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pursue and extend this business. The scholarships entitled the owner thereof to certain books and instruction, and when paid for were transferable. It is true that the books and instruction papers were prepared and for warded to the owner of the scholarship from another state, but the securing of the order therefor and a part payment in advance were done through an agent in this state. This agent was doing business in Kansas, not his own business as principal, but the company's business as its agent. Hence the company was doing business in Kansas.
We are unable to distinguish this case in principle from Deere v. Wyland, 69 Kan. 255, 76 Pac. 863, and on the authority of that case and the authorities there cited the judgment is affirmed.
JOHNSTON, C. J., and GREENE, BURCH, MASON, and GRAVES, JJ., concur.
PORTER, J. (dissenting). The business of plaintiff was not the disposal of scholarships, but the teaching by correspondence of various branches of learning. The sale of the certificate entitled the purchaser thereof to receive instruction, and was a mere incident of the business. When preliminary examinations of applicants for admission to an eastern university are conducted in Kansas, and certificates issued, the university is not transacting its principal business here, nor would the fact that it received from its agent here the matriculation fee and delivered its certificate here make the transaction a doing of business in the state within the statute requiring foreign corporations seeking to do business in the state to make application for permission to do so. The repetition of the transaction does not make it, in my opinion, any the less a mere incident of the principal business of the corporation.
(77 Kan. 819)
ARNOLD v. HOPPER. (Supreme Court of Kansas. July 5, 1907.) 1. APPEAL-REVIEW-FINDINGS UPON CONFLICTING EVIDENCE.
The findings of fact by the trial court upon conflicting evidence will not be disturbed on appeal.
2. FRAUDS, STATUTE OF-DECLARATION WIFE OF HUSBAND'S AGENCY.
A statement made to plaintiff by defendant, a married woman, that he might treat as signed by her any notes to which her name was signed by her husband is binding upon her though not in writing, since, as it is not a promise on her part to perform anything the statute of frauds does not apply.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 16-21.
Error from District Court, Ness County, Chas. E. Lobdell, Judge.
Action by J. C. Hopper against Clara B. Arnold and J. G. Arnold. Judgment for plaintiff against Clara B. Arnold, and she brings error. Affirmed.
J. F. Wood, for plaintiff in error. Foulks & Wilson, for defendant in error.
PER CURIAM. J. C. Hopper commenced this action in the district court of Ness county to recover upon a promissory note made by J. G. Arnold and Clara B. Arnold, who were husband and wife. The husband signed the wife's name to the note. Afterwards he abandoned her and left the state. She alone was served with summons in the suit. She denied the execution of the note under oath. To avoid this answer, the plaintiff filed a reply which reads: "Second. Specially replying to the second count of said answer, he avers that prior to the time of the execution and delivery of the note sued on herein, to wit, about the month of November, 1900, the defendant Clara B. Arnold, for the purpose of inducing the plaintiff thereafter to accept notes with her name signed thereto by her husband, J. G. Arnold, and for the purpose of giving the plaintiff to know and understand that her husband had authority to sign her name to promissory notes, stated and declared to plaintiff that her said husband had authority to sign her name to said notes, and that thereafter any notes with her name so signed and delivered to plaintiff she would honor and treat as her note as fully as if she had signed the same in person, and plaintiff avers that thereafter J. G. Arnold, husband of the defendant Clara B. Arnold did execute and deliver to plaintiff a promissory note so signed with his own name and the name of his wife, and his wife recognized and honored the same as her note and obligation without objections, thereby as well as by her statements and declarations aforesaid causing plaintiff to believe that her husband had authority to sign her name to promissory notes given to plaintiff, and plaintiff says that at no time subsequent to the making of said statement of defendant Clara B. Arnold, and prior to the execution and delivery of the note in suit, did plaintiff have any knowledge or information of any kind that the said defendant Clara B. Arnold would not honor notes given to plaintiff so signed, nor did he have any knowledge or information that the defendant J. G. Arnold had no authority to sign his wife's name to notes given to plaintiff, and plaintiff avers that by reason of said statement of Clara B. Arnold and of her subsequently honoring a promissory note so signed and delivered to plaintiff he believed that her husband was by her authorized to sign such notes and so believing he accepted the note in suit so signed." The court on the trial made findings of fact which read: "I find the facts to be that the name of Clara B. Arnold was signed to the note in controversy by J. G. Arnold; that before the execution of said note the defendant Clara B. Arnold had said to J. C. Hopper in substance that he might treat as signed by her any notes to which her name was signed
by J. G. Arnold, which authority had never been revoked. I conclude that such statement by defendant was sufficient in law to render her liable upon the note sued on"and thereupon entered judgment against Clara B. Arnold for the face of the note, with interest.
These findings are challenged on on the ground that they are not sustained by the evidence. There was a sharp and decided conflict between the witnesses, and we see no reason to depart from the rule that this court will be bound by findings of fact found under such circumstances. It was suggested in argument that the statement made by the plaintiff in error to the defendant in error not being in writing was in violation of the statute of frauds and void. An examination of it, however, will show that it does not amount to a contract or promise on her part to do or perform anything, but is merely a declaration that J. G. Arnold, her husband, was authorized to execute promissory notes in her name. This is the real purport of the statement made by her, and the defendant in error relied thereon when he accepted the notes so executed. The statute of frauds does not, therefore, apply. Judgment is affirmed.
(76 Kan. 333)
REEVES & CO. v. BASCUE. (Supreme Court of Kansas. July 5, 1907.) 1. EXEMPTIONS-TOOLS AND IMPLEMENTS.
A traction engine and the saws, belt, carrier, and other appliances commonly used in connection with such an engine for sawing logs and making lumber are tools and implements within the meaning of subdivision 8. § 3018. Gen. St. 1901, and are exempt to an owner who is a resident of the state and the head of a family, where they are necessary to and are personally used by him in carrying on the business of sawing logs and converting them into lumber. [Ed. Note.-For cases in point, see Cent. Dig. vol. 23. Exemptions. § 56.]
2. CHATTEI MORTGAGE-EXEMPT PROPERTYSIGNATURE OF WIFE.
A mortgage, given upon such appliances by the owner, without the consent or signature of
his wife, is invalid.
[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Exemptions, § 110.]
(Syllabus by the Court.)
Error from District Court, Crawford County: Arthur Fuller, Judge.
Action by Reeves & Co. against D. Bascue. Judgment for defendant, and plaintiff brings error. Affirmed.
a chattel mortgage on the machinery in controversy. He failed to make one of the payments when it became due, and the plaintiff thereupon secured possession of the property under a writ of replevin. The principal defense made by Bascue was that the chattel mortgage under which the plaintiff claimed the right of possession was void. The basis of this claim was that he was a married man, the head of a family, that the property was exempt, and that, as his wife did not join him in the execution of the chattel mortgage, it was void. The trial resulted in a judgment in favor of the defendant for the possession of the property, or its value placed at $650, and also for $357.50 as damages for the wrongful detention of the property.
The plaintiff complains and contends that the engine and other appliances for sawing lumber is a manufacturing plant, and cannot be classed as the necessary tools and implements of the defendant's business. His principal business, it appears, is sawing timber into lumber of various dimensions and forms. He did use the traction engine in threshing for a brief time during the threshing season, but the sawing of lumber appears to have been his principal occupation. Aside from the traction engine, which is portable, the saws, carrier, belts, etc., are said to be such as can be moved in a farmer's wagon. Were they exempt? The statute provides that there shall be exempt to a resident of the state who is the head of a family "the necessary tools and implements of any mechanic, miner, or other person, used and kept in stock for the purpose of carrying on his trade or business and in addition thereto stock in trade not exceeding $400.00 in value." Gen. St. 1901, § 3018, subd. S. It will be observed that the fact that the tools and implements are large and heavy does not take them out of the operation of the statute. Neither is there any limit placed on the number, character, or value of the tools and implements protected by the exemption. It is enough that they belong to the mechanic, miner, or other person, that they are necessary and are personally used for the purpose of carrying on his trade or business. If he uses the tools and implements in person, and performs a considerable portion of the work himself, it would seem to be immaterial whether he is called a manufacturer or a mechanic.
A liberal interpretation is given to statRyan & Phillips, for plaintiff. T. J. Karr, utes of exemption, and following the one alfor defendant.
JOHNSTON, C. J. This was an action brought by Reeves & Co. to recover possession of a traction engine and sawmill used in connection with it for the sawing of lumber. Bascue purchased a part of a threshing outfit from plaintiff, and to secure payment of a portion of the purchase price made
ready placed upon this provision in Jackman v. Lambertson, 71 Kan. 138, 80 Pac. 55. the appliances in controversy must be held to be exempt. In that case a traction engine, with a separator, belts, and other parts of a threshing outfit, were held to be implements within the meaning of the exemption statute, and further that a chattel mortgage given by the owner of an outfit in which his
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. 842, 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. 482; 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.
(76 Kan. 343)
JONES v. ADAIR.
(Supreme Court of Kansas. July 5, 1907.) 1. PRINCIPAL AND AGENT-TRANSACTIONS BETWEEN.
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, §§ 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,
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 plaintiff 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
plaintiff, but the testimony offered in his behalf could not be disbelieved and disregarded on a demurrer to evidence. On that test every part of the testimony favorable to the plaintiff is deemed to be true, and every conclusion which it tends to prove is deemed to be admitted. Christie v. Barnes, 33 Kan. 317, 6 Pac. 599; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466.
The judgment will be reversed, and the cause remanded for further proceeding. All the Justices concurring.
(76 Kan. 365)
STATE V. THOMPSON. (Supreme Court of Kansas. July 5, 1907.) 1. CRIMINAL LAW-INFORMATION - INDORSEMENT OF WITNESSES.
Where a defendant is prosecuted for a violation of the prohibitory law upon an information verified positively by an Assistant Attorney General, he cannot complain that such officer is permitted to testify without his name having been indorsed thereon as a witness.
[Ed. Note. For cases in point, see C'ent. Dig. vol. 14, Criminal Law. §§ 1409. 1430.]
2. INTOXICATING LIQUORS-ILLEGAL SALEEVIDENCE.
The evidence examined, and held not to support a conviction.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors. §§ 300, 322.] (Syllabus by the Court.)
Appeal from District Court, Allen County; Oscar Foust, Judge.
Felix Thompson was convicted of maintaining a nuisance, and appeals. Reversed. Oyler & Barnes, for appellant. F. S. Jackson, Atty. Gen., John S. Dawson, Asst. Atty. Gen., and C. L. Evans, Co. Atty., for the State.
MASON, J. Felix Thompson appeals from a conviction upon a charge of maintaining a statutory nuisance by keeping a place where intoxicating liquors were unlawfully sold.
Complaint is made of the admission of the testimony of a witness whose name was not indorsed on the information. The witness in question was the Assistant Attorney General, who had verified the information by his pos tive affidavit. He was the complainant, and it was not necessary that his name should be so indorsed in order to warn the defendant to be ready to meet such testimony as he might be able to give. case is within the reason of the rule applied in State v. Bundy, 71 Kan. 779, 81 Pac. 459, where, in a prosecution under the prohibitory law based upon testimony taken before the county attorney, it was held to be unnecessary to indorse upon the information the names of witnesses whose sworn statements so obtained were attached thereto.
The further contention is made that the evidence did not support the verdict. It was sufliciently shown that a nuisance had
been maintained for some time at the place described in the information. The only evidence, however, connecting the defendant with it. was the testimony of one witness that "they said" it was his, and that he had seen him there "standing around," "not doing anything in particular," and of another that four days after the information was filed the defendant was found there acting as proprietor. The defendant, of course, could not be convicted upon rumor. The 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 presumption that he was its keeper before the prosecution was begun arose from a showing that such relation existed four days later. Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843; State v. Durein, 70 Kan. 1, 7, 78 Pac. 152.
The judgment is therefore reversed. All the Justices concurring.
PORTER, J. May a county attorney who has been employed by the board of county commissioners to represent the county in litigation in the federal courts in which the county is a party recover fees for his services performed under such contract where the federal court was held in his county? This is the sole question for determination.
Galen Nichols, while county attorney of Shawnee county, was employed by the board of county commissioners to represent the board in the Circuit Court of the United States in a suit brought against the county by William II. Keepers to recover $9,346 on account of extra material and labor alleged to have been furnished in the construction of the Melan bridge over the Kansas river.
The suit was pending in the federal court for eight months, and after Mr. Nichols had appeared therein a number of times, and performed services as attorney for the county, the board compromised the case and refused to allow him for his services. Hence this action. It appeared from the petition that part of the services were performed while the federal court was sitting in Leavenworth county, and part while it was sitting in Shawnee county. The trial court sustained a demurrer to that part of the petition in which it was sought to recover for services performed while the federal court was in session in Shawnee county, and plaintiff, electing to stand upon the averments of his petition in that respect, brings error.
The question has been settled in the affirmative, and the county held liable, in a case where the county attorney was obliged to attend the sessions of the federal court in another county. David J. Brewer, while county attorney of Leavenworth county, was directed by the county commissioners to perform certain services for his county in the federal court. He performed the services, and the county then refused to pay him for them. He brought suit, and this court held that he was entitled to recover. County of Leavenworth v. Brewer, 9 Kan. 307. In that case the services were performed outside of the county, the federal court sitting at the time in Shawnee county. In Gillett v. Com'rs of Lyon Co., 18 Kan. 410, the county was held liable for services of the county attorney rendered outside his county in two suits, one pending in the Supreme Court, and one in Harvey county. To the same effect, see Huffman v. County of Greenwood, 25 Kan. 64.
The Brewer Case was decided in 1872, and defendant in error contends that, while it was good law then, it is no longer the law, for the reason that the Legislature of 1897 repealed the act fixing the salaries of county attorneys and enacted a new provision by which the salaries allowed should be in full compensation for all services performed. Gen. St. 1868, c. 25, § 139, reads: "The county attorneys of the several counties of this state shall be allowed by the board of county commissioners, as compensation for their services, a salary as follows." The language of Acts 1897, p. 276, c. 131, § 7, is: "The county attorneys of the several counties of the state shall be allowed, by the board of county commissioners of their respective counties, the following salaries per annum, as full compensation for all services performed." From the employment of the words "full compensation for all services performed" it is seriously argued that the Legislature had in mind the foregoing decisions, and intended thereby to establish a different rule, so that thereafter a county attorney should not be permitted to recover for services performed outside his county. If such was the legislative intent, it was certainly not expressed in apt and appropriate language. Two years lat
er the Legislature of 1899 in re-enacting the same law dropped the word "full" before "compensation" and might have omitted the word "all" before "services" without the slightest change in sense or meaning. We cannot believe that the language used in the act of 1868 meant anything less than full compensation for all services performed, or that the use of the explicit terms "full" and "all" in the act of 1897 added anything of substance to the old law or changed its sense or meaning.
This case is ruled by the David J. Brewer Case, unless the fact that the federal court happened to sit in the county where Galen Nichols was county attorney, thus rendering it unnecessary for him to go outside his county while representing the board in the federal court, is a circumstance which calls for a different rule. Section 136, c. 25, of the General Statutes of 1868, which prescribes the duties of county attorneys, is still the law, and reads as it read when the Brewer Case was decided. It still in general terms defines the duties of county attorneys as follows: "It shall be the duty of the county attorney to appear in the several courts of their respective counties, and prosecute or defend on behalf of the people all suits, applications, or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested." The "courts of their respective counties" was held in the Brewer Case not to have reference to the courts of the United States. And we are of the opinion that, without extending the doctrine of that case beyond its logical conclusions, a county attorney who is directed by the county board to defend or represent his county in litigation pending in the United States court may recover for such services, notwithstanding at the time the services are performed such court may be held in the same county. No matter where a court of the United States may sit, it is no sense one of the courts of the county where it sits. The services performed by the county attorney in the courts of the United States are not those which his duties or the law require him to perform. If the board employ or direct him to act for the county in such courts, the county is liable to him for the services he performs under such employment or direction, except the giving to the board of advice in respect to the litigation.
The sittings of the courts of the United States for the district of Kansas are frequently changed from one county to another as the centers of population and business change. The construction which defendant in error contends for would not give the statutes fixing the duties and compensation of county attorneys uniform operation. The county of Wyandotte, for instance, where the courts of the United States are frequently held, might become involved in a vast amount of litigation in those courts, and the county attorney