agreements set forth by the defendant were made out at the request of the plaintiff, or any one for him. This cause was called for trial upon the pleadings above described, and, upon the plaintiff offering testimony in his behalf, the defendant objected to the introduction of any evidence on the part of plaintiff, for the reason that the pleadings showed no cause of action in favor of the plaintiff, and that the defendant was entitled to a judgment on the pleadings, which objection and motion the court overruled; and, the cause having been submitted to the jury, under the evidence and instructions of the court, a verdict was rendered in favor of the plaintiff below, and judgment entered upon such verdict, from which judgment the railway company brings the case here for review.

The first question presented is whether the court erred in overruling the objection to the evidence of the plaintiff under the pleadings in this case. The petition alleged that the contract of carriage was verbal, and was made with the agent of the defendant company; that such contract was, in substance, that the company would furnish 10 cars for the shipment of the stock of plaintiff, and that said train of cars should be at Amiot station not later than 8 o'clock a. m., Friday, August 9, 1889, and that the company would transport said cattle so that they would be delivered and unloaded at the Kansas City stock yards Friday night, August 9, 1889. The petition further alleged that said train of cars was not furnished by the company until 9 o'clock Friday night, August 9, 1889, and that said failure upon the part of the company was the result of the negligence of its employés; that, after the train was so furnished and loaded, it was delayed at different points along the road, so that it did not reach the Kansas City stock yards until noon of Saturday, August 10, 1889; and that thereby plaintiff was deprived of selling his cattle that day, to his damage in the sum of $1,995. The answer, as stated above, denied any verbal contract, and set forth five written and printed live-stock contracts, which, it alleged, were executed by its agent and the plaintiff and others acting as his agents and in his behalf, and alleged the fulfillment of the contract on the part of the company. The reply was not verified, and it was for this reason that it was claimed by the railroad company that no evidence should have been permitted by the court under the pleadings. We are of the opinion that the court did not err in overruling the objection to the introduction of testimony. The reply, while tacitly admitting the execution of the written instrument set forth in the answer, thereby raising no issue so far as the execution of the written contracts was concerned, did allege that the signatures of the plaintiff below and the other parties who signed the same were procured by certain false and fraudulent statements made by the agent of the company, and specified what such state

ments were, and the manner in which it was claimed the signatures were procured. It seems clear to us that the reply raised an issue, and that, therefore, the plaintiff below had the right to introduce evidence to show that the verbal contract which he claimed was originally made had not been varied by a subsequent written agreement. Coal Co. v. Whittaker, 40 Kan. 123, 19 Pac. 330.

For the reason stated above, we are of the opinion that the second objection raised by plaintiff in error and here relied upon was properly overruled. The next error complained of is the overruling of the demurrer filed by the defendant below to the evidence of the plaintiff. Upon this question the two members of this court upon whom a decision of this case devolves are not agreed; but, both being of the opinion that a new trial is necessary upon other grounds, we will pass to the consideration of questions involved therein.

The plaintiff in error further contends that the court committed error in permitting evidence of the market value of the cattle in question in the city of Chicago upon the Monday following their arrival in Kansas City. It appears from the evidence that, when the cattle arrived in Kansas City, which was their destination so far as the contract of shipment was concerned in this case, they were immediately reshipped to Chicago, and there sold upon the market. This reshipment was without any knowledge upon the part of the plaintiff in error. It is true the court, in instructing the jury, laid down the proper measure of damage, and also attempted to eliminate any error arising from the introduction of such testimony by instructing the jury that such testimony had been admitted to throw light upon what would have been the value of the stock, and what it really was in Kansas City at the time it arrived there. We are of the opinion that the admission of this testimony was prejudical error. In the case of Railway Co. v. Reynolds, 8 Kan. 623, a similar question was before our supreme court for decision. In that case, also, the trial court, after admitting testimony of the value of certain cattle at other points than that of destination, properly instructed the jury as to the measure of damages; but it was held that the admission of the evidence was error, and was not cured by the instruction. In delivering the opinion of the court in that case, Brewer, J., said: "In permitting this range of testimony we think the court erred. The value of the cattle at a subsequent time, and in a different market, might be affected by many considerations. Values change in proportion to the demand and supply. A few days might make material alteration. The treatment received, and the care and attention bestowed, subsequent to the delivery at state line, would, of course, affect their condition and value. The range

of inquiry would be widely extended, and the attention of the jury distracted by the multi

tude of questions from the material facts. The plaintiff in error could not be supposed to keep track of the cattle subsequent to their delivery, or be prepared with testimony as to the care and treatment they received thereafter. In their value, three days after, In the St. Louis market, was proper subject of inquiry, why not their value a week after in the city of New York, or a month after in the Liverpool market?" The testimony with regard to the market value in Chicago on the Monday subsequent to the delivery of the cattle at the Kansas City stock yards, not having been withdrawn from the jury, presumably was a part of the evidence upon which their verdict was based.

A number of objections are raised to the Instructions given, and to the refusal of the court to give certain instructions requested by plaintiff in error; but we do not consider it necessary to notice these objections at this time, for the reason that most, if not all, of them will probably not arise upon another trial of this case. For the error above referred to, the judgment of the district court will be reversed, and the cause remanded for 1 new trial.

DENNISON, J., concurs. JOHNSON, P. J., having been of counsel, took no part in this case.

(2 Kan. A. 782)

SWARTZEL v. KARNES et al. (Court of Appeals of Kansas, Northern Department, E. D. March 7, 1896.)

MISJOINDER OF PARTIES-WAIVER-INDEBITATUS COUNT-GENERAL ISSUE-PROOF.

1. An objection on the ground of a misjoinder of parties plaintiff in the action cannot be first made on the trial.

2. The indebitatus common count may be declared on, and a recovery thereunder had, in an action brought to recover money due the plaintiff for personal services rendered under a contract fully performed on his part, nothing remaining to be done except payment by the defendant; and a cause of action may be established by evidence of either a special or an implied contract.

3. When the petition in such action consists of only the indebitatus count, and the plaintiff introduces evidence to prove the reasonable value of the services performed, the defendant may show, under a general denial, that the amount or value of the services was fixed by a special contract; and, if a special contract is proven, it governs as to the amount which the plaintiff can

recover.

(Syllabus by the Court.)

Error from district court, Wyandotte county; H. L. Alden, Judge.

Assumpsit by J. V. C. Karnes and others against John Swartzel. From a judgment for plaintiffs, defendant brings error. Reversed.

Van Syckle & Littick, for plaintiff in error. Scroggs & McFadden and James S. Gibson, for defendants in error.

GARVER, J. The judgment complained of In this case was rendered by the district court

of Wyandotte county in an action brought by the defendants in error (plaintiffs below) against the plaintiff in error (defendant below) to recover for attorney's fees alleged to be due and owing for professional legal services performed by the plaintiffs at the special instance and request of the defendant. The answer was a general denial.

It is first claimed that there was a misjoinder of parties plaintiff. This objection was made for the first time upon the trial. The evidence shows that Karnes and Krauthoff are the only persons interested in the money alleged to be due from the defendant. Holmes was not a member of the firm when the services were performed, and apparently has no concern in the result of the action. Any objection on this ground, however, was waived by the failure to make it at the proper time. A misjoinder or defect of parties plaintiff is waived unless it is taken advantage of by answer or demurrer. Commissioners of Lyon Co. v. Coman, 43 Kan. 676, 23 Pac. 1038; Hurd v. Simpson, 47 Kan. 245, 26 Pac. 465.

The defendant further objects to the sufficiency of the petition, claiming that it does not state a cause of action, on the ground that it neither alleges the value of the services nor that the plaintiffs were licensed attorneys. The plaintiffs declared simply upon the common count, the indebitatus. It is not an easy matter to reconcile this form of pleading with the plain requirements of the Code, but precedent and authority are too strong in its favor to admit of any discussion of it upon principle as an original proposition. The rule is well settled in this and other states that, even under the Code, when a special contract for services has been fully performed by the plaintiff, and nothing remains to be done except the payment of the money due from the defendant, the plaintiff may recover under the indebitatus count. Meagher v. Morgan, 3 Kan. 372; Emslie v. City of Leavenworth, 20 Kan. 562; Allen v. Patterson, 7 N. Y. 476; Blizzard v. Applegate, 61 Ind. 368; Moore v. Manufacturing Co., 113 Mo. 98, 20 S. W. 975. Of course, if a timely motion therefor be made, the court could require a more particular and definite statement of the facts. In the absence of such motion, or other seasonable objection, the petition must be held to be sufficient. A pleading must be vitally and essentially defective if any advantage can be taken thereof for the first time upon the trial.

Another and more serious question arises upmit the defendant to show a special contract on the ruling of the court in refusing to perbetween the defendant and the plaintiffs fixing the amount of the fees for certain of the services. It was objected by the plaintiffs that the evidence was not admissible under the general denial; that, before such matter could be available to the defendant, he must specially allege it in his answer. This view was adopted by the court, and the evidence accordingly excluded. The court also refused to permit the defendant to amend his answer

so as to conform it to the ruling of the court, except on the condition that he pay all costs in the case to that time. The defendant refused to comply with this condition, and the trial proceeded upon the theory adopted by the court. This ruling was erroneous. The petition averred, in a very general way, that the defendant was indebted to the plaintiffs in a certain sum on acccount of particular services alleged to have been performed for him. The plaintiffs, in effect, said to the defendant, "You owe us a certain sum for services in the C. case." The defendant answered, "I do not." Here was joined an issue which was very simple, but it was very broad. There is nothing indicating whether the plaintiffs would rely, to prove the amount of the indebtedness, upon a special or upon an implied contract. If there was a special agreement, they could prove it to show what the defendant promised to pay and what they were entitled to recover. Emslie v. City of Leavenworth, 20 Kan. 562; Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299; Mansur v. Botts, 80 Mo. 651; Stafford v. Sibley (Ala.) 17 South. 324. If no special contract existed, the law implied a promise to pay the reasonable value of the services, and proof of such value would fix the amount of recovery. In either case the allegations of the defendant's indebtedness would be proven; but the amount thereof would be dependent upon the existence or nonexistence of a special agreement concerning the fees. When the plaintiff may prove, under such pleadings, a special contract as evidence of the amount of the indebtedness, it is difficult to understand on what principle the defendant is debarred from a like privilege. Any facts directly connected with the transactions are pertinent to the issue, and are available to either party for the purpose of establishing the ultimate facts, the indebtedness and its amount. It seems very clear, too, that this can be done on the part of the defendant under the general issue. The rule is general that under such issue the defendant may introduce any evidence which directly tends to disprove the allegations of the petition. No new matter is brought in, for it is only the defendant's version of the same transaction which is relied upon by the plaintiffs. Why should he be required to be more specific in statement than are the plaintiffs? As said by the supreme court in Parker v. Hays, 7 Kan. 412, when the plaintiff "merely states an indebtedness, without stating how it arose, he invites an issue upon whether there is an indebtedness, and an examination into that issue by the testimony; and this can be gone into by the defendant under a general denial." See, also, Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196; Blizzard v. Applegate, 61 Ind. 368; Bond v. Corbett, 2 Minn. 248 (Gil. 209). Thus it may be shown that no indebtedness exists, for the reason that it has been paid. Marley v. Smith, 4 Kan. 183. It is equally within the scope of the pleadings for the defendant to

show that he is not indebted in the amount alleged in the petition for the reason that a less sum was expressly contracted for. In this case the petition alleged that the defendant was indebted to the plaintiffs, among other things, in the sum of $250 for services performed in the trial of a certain lawsuit. On the trial, the plaintiff's proved and rested upon the reasonable value of the services. The defendant claimed, and offered to show, that it was specially agreed that the fee for the services in said action should be only $100. If the plaintiffs had introduced evidence tending to show that a fee of $250 had been expressly agreed upon for the services, it will certainly not be claimed that the defendant could not dispute that fact by showing that the contract fee was $100. The principle is the same though the plaintiffs elected to pursue a different course upon the trial. The pleadings fixed the rights of the parties in this respect, even though the plaintiff attempted, on the trial, to ignore the special contract. The rule is well settled that when the plaintiff sues, as in this case, upon the indebitatus, without specially stating the contract from which it arises, he may recover upon proof of either a special or an implied contract; but when it appears that there was a special contract, fixing the amount or value of the services, such special contract affords the rule which determines the amount of the recovery. Holmes v. Stummel, 24 Ill. 370; Pickard v. Bates, 38 Ill. 40; Merrill v. Railroad Co., 16 Wend. 588; Ludlow v. Dole, 62 N. Y. 617; Dermott v. Jones, 2 Wall. 1; Perkins v. Hart, 11 Wheat. 237, 252. In the opinion in the case last cited the rule is thus stated: "For although, in the cases before stated, in which the special agreement has been executed or otherwise closed, a general indebitatus assumpsit may be maintained, it is nevertheless true that the special agreement may be given in evidence by the defendant for the purpose of lessening the quantum of damages to which the plaintiff is entitled." That this may be inquired into under the general issue, we have no doubt. We are therefore of the opinion that the defendant should have been permitted to introduce the evidence offered, and that substantial error was committed by its rejection. The judgment will therefore be reversed, and the case will be remanded for a new trial.

(2 Kan. App. 770) TRUSTEES', EXECUTORS' & SECURITIES' INS. CORP., Limited, et al. V. BOWLING.

(Court of Appeals of Kansas, Northern Department, E. D. March 7, 1896.)

SHERIFF'S SALE-ACTION ON BID-PRINCIPAL AND AGENT-VENDOR'S LIEN.

1. When a sheriff makes a sale of real estate under process issued to him from the district court, and makes return thereof without having demanded and received the purchase money, and the sale is confirmed, he can maintain an action

against the purchaser to recover the amount of the bid; and the right so to do, when he has paid the amount to which a judgment creditor is entitled from the proceeds of such sale, is not defeated by the expiration of his term of office.

2. A principal is not liable, on a contract of purchase of real estate entered into by his agent, to one dealing with such agent with actual knowledge of the fact that the agent had previously exhausted his authority concerning the subjectmatter of the contract, and when the principal has not thereby acquired any substantial benefit to which he was not already entitled under a previous contract.

3. In the absence of a special agreement therefor, a vendor's lien is not recognized in this state; and this rule is applicable in an action brought by a sheriff, after a deed of conveyance has been executed, to recover the purchase money due from a purchaser at a sheriff's sale of real estate. In such action, the claim for the purchase money does not necessarily follow the land, and the judgment should not be made a special lien thereon.

4. The evidence examined, and held insufficient to establish any personal liability as against the plaintiffs in error.

(Syllabus by the Court.)

Error from district court, Wyandotte county; H. L. Alden, Judge.

Action by Thomas B. Bowling against the Trustees', Executors' & Securities' Insurance Corporation, Limited, and others, on a bid made at sheriff's sale. From a judgment for plaintiff, defendants bring error. Reversed with direction.

L. H. Finney, for plaintiffs in error. McGrew, Watson & Watson, for defendant in

error.

GARVER, J. This case presents a complicated condition of the matters involved, though the facts are without substantial dispute in the evidence. The only difficulty is to determine the correct legal conclusions which should be drawn from the facts, which are, in substance, as follows: October 10, 1889, three separate actions, numbered, respectively, 6,104, 6,105, and 6,106, were commenced in the district court of Wyandotte county, by the Missouri Valley Lumber Company, for the foreclosure of certain mechanics' liens on 10 lots in West End addition to the city of Argentine, in said county. In No. 6,104, J. H. Skillman was the principal defendant and the alleged owner of eight of the said lots; J. R. Bowers, another mechanic's lien claimant, being joined as a defendant. In No. 6,105, the principal.defend. ant was A. J. Heron, who was the owner of five of the lots at the time the contract for the materials was made, and when the right to the lien attached. In No. 6,106, W. T. Brooks was the principal defendant, and the alleged owner of the other five lots at the time the contract for the materials was made, and when the lien attached. Heron and Brooks, subsequently to the time when they contracted the liens foreclosed in Nos. 6,105 and 6,106, conveyed eight of these lots to Skillman, who made further and additional improvements thereon, on which liens were foreclosed in No. 6,104, The three cases

involved independent and separate contracts with the Lumber Company, and the foreclosure of separate liens. In each of these cases the plaintiffs in error were made defendants, and filed answers, setting up certain mortgage liens claimed by them upon each of the ten lots. Bowers was not a par

In

ty to, and made no appearance in, any case other than the Skillman case (No. 6,104); and in that he set up a claim for a mechanic's lien, under contract with Skillman, on the eight lots which had been conveyed to him by Heron and Brooks. January 16, 1890, judgments were rendered in all the three cases, determining that the Lumber Company was entitled to judgment against Heron for $596.20, against Brooks for $960.30; that such judgments were a first lien upon the ten lots owned by Heron and Brooks, respectively; and that the plaintiffs in error had a second lien on each of said lots for $960, by virtue of certain mortgages executed by the respective owners of the lots. the Skillman case judgment was rendered in favor of the Lumber Company for $401.68, and in favor of Bowers for $373.20, against Skillman. The judgment of the Lumber Company was adjudged a first lien, and that of Bowers a second lien, on the eight lots owned by Skillman; but both liens were found to be subject and inferior to the mortgage liens. The court decreed in each case that, in default of payment in ten days, an order of sale might issue for the sale of the property. In the Heron and Brooks cases it was ordered that the proceeds of the sales should be applied-First, to the payment of the costs; second, to the payment of the judgments in favor of the Lumber Company; and that the balance, if any, should be brought into court to be applied towards the payment and discharge of the mortgages. In the Skiliman case the court directed that the lots should be sold subject to the mortgage liens thereon, and the proceeds applied to the payment-First, of the costs; second, the judgment in favor of the Lumber Company; and, third, the judgment in favor of Bowers. Pursuant to these several judg ments, alias orders of sale were issued in each case, June 18, 1890. In the Heron and Brooks cases sales were made on July 21st, to one J. W. C. Glynn, for the sum of $2,005 in each case. Thereafter, on August 4, 1890, under the order of sale in the Skillman case, the sheriff again offered for sale, and sold, eight of the lots which he had previously sold on July 21st, in the Heron and Brooks cases. The eight lots were appraised at $1,350, subject to the mortgage liens, and sold to J. W. C. Glynn on his bid of $1,000. The sheriff made a separate return to court, in each case, of having made sales as above stated. The three sales were confirmed October 13, 1890, and sheriff's deeds executed October 15, 1890, to Glynn. On the sale made in the Skillman case, no part of the bid was paid except the costs, amounting

to something over $100. Subsequently, Bowers began an action in the court of common pleas of Wyandotte county against the sheriff, to recover the amount of his judgment against Skillman, alleging the failure of the sheriff to pay the same out of the proceeds which the return on the order of sale showed he had received from the sale in that case. Judgment was rendered against the sheriff on the pleadings in that case, and the same was paid by him. In this action it was sought to recover from Glynn, and from the plaintiffs in error, for whom it was alleged Glynn was acting as agent in making his bid, the sum which the sheriff was required to pay Bowers. The court rendered a personal judgment, as prayed for, against all the defendants, and adjudged the same to be a first and prior lien on the lots sold under the order of sale issued in the Skillman case.

1. Various matters were discussed in the brief of counsel for plaintiffs in error, and numerous errors assigned; but an examination of the record convinces us that the entire controversy can be disposed of by the consideration of two or three general propositions. It is objected at the outset that the plaintiff Bowling cannot maintain this action, for the reason that his term of office as sheriff expired before this action was commenced. We cannot agree with counsel on this proposition. So far as there is a right to sue to recover a bid, made and accepted at a judicial sale, which the purchaser failed to pay, it is a right growing out of the contract relation existing between the officer and such bidder. By returning a sale as made without having demanded and received payment of the bid, and by permitting the sale to be confirmed on such return, the sheriff became liable to a judgment creditor interested in the proceeds of the sale, the same as if the bid had been paid. In such proceedings against the officer, he may not, as a rule, contradict his return. Ferguson v. Tutt, 8 Kan. 370; Studebaker v. Johnson, 41 Kan. 326, 21 Pac. 271. This, however, does not affect the previous contract of sale as between the officer and the purchaser. The officer becomes liable to the judgment creditor, because it is his duty to demand and receive the purchase money at the time of the sale; and the law does not permit him, when called to account for such official act, to contradict his solemn return, showing the performance of duty, for the purpose of shielding himself behind a failure to perform such duty. In making a judicial sale, the officer, in a sense, stands between the several parties as a representative of all, and an accepted bid is regarded as so far a personal contract between the purchaser and the officer that the latter may enforce it in his own name. Walker v. Braden, 34 Kan. 660, 9 Pac. 613; Armstrong v. Vroman, 11 Minn. 220 (Gil. 142); Gaskell v. Morris, 7 Watts & S. 32, 39; Bell v. Owen, 8 Ala. 312: Nichol v. Ridley, 5 Yerg. 63;

Jones v. Null, 9 Neb. 254, 2 N. W. 350. The right to enforce such contract does not go to the successor in office of the sheriff. His successor could not, in any way, be held responsible for the nonpayment of the bid, and has no interest, officially or otherwise, in the indemnity to his predecessor on account of the payment of the money to a judgment creditor. The sheriff's official connection with the matter has terminated by payment. Any proceedings he may thereafter institute against the delinquent bidder is for the purpose of securing a personal indemnity to himself, and is not dependent upon the continuance of his official character.

2. The petition in this case alleges that J. W. C. Glynn acted, in making the purchase of the lots, as agent and trustee of the English & American Mortgage Company and of the Trustees', Executors' & Securities' Corporation, and that the purchase was made in reality for such companies. After a careful examination of the record, we are unable to find anything which tends to support this allegation with reference to the latter company. On the contrary, the evidence shows that the Trustees' Company's connection with these matters was only that of a trustee of an express trust; that it merely held such mortgage securities as were deposited with it by the English & American Mortgage Company as security for debentures sold to other parties; or that it purchased from the Mortgage Company certain mortgages which the latter company had taken in its own name. The mortgages which were adjudged to be a lien upon these lots were held either as owner or as trustee (the evidence does not show which) by the Trustees' Company at the time of the several foreclosures of the mechanics' liens. The English & American Mortgage Company (a separate corporation) generally looked after the foreclosure proceedings in which the Trustees' Company was interested, and employed the attorneys who appeared therein. That was done in the cases referred to in this case, and the attorneys so employed filed answers setting up the mortgage liens. The extent of the authority of the Mortgage Company in such cases is not shown; neither does it appear that the Trustees' Company had any knowl edge, at any time, of the result of these particular foreclosures. At the time of the sale, Glynn, who purchased the lots, was in the employ of the English & American Mortgage Company, and subsequently, for a consideration of $150, conveyed six of the lots to Allison Z. Mason, trustee. The other two lots were conveyed by him to a Mrs. Hamilton, whose prior connection, if any, with these matters, is not shown. The English & American Mortgage Company failed some time before this action was commenced, and Peter McMasters was appointed, December 21, 1892, as receiver of its assets and business. Allison Z. Mason was trustee for the Mortgage Company and for the receiver, but we are