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pursue and extend this business. The scholar. J. F. Wood, for plaintiff in error. Foulks ships entitled the owner thereof to certain & Wilson, for defendant in error. books and instruction, and when paid for were transferable. It is true that the books PER CURIAM. J. C. Hopper commenced and instruction papers were prepared and for

this action in the district court of Ness counwarded to the owner of the scholarship from ty to recover upon a promissory note made another state, but the securing of the order by J. G. Aruold and Clara B. Arnold, who therefor and a part payment in advance were husband and wife. The husband signwere done through an agent in this state. ed the wife's name to the note. Afterwards This agent was doing business in Kansas, not he abandoned her and left the state. She his own business as principal, but the com- alone was served with summons in the suit. pany's business as its agent. Hence the com- She denied the execution of the note under pany was doing business in Kansas.

oath. To avoid this answer, the plaintiff We are unable to distinguish this case in filed a reply which reads: "Second. Speprinciple from Deere v. Wyland, 69 Kan. 255, cially replying to the second count of said 76 Pac. 863, and on the authority of that case answer, he avers that prior to the time of and the authorities there cited the judgment the execution and delivery of the note sued is affirmed.

on herein, to wit, about the month of No

vember, 1900, the defendant Clara B. Arnold, JOHNSTON, C. J., and GREEXE, BURCH, for the purpose of inducing the plaintiff MASON, and GRAVES, JJ., concur.

thereafter to accept notes with her name

signed thereto by her husband, J. G. Arnold, PORTER, J. (dissenting). The business of and for the purpose of giving the plaintiff plaintiff was not the disposal of scholarships, to know and understand that her husband but the teaching by correspondence of various had authority to sign her name to promisbranches of learning. The sale of the cer- sory notes, stated and declared to plaintiff tificate entitled the purchaser thereof to re- that her said husband had authority to sign ceive instruction, and was a mere incident of her name to said notes, and that thereafter the business. When preliminary examina-. any notes with her name so signed and detions of applicants for admission to an east- livered to plaintiff she would honor and treat ern university are conducted in Kansas, and as her note as fully as if she had signed the certificates issued, the university is not trans- same in person, and plaintiff avers that acting its principal business here, nor would thereafter J. G. Arnold, husband of the dethe fact that it received from its agent here fendant Clara B. Arnold did execute and dethe matriculation fee and delivered its cer- liver to plaintiff a promissory note so signed tificate here make the transaction a doing of with his own name and the name of his business in the state within the statute re- wife, and his wife recognized and honored quiring foreign corporations seeking to do the same as her note and obligation without business in the state to make application for objections, thereby as well as by her statepermission to do so. The repetition of the ments and declarations aforesaid causing transaction does not make it, in my opinion, plaintiff to believe that her husband had auany the less a mere incident of the principal thority to sign her name to promissory notes business of the corporation,

given to plaintiff, and plaintiff says that at no time subsequent to the making of said

statement of defendant Clara B. Arnold, and (77 Kan. 819)

prior to the execution and delivery of the ARNOLD V. HOPPER.

note in suit, did plaintiff have any knowl

edge or information of any kind that the (Supreme Court of Kansas. July 5, 1907.)

said defendant Clara B. Arnold would not 1. APPEAL-REVIEW-FINDINGS UPON CONFLICTING EVIDENCE.

honor notes given to plaintiff so signed, nor The findings of fact by the trial court upon did he have any knowledge or information conflicting evidence will not be disturbed on ap- that the defendant J. G. Arnold had no aupeal.

thority to sign his wife's name to notes given 2. FRAUDS, STATUTE OF-DECLARATION BY WIFE OF HUSBAND'S AGENCY.

to plaintiff, and plaintiff avers that by reaA statement made to plaintiff by defendant, son of said statement of Clara B. Arnold and a married woman, that he might treat as signed of her subsequently honoring a promissory by her any notes to which her. name was signed

note so signed and delivered to plaintiff he by her husband is binding upon her though not in writing, since, as it is not a promise on her

believed that her husband was by her aupart to perform anything the statute of frauds thorized to sign such notes and so believing does not apply.

he accepted the note in suit so signed." The [Ed. Note. For cases in point, see Cent. Dig.

court on the trial made findings of fact vol. 23, Frauds, Statute of, ss 16–21.

which read: “I find the facts to be that the Error from District Court, Ness County, name of Clara B. Arnold was signed to the Chas. E. Lobdell, Judge,

note in controversy by J. G. Arnold; that beAction by J. C. Hopper against Clara B.fore the execution of said note the defendant Arnold and J. G. Arnold. . Judgment for ! Clara B. Arnold had said to J. C. Hopper in plaintiff against Clara B. Arnold, and she substance that he might treat as signed by brings error. Affirmed.

her any notes to which her name was signed


by J. G. Arnold, which authority had nerer: a chattel mortgage on the machinery in conbeen revoked. I conclude that such state- troversy. He failed to make one of the ment by defendant was sufficient in law to payments when it became due, and the plainrender her liable upon the note sued on"- tiff thereupon secured possession of the propand thereupon entered judgment against erty under a writ of replevin. The principal Clara B. Arnold for the face of the note, defense made by Bascue was that the chattel with interest.

mortgage under which the plaintiff claimed These findings are challenged on

on the the right of possession was void. The basis ground that they are not sustained by the of this claim was that he was a married evidence. There was a sharp and decided man, the head of a family, that the property conflict between the witnesses, and we see was exempt, and that, as his wife did not no reason to depart from the rule that this join him in the execution of the chattel court will be bound by findings of fact found · mortgage, it was void.

mortgage, it was void. The trial resulted under such circumstances. It was suggested in a judgment in favor of the defendant for in argument that the statement made by the the possession of the property, or its value plaintiff in error to the defendant in error placed at $630, and also for $337.50 as damnot being in writing was in violation of the ages for the wrongful detention of the propstatute of frauds and void. An examina- erty. tion of it, however, will show that it does The plaintiff complains and contends that not amount to a contract or promise on her the engine and other appliances for sawing part to do or perform anything, but is mere- lumber is a manufacturing plant, and cannot ly a declaration that J. G. Arnold, her hus- be classed as the necessary tools and imband, was authorized to execute promissory plements of the defendant's business. His notes in her name. This is the real pur- principal business, it appears, is sawing timport of the statement made by her, and the ber into lumber of various dimensions and defendant in error relied thereon when he forms. He did use the traction engine in accepted the notes so executed. The statute threshing for a brief time during the threshof frauds does not, therefore, apply.

ing season, but the sawing of lumber apJudgment is affirmed.

pears to have been his principal occupation. Aside from the traction engine, which is

portable, the saws, carrier, belts, etc., are (76 Kan. 333)

said to be such as can be moved in a farmREEVES & CO. v. BASCUE.

er's wagon. Were they exempt? The stat(Supreme Court of Kansas. July 51907.) ute provides that there shall be exempt to 1. EXEMPTIONS-TOOLS AND IMPLEMENTS.

a resident of the state who is the head of a A traction engine and the saws, belt. car- family “the necessary tools and implements rier, and other appliances commonly used in con- of any mechanic, miner, or other person, used nection with such an engine for sawing logs and making lumber are tools and implements

and kept in stock for the purpose of carrywithin the meaning of subdivision 8. $ 3018,

ing on his trade or business and in addiGen. St. 1901, and are exempt to an owner who tion thereto stock in trade not exceeding is a resident of the state and the head of a fam

$100.00 in value.” Gen. St. 1901, § 3018, ily, where they are necessary to and are per

subd. S. It will be observed that the fact sonally used by him in carrying on the business of sawing logs and converting them into lumber. that the tools and implements are large and

[Ed. Note.-For cases in point, see Cent. Dig. heavy does not take them out of the operavol. 23, Exemptions, $ 56.]

: tion of the statute. Neither is there any 2. CHATTEI MORTGAGE-EXEMPT PROPERTY- limit placed on the number, character, or SIGNATURE OF WIFE.

value of the tools and implements protected A mortgage, given upon such appliances by the owner, without the consent or signature of

by the exemption. It is enough that they his wife, is invalid.

belong to the mechanic, miner, or other perEd. Note.For cases in point, see Cent. Dig. son, that they are necessary and are pervol. 23, Exemptions, $ 110.]

sonally used for the purpose of carrying (Syllabus by the Court.)

on his trade or business. If he uses the

tools and implements in person, and perError from District Court, Crawford Coun

forms a considerable portion of the work ty: Arthur Fuller, Judge.

himself, it would seem to be immaterial Action by Reeves & Co. against D. Bas

whether he is called a manufacturer or a cue. Judgment for defendant, and plain

mechanic. tiff brings error. Affirmed. .

A liberal interpretation is given to statRyan & Phillips, for plaintiff. T. J. Karr, 1 utes of exemption, and following the one alfor defendant.

ready placed upon this provision in Jack

man v. Lambertson, 71 Kan. 138, 80 Pac. 5.. JOHNSTON, C. J. This was an action the appliances in controversy must be held brought by Reeves & Co. to recover posses- to be exempt. In that case a traction engine, sion of a traction engine and sawmill used with a separator, belts, and other parts of a in connection with it for the sawing of lum- i threshing outfit, were held to be implements ber. Bascue purchased a part of a thresh- ; within the meaning of the exemption stating outfit from plaintiff, and to secure pay- ute, and further that a chattel mortgage gir. ment of a portion of the purchase price made en by the owner of an outfit in which bis

wife did not join was invalid. In another case it was held that a printing plant used by the head of a family for printing a newspaper, a business to which he devoted the greater part of his time, some of the work being done by himself, but the larger part by his employés, constituted tools and implements within the meaning of the statute and was exempt. Bliss v. Vedder, 34 Kan. 57, 7 Pac. 599, 55 Am. Rep. 237. The engine and sawmill being exempt, the mortgage given thereon, without the consent or signature of Bascue's wife, is without validity, and gave Reeves & Co. no right of possession. Gen. St. 1901, § 4255; Skinner v. Bank, 63 Kan. 812, 66 Pac. 997; Alexander v. Logan, 65 Kan. 505, 70 Pac. 339; Jackman v. Lambertson, supra.

The objection to striking out a portion of the plaintiff's reply is without merit, and we find nothing substantial in the objections made to the rulings on the admission of testimony. The defendant asked for damages resulting from the wrongful taking and de tention of the property, and was entitled to show and recover the usable value of the property from the time of the taking up to the date of judgment. Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282; Werner v. Graley, 54 Kan. 383, 38 Pac. 432; Bank v. Showers, 65 Kan. 431, 70 Pac. 332. He was also entitled to recover for the injury to the property while it was unlawfully detained.

There was sufficient proof to sustain the findings of the court, and its judgment will be affirmed. All the Justices concurring.

JOHNSTON, C. J. This was an action by Pate S. Jones to enjoin Wit Adair from interfering with the use and enjoyment of a sewer connecting with his hotel, and which he claims to own. He alleged and offered proof to show that in 1890 Stephen F. Jones, who was an owner of a hotel in Strong City, desired to construct a sewer from the hotel to the Cottonwood river. To do so it was necessary to pass through the streets of Strong City and across the right of way of the A., T. & S. F. Railway Company. Wit Adair, who was then an employé and agent of Stephen F. Jones, procured the consent of the city to lay a sewer along the streets, and entered into a contract with the railway company to lay it under the tracks of the railroad. Although these things were done for Stephen F. Jones, and in order that he might build his sewer, the privileges were taken and the contracts made in the name of Adair, instead of that of his employer. Stephen F. Jones furnished the money and built the sewer, and it was thereafter used in connection with the hotel. In 1903 Stephen F. Jones conveyed the hotel and its appurtenances to the plaintiff, Pate S. Jones, and some time later Adair, claiming to own the sewer, threatened to disconnect it from the hotel, and hence the present action was brought. When plaintiff's evidence was introduced, the trial court sustained a demurrer to his evidence, dissolved the temporary restraining order, and denied the permanent injunction sought by plaintiff.

The testimony fairly tended to sustain the plaintiff's claim of ownership in the sewer and a right to its use, and hence the ruling of the court cannot be upheld. It was shown, without contradiction, that the sewer, which was an appurtenance of the hotel, was built for the owner, and that the cost of construction was paid by him. It was done, it is true, under the direction of Adair, but the evidence is that in doing so he was acting as the agent of the hotel proprietor. He could not, while acting for his principal, and investing his principal's money in an improvement of the hotel, very well acquire ownership in it. The mere fact that the contract made and the privilege obtained in behalf of his principal were in his own name did not divest the principal of his property, nor give the agent an ownership which he could assert against the principal or one holding under him. Butler v. Kaulback, 8 Kan. 668.

So far as the agent is concerned, the contracts, although made in his own name, are in law the contracts of his principal, and it does not appear that the railway company or the city with whom the contracts were made are disputing the rights of the plaintif under them. The agent may have been entitled to be reimbursed for expenses incurred in the transactions, but not to the ownership of the property acquired for his principal and paid for by his principal's money. The trial court may have discredited the testimony of the

(76 Kan. 343)


An agent of a proprietor of a hotel who constructs a drain or sewer to be used in connection with the hotel for and at the expense of the proprietor does not become the owner of the appurtenance merely because the contracts for the privilege of laying the sewer in the streets of the city and over the land of another were made in the name of the agent instead of his principal. 2. TRIAL-DEMURRER TO EVIDENCE.

On a demurrer to plaintiff's evidence, the court may not weigh conflicting testimony, or disbelieve and disregard that offered in his behalf which tends to sustain his cause of action.

[Ed. Note.- For cases in point, see Cent. Dig. vol. 46, Trial, 88 354, 356.)

(Syllabus by the Court.)

Error from District Court, Chase County ; J. Harvey Frith, Judge pro tem.

Action by Pate S. Jones against Wit Adair. Judgment for defendant, and plaintiff brings error. Reversed.

Madden & Doolittle and G. M. Dameron, for plaintiff in error. Grisham & Swan, for defendant in error,

plaintiff, but the testimony offered in his been maintained for some time at the place behalf could not be disbelieved and disre- described in the information. The only evigarded on a demurrer to evidence. On that dence, however, connecting the defendant test every part of the testimony favorable to with it, was the testimony of one witness the plaintiff is deemed to be true, and every that "they said" it was his, and that he had conclusion which it tends to prove is deemed seen him there "standing around," "not doto be admitted. Christie r. Barnes, 33 Kan. ing anything in particular," and of another 317, 6 Pac, 1599; Buoy v. Milling Co., 68 Kun. that four days after the information was 130, 75 Pac. 466.

filed the defendant was found there acting The judgment will be reversed, and the as proprietor. The defendant, of course, cause remanded for further proceeding. All could not be convicted upon rumor. The the Justices concurring.

mere fact of his presence in a place where the law was being violated had no tendency

to connect him with its management, and no (76 Kan. 305)

presumption that he was its keeper before STATE v. THOMPSON.

the prosecution was begun arose from a (Supreme Court of Kansas. July 5, 1.007.) showing that such relation existed four days 1. CRIMINAL LAW-INFORMATION - INDORSE- later. Topeka v. Chesney, 66 Kan. 480, 71 NEXT OF WITXESSES.

Pac. 813; State v. Durein, 70 Kan. 1, 7, 78 Where a defendant is prosecuted for a vio

Pac. 152. lation of the prohibitory law upon an information verified positively by an Assistant Attorney The judgment is therefore reversed. All General, he cannot complain that such officer the Justices concurring. is permitted to testify without his name having been indorsed thereon as a witness.

[Ed. Note.-For cases in point, see ('ent. Dig. vol. 14. Criminal Law, SS 1-102, 1430.]



SIIAWNEE COUNTY. The evidence examined, and held not to support a conviction.

(Supreme Court of Kansas. July 5, 1907.)

( [Ed. Note.--For cases in point, see Cent. Dig. DISTRICT AND PROSECUTING ATTORNEYS — vol. 29, Intoxicating Liquors, $$ 300, 322.)

COMPENSATION. (Syllabus by the Court.)

A county attorney who is directed by the

board of county commissioners to defend or Appeal from District Court, Allen County; | United States court may recover for such serv

represent his county in litigation pending in the Oscar Foust, Judge.

ices, notwithstanding at the time the services Felix Thompson was convicted of main- are performed such court may be held in the taining a nuisance, and appeals. Reversed.

same county.

[Ed. Yote. For cases in point, see Cent. Dig. Oyler & Barnes, for appellant. F. S. vol. 17, District and Prosecuting Attorneys. $ Jackson, Aity. Gen., Jolin S. Dawson, Asst.

2.2.] Atty. Gen., and C. L. Evans, Co. Atty., for (Syllabus by the Court.) the State.

Error from District Court, Shawnee CounJASOX, J. Felix Thompson appeals from

ty: .1. W. Dana, Judge. a conviction upon a charge of maintaining

Action by Galen Nichols against the board

of county commissioners of Shawnee county. a statutory nuisance by keeping a place where intoxicating liquors were unlawfully

Judgment for defendant on demurrer, and plaintiff brings error,

brings error. Reversed and resold.

manded. Complairt is made of the admission of the testimony of a witness whose name was

Galen Nichols, in pro. per. J. J. Scheneck, not indorsed on the information. The wit- for defendant in error. ness in question was the Assistant Attorney General, who had verified the informaiion

PORTER, J. Jay a county attorney who by his pos tive affidavit. He was the com- has been employed by the board of county plainant, and it was not necessary that his commissioners to represent the county in litiname should be so indorsed in order to gation in the federal courts in which the Warn the defendant to be ready to meet such county is a party recover fees for his services testimony as he might be able to give. The performed under such contract where the case is witbin the reason of the rule applied federal court was held in his county? This in State v. Bundy, 71 Kan. 779, 81 Pac. -13.9, is the sole question for determination. where, in a prosecution under the prohibitory Galen Nichols, while county attorney of law based upon testimony taken before the Shawnee county, was employed by the board county attorney, it was held to be unneces- of county commissioners to represent the sary to indorse upon the information the board in the Circuit Court of the United names of witnesses whose sworn statements States in a suit brought against the county Su obtained were attached thereto.

by William II. Keepers to recover $9,316 on The further contention is made that the account of extra material and labor alleged evilence üid not support the verdict. to have been furnished in the construction of was sutliciently shown that a nuisance had the Jelan bridge over the Kansas river.

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The suit was pending in the federal court er the Legislature of 1899 in re-enacting the for eight months, and after Mr. Nichols had same law dropped the word "full" before "comappeared therein a number of times, and pensation" and might have omitted the word performed services as attorney for the coun- "all" before "services" without the slightest ty, the board compromised the case and re- change in sense or meaning. We cannot befused to allow him for his services. Hence lieve that the language used in the act of this action. It appeared from the petition 1868 meant anything less than full compenthat part of the services were performed sation for all services performed, or that the while the federal court was sitting in Leav- use of the explicit terms "full" and "all" in enworth county, and part while it was sit- the act of 1897 addled anything of substance ting in Shawnee county. The trial court to the old law or changed its sense or meansustained a demurrer to that part of the peti- ing. tion in which it was sought to recover for This case is ruled by the David J. Brewer services performed while the federal court Case, unless the fact that the federal court was in session in Shawnee county, and plain- happened to sit in the county where Galen tiff, electing to stand upon the averments of Nichols was county attorney, thus rendering his petition in that respect, brings error. it unnecessary for him to go outside his

The question has been settled in the af- county while representing the board in the firmative, and the county held liable, in a federal court, is a circunstance which calls case where the county attorney was obliged for a different rule. Section 136, c. 25, of to attend the sessions of the federal court in the General Statutes of 1868, which preanother county. David J. Brewer, while scribes the duties of county attorneys, is still county attorney of Leavenworth county, was the law, and reads as it read when the Brewdirected by the county commissioners to per- er Case was decided. It still in general form certain services for his county in the terms defines the duties of county attorneys federal court. He performed the services, as follows: "It shall be the duty of the and the county then refused to pay him for county attorney to appear in the several them. He brought suit, and this court held courts of their respective counties, and prosethat he was entitled to recover. County of cute or defend on behalf of the people all Leavenworth v. Brewer, 9 Kan. 307. In that 9

suits, applications, or motions, civil or crimcase the services were performed outside of inal, arising under the laws of this state, in the county, the federal court sitting at the which the state or their county is a party or time in Shawnee county. In Gillett v. Com'rs interested.” The "courts of their respective of Lyon Co., 18 Kan. 410, the county was counties" was held in the Brewer Case not held liable for services of the county attorney to have reference to the courts of the United rendered outside his county in two suits, States. And we are of the opinion that, one pending in the Supreme Court, and one without extending the doctrine of that case in Harvey county. To the same effect, see beyond its logical conclusions, a county atHuffman v. County of Greenwood, 25 Kan. 64. torney who is directed by the county board

The Brewer Case was decided in 1872, and to defend or represent his county in litigation defendant in error contends that, while it pending in the United States court may rewas good law then, it is no longer the law, cover for such services, notwithstanding at the for the reason that the Legislature of 1897 time the services are performed such court repealed the act fixing the salaries of county may be held in the same county. No matter attorneys and enacted a new provision by where a court of the United States may sit, which the salaries allowed should be in full it is no sense one of the courts of the county compensation for all services performed. where it sits. The services performed by Gen. St. 1868, c. 25, $ 139, reads: "The the county attorney in the courts of the county attorneys of the several counties of United States are not those which his duties this state shall be allowed by the board of or the law require him to perform. If the county commissioners, as compensation for board employ or direct him to act for the their services, a salary as follows." The lan- county in such courts, the county is liable to guage of Acts 1897, p. 276, c. 131, § 7, is: him for the services he performs under such "The county attorneys of the several counties employment or direction, except the giving of the state shall be allowed, by the board to the board of advice in respect to the litigaof county commissioners of their respective tion. counties, the following salaries per annum, The sittings of the courts of the United as full compensation for all services perform- States for the district of Kansas are frequented.” From the employment of the words ly changed from one county to another as “full compensation for all services performed" the centers of population and business change. it is seriously argued that the Legislature had The construction which defendant in error in mind the foregoing decisions, and intended contends for would not give the statutes fixthereby to establish a different rule, so that ing the duties and compensation of county thereafter a county attorney should not be attorneys uniform operation. The county of permitted to recover for services performed Wyandotte, for instance, where the courts of outside his county. If such was the legisla- the United States are frequently held, might tive intent, it was certainly not expressed in become involved in a vast amount of litigaapt and appropriate language. Two years lat- tion in those courts, and the county attorney

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