corrected beyond the term at which it is entered, and at any time within three years after the rendition of such judgment.

(Syllabus by the Court.)

In banc. Error from district court, Graham county; Chas. W. Smith, Judge.

Action by the First State Bank against J. H. Stevenson and others. There was judgment for plaintiff, its motion to correct the judgment was denied, and it brings error. Reversed.

F. D. Turck and Reed & Reed, for plaintiff in error. H. J. Harwi, H. M. Baldwin, and G. W. Jones, for defendants in error.

JOHNSTON, J. This was an action of replevin by the First State Bank to recover

from J. H. Stevenson, Bert Stevenson, and G. H. Martin the possession of 195 head of cattle and 50 calves. The interest of the bank in the stock was a special one, arising under a chattel mortgage given to secure a promissory note executed by the defendants. Under an order of delivery, the officer obtained possession of 117 of the animals. The remainder of them he was unable to find. Upon issues formed, a trial was had, which resulted in favor of the bank. The court found that the indebtedness secured by the mortgage was the sum of $4,861, and that at the commencement of the action the bank was entitled to the immediate possession of all the property described in its petition, consisting of 89 head of cows, 4 bulls, 4 yearling calves, and 24 calves by the side of the cows, and also 79 other cows and 32 other calves, all of which were wrongfully detained by the defendants. It was found that the value of the first lot of cattle, viz., those which were seized under the order of delivery, were of the value of $2,661, and that the remaining number, viz., those not seized, were of the value of $2,200. After specifically finding the value of the plaintiff's interest, that it was entitled to the immediate possession of all of them, and that they were wrongfully detained by the defendants, the court adjudged a recovery of the possession of the first lot, and that, if a delivery thereof could not be had from the defendants, the plaintiff should recover the value thereof, to wit, the sum of $2,661. It was further considered, ordered, and adjudged that the plaintiff recover from the defendants the value of the 79 cows and 32 calves not found by the sheriff, to wit, the sum of $2,200. This judgment was entered of record on September 25, 1900, and in the following May a motion was made to modify the judgment so that it should be in the alternative for the possession of the 79 cows and 32 calves, or their value in case a delivery of the same could not be had, which motion was overruled. The modification of the judgment should have been made. der the findings of the court, the plaintiff was entitled to a judgment in the alternative for the possession of the cattle not found, or the value thereof in case a delivery could not be had. In Bank v. Thompson, 54 Kan. 307, 38 Pac. 274, the form of a judgment in replevin was under consideration, and it was said that: "It was an ordinary action of replevin, and the petition was in the usual form. The prayer of the petition demanded judgment for the possession of the property, for damages for detention, and for the costs of the action. The statute specifies the form of the judgment which must be entered in an action of replevin, and requires that it shall be entered in the alternative in such a case as this. Failure to have rendered the judgment in the alternative would have been material error." See, also, Hall v. Jenness, 6 Kan. 356; Ward v. Masterson, 10 Kan. 77;

Un