upon the theory that the action was necessarily upon the status created by the verbal agreement. But the plaintiff did not sue upon any parol contract. He based his action 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, administrator, and W. L. Maxwell. From a judgment, Stevens brings error. Reversed.

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

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 introduced, and for these items plaintiff cannot, 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

It

been offered. The practice of sending the jury to the pleadings for the matters in controversy cannot be approved in any case, and in this one it was clearly erroneous. 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 stat ute 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 possession 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 de fendant brings error. Affirmed.

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

Babb v. Aldrich, 45 Kan. 218, 25 Pac. 558. The findings contain all the requisites for the rendition of a proper judgment, and the neglect or omission in entering a judgment in the alternative may be corrected by motion. It is not necessary that such motion should be filed at the same term at which judgment was rendered, but it may be filed afterwards, at any time within three years after the rendition of the judgment. Civ. Code, §§ 568, 569, 575; Sumner v. Cook, 12 Kan. 162; First Nat. Bank of Newton v. Wm. B. Grimes Dry Goods Co., 45 Kan. 510, 26 Pac. 56. The error of the trial court in refusing to modify the judgment does not require a new trial of the case. In Ward v. Masterson, supra, it was held to be sufficient to remand the case to the district court with directions to modify the judgment so that it should be in the alternative for the delivery of the possession of the property, and, in case this cannot be had, for the recovery of the value.

The order denying the motion will therefore be set aside, and the cause remanded, with directions to enter judgment in the alternative, in accordance with the findings and the requirements of the statute. All the justices concurring.

(65 Kan. 792)

KANSAS CITY, FT. S. & M. R. CO. v. PERRY.

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

RAILROADS-FIRES SET BY LOCOMOTIVES-EVIDENCE-DAMAGES.

1. The fact that soon after the passing of an engine a fire starts near a railway track in an inclosed field, covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.

2. In an action for damages for the injury and destruction of fruit trees in an orchard and a hedge forming a fence, an instruction that the measure of plaintiff's recovery is the amount and value of the damage to the thing injured, and the value of the thing destroyed, as an appurtenance to and part of the realty, is proper.

(Syllabus by the Court.)

In banc. Error from district court, Bourbon county; W. L. Simons, Judge.

Action by Charles Perry against the Kansas City, Ft. Scott & Memphis Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Pratt, Dana & Black, for plaintiff in error. John H. Crain and W. R. Biddle, for defendant in error.

BURCH, J. Charles Perry brought suit against the Kansas City, Ft. Scott & Memphis Railroad Company in the district court 2. See Damages, vol. 15, Cent. Dig. § 283.

of Bourbon county to recover damages resulting from two fires claimed to have been occasioned by the operation of the railroad company's trains. The first fire occurred November 17, 1898, and the second fire October 9, 1899. The testimony disclosed that each fire started near the outside of the railroad company's right of way, and at all events not more than 61 feet from the center of the track. Both fires started in an inclosed, cultivated field, and each time the ground was covered with very dry, combustible vegetation. In each case a considerable wind was blowing, and the course of the fire was away from the railroad track. One fire traveled at about the speed of a horse, and the other as fast as a man could run. In each case the tenant of the farm discovered the fire from the smoke driving from the field toward the farmhouse. One fire was discovered a minute or two after a passenger train had gone by, and the other a few minutes after a freight train Lad passed; the freight train having been preceded by a passenger train. No other facts were adduced in evidence relating to the origin of the fires, and the question for determination is the sufficiency of the evidence produced to support a verdict against the railroad company.

It is contended by counsel for the railroad company that since there was no evidence at all that either train threw sparks or live cinders, or emitted smoke, or was put to special exertion, and no further evidence than that stated above of the nonexistence of any other adequate cause, the fact was not established that the fires complained of were caused by the operation of the railroad, under section 5923, Gen. St.. 1901. There is no disposition to question the rule that, in the absence of positive proof of the means of ignition, a full conviction of the fact may be generated by circumstances. Railroad Co. v. Bales, 16 Kan. 252; Same v. Matthews, 58 Kan. 447, 49 Pac. 602. But it is argued that, to establish the relation of cause and effect between the passing of the trains and the fires in question, the jury must have invaded the realm of sheer conjecture and guess. It is true that the origin of the fires must rest upon proof, and not upon possibility; but it is not true, as stated in Musselwhite v. Receivers, 4 Hughes, 166, Fed. Cas. No. 9,972, that the test of the value of circumstantial evidence in cases of this character is that no other theory but the hypothesis upon which the conclusion is based can be formed. If the circumstances present a reasonably adequate cause, they will be sufficient to go to the jury, even though some other cause which may be suggested may not be excluded. In discussing the probative force of circumstantial evidence, Prof. Greenleaf says: "In civil cases it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove.” Greenl. Ev. § 13a, And in Railway Co. v.

Balch, 122 Ind. 583, 23 N. E. 1142, the rule is stated as follows: "If circumstances are proved authorizing an inference in favor of a plaintiff, it is proper for the jury to draw it, and their verdict cannot be disturbed." See, also, Railroad Co. v. Matthews, supra. Can it be said, then, that the conclusion of the jury from the facts before it was legitimate? Courts of sound judgment have so decided. In the case of Smith v. Railway Co. (determined in the exchequer chamber) L. R. 6 C. P. 14, the facts bear considerable similarity to those involved in this case, and, as set forth in the headnote of the report, are as follows: "Workmen employed by the defendants, a railway company, after cutting the grass and trimming the hedges bordering the railway, placed the trimmings in heaps between the hedge and the line, and allowed them to remain there fourteen days, during very hot weather, which had continued for some weeks. A fire broke out between the hedge and the rails, and burnt some of the heaps of trimmings and the hedge, and spread to a stubblefield beyond, and was thence carried by a high wind across the stubblefield and over a road, and burnt the plaintiff's cottage, which was situated about 200 yards from the place where the fire broke out. There was evidence that an engine belonging to the defendants had passed the spot shortly before the fire was first seen, but no evidence that the engine had emitted any sparks, nor any further evidence that the fire had originated from the engine; nor was there any evidence that the fire began in the heaps of trimmings, and not on the parched ground around them." Upon the argument it was suggested that "there were many other ways in which it may have begun which are equally consistent with the evidence. Thus, a fusee may have been thrown from a window of one of the carriages of the train, or one of their workmen on the line may have dropped a spark from his pipe. Where the evidence is equally consistent with the view that the defendants were liable and that they were not, there is no evidence to go to the jury." To which Channell, B., replied: "But here the two causes of the fire that are suggested, viz., the engine and the pipe or cigar, are not of equal probability, and there was evidence for the jury, therefore, that the fire was caused by the more probable of the two alleged causes." It was therefore held "that, it being a matter of common knowledge that engines do emit sparks, there was evidence for the jury that the fire originated in sparks from the engine that had just passed." Likewise, the supreme court of Iowa, in Johnson v. Railway Co., 77 Iowa, 666, 42 N. W. 512, held: "Where the evidence showed that, after defendant's engines had passed, the fires were discovered in the grass, and it was not shown that they could have arisen from any other source, the jury was warranted in find

ing that they were caused by the engines." In Wisconsin the question was determined in Abbot v. Gore, 74 Wis. 509, 43 N. W. 365, as follows: "The fact that an engine passed shortly before a fire was discovered on or near the right of way is some evidence tending to show, in the absence of proof of any other cause, that such engine set the fire, notwithstanding it was in good order and properly managed." And in the case of Richmond v. McNeill, 31 Or. 342, 49 Pac. 879, the syllabus. reads: "Evidence tending to show that a railway company negligently left along its track combustible material, which was discovered to be on fire soon after the passing of a train, and plaintiff thereby suffered damage, raises an inference that the fire was caused by sparks from the engine, which the company must rebut." Other cases illustrating the method of induction involved may be found in 13 Am. & Eng. Enc. Law, 513. See, also, Railroad Co. v. Gibson, 42 Kan. 34, 21 Pac. 788. In the case at bar, given the place of origin in a field devoted to the production of farm crops, and near to the railroad track, the inflammable character of the growth upon the soil, the close proximity in time of the passing of the train and the fire, the well-known fury of the forces in the locomotive, and the strength and direction of the wind, and no scientific or juridical process of thought could be violated in any way by inferring that the operation of the train caused the fire. The verdict of the jury, therefore, was fully warranted by the evidence.

Some complaint is made that in the proof of the origin of the first fire the only witness who was present on the premises at the time referred to the passing of the train as occurring "about" the time he discovered the fire. His narrative of all the facts and his description of the progress of events clearly showed, however, that the fire could not have been burning in the field before the train went by, and the evidence is sufficient to sustain the verdict in this respect.

A part of the property injured and destroyed consisted of fruit trees in an orchard, and a hedge forming a fence. The court instructed the jury that the measure of plaintiff's recovery was "the amount and value of the damage to the thing injured, and the value of the thing destroyed, as an appurtenance to the part of the realty." Property of this character has a distinct value of its own, as part of the land, and was so esteemed in all the testimony relating to damage. Since evidence of this character was properly admissible under the decisions of this court (Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; Railway Co. v. Arthurs, 63 Kan. 404, 65 Pac. 651), it must follow that an instruction based upon such evidence was entirely proper.

No error appearing in the record, the judgment is affirmed. All the justices concurring.