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obligation; and, so far as the second propo

(76 Kan. 360) sition is conuerned, while the suretes might

DALB v. VCCOY. be held to take notice that the Legislature (Supreme Court of Kansas. July 5, 1907.) could extend the term, they would not be APPEAL-REVIEW-GRAXT OF NEW TRIAL. required to take notice that the Legislature Where a district court properly sets aside in such an event would make no provision

a verdict in favor of the defendant on the ground for the giving of a bond by the treasurer for

of misconduct of the jury, and grants il new

trial, this (riirt, pending such new trial, cannot, the extended term. The sureties hail a right at the instance of the defendant, reverse the to take notice of the law as it existed, and to decision of the district court and direct a judgcontract with reference to the law as it ex

ment in favor of the defendant upon the merits

of the case. istel; that is, the law which would naturally

(Syllabus by the Court.) be in their minds when they entered into the ('ontract. And the idea that they would at

Error from District Court. Shawnee Counsuch a time enter into a speculative calculation

ty; A. W. Dana, Judge. of what the law might be in the future, and Action by David J. McCoy against Ilenry shape their contract with reference to such

Daub. Motion by plaintiff" to set aside verpossible change, is a strained one. The law dict for defendant. From an order granting at that time made the office one of a definite a new trial, defendant brings error. Af term. That term was two years, and the

firmed. sureties had a right to, and no doubt did,

Ilazen & Gaw, for plaintiff in error. Rohtake that law into consideration, and that

ert D. Garver, for defendant in error. was the law that was imported into their contract. There is no doubt that the central idea

GRAVES, J. This was an action to recover was that the term was for two years. This

damages for breach of contract, commenced in was the law. This was the ordinary state of

the district court of Shawnee county. On the affairs, and the ordinary time for which

trial the defendant recovered a verdict. On bonds for county officers were given. A man

motion of the plaintiff, the verdict was set might willir.gly go on a bond for two years

aside, and a new trial granted. The defenwho would hesitate or absolutely refuse to

int brings the case here and asks this court go on for a longer period.”

to reverse the order of the court granting it We think the view taken by both the ref

new trial, and, in addition thereto, to direct it eree and the trial court as to the nonliability | judgment in his favor. of the sureties is in accordance with sound

The new trial was granted on account of reason, as well as with the weight of author

misconduct of the jury during their deliberaity. The question as to the sheriff himself tions. The plaintiff in error insists that the howerer, must be decided upon other con

verdict was right, regardless of the methods siderations. While the petition necessarily by which it was reached. In fact, he claims states facts sufficient to constitute a cause of

that, under the law, the plaintiff has no right action against him for the violation of his

to recover against the defendant in any view official duty, if he is to be held in this pro- of the case. But the question for the conreeding, it must be upon the bond itself, since

sideration of this court is, did the district it is only by reason of declaring upon that

court err in granting a new trial on the that the plaintiff was able to proceed against ground of miscondurit of the jury? We think him and the bondsmen in the same action.

not. This is as far as we need to inquire. He stands upon a very different footing from

A new trial has been granted, and this court that of the sureties. He can invoke no liber

cannot assume that the trial court will not ality of construction or leniency of treatment.

administer the law correctly upon the new Moreover, while the bond was in a sense a

trial. Until the case is finally disposed of contract even as to him, he executell it in

by the trial court, this court cannot review compliance with the statute. as a prerequi- the case on its merits. site to his induction into office. It was on

The judgment of the district court is afhis part a mere acknowledgment of obliga

firmed. All the Justices concurring. tions which the law devolved upon him. The extension of his term was a benefit conferred rather than a burden imposed upon him. Un

(76 Kan. 31;6) like the sureties, he had it in his power to STATE v. CITY OF CLAY CENTER et al. end his responsibility at any time by resigna

(Supreme Court of Kansas. July 5, 1:907.) tion. IIe could not have taken the office

1. JUNICIPAL ('ORPORATIONS ISSI'E OF without having executed the bond, and his BOXDS-ELECTIOX XOTICE. continuing to act as sheriff was a constantly The first publication of a notice of a bond renewed assertion of its vitality. Notwith

election to be held under the provisions of chap

ter 101, p. 137, Laws 1990), authorizing certain standing the exemption of the sureties, the

cities to issue londs for natural gas, water, principal annot be heard to say that his

lighting, and heating purposes, may be made in own liabiliy upon the bond had ceased the same issue of the official newspaper which while he was in effect asserting a right under

contains the publication of the ordinance direct

ing the calling of the election. it.

2. SAME-IXJUXCTIOX. The judg'nent is atlirmed. All the Jus

The issue and sale of municipal bonds vottices concurring.

| ed for the construction of an electric light plant will not be enjoined merely because the city of expend the money to be derived from the ficials entertain and express an intention to ex- sale of the bonds when issued in equipping pend the money to be derived in equipping the plant to supply electric power to the inhabit

the proposed electric light plant to supply ants of the city.

electric power to inhabitants of the city. The (Syllabus by the Court.)

people of Clay Center voted these bonds to

raise money to be expended for a specified Error from District Court, Clay County ; purpose, and are entitled to have them issued Sam Kimbal, Judge.

and sold in execution of that purpose. If Action by the state against the city of Clay after that has been done an attempt should Center and others. Judgment for defend- be made to misappropriate the funds obtainants, and plaintiff brings error. Affirmed. ed, there will be time enough to determine F. S. Jackson, Atty. Gen., Coleman & Wil

what is a misappropriation and to interfere, liams, and John E. Hessin, for the State. F. | if necessary. P. Harkness and Dawes & Rutherford, for

The judgment of the district court denying defendants in error.

an injunction is affirmed. All the Justices

concurring. BURCH, J. The action in the district court was commenced to restrain the defend

(13 Idaho, 514) ants from issuing, selling, and delivering

OLYMPIA MINING CO. V. KERNS et al. bonds of the city in the sum of $25,000, which had been voted at a special election for the

(Supreme Court of Idaho. June 18, 1907.)

( purpose of constructing works to supply the

1. APPEAL-REHEARING – EFFECT OF GRANTinhabitants of the city with electric light.

ING. The election was held under the provisions

Where a rehearing is granted generally, the of chapter 101, p. 137, of the Session Laws

case stands as though no hearing had been had,

and all points and questions that might have of 1905. Section 2 of the act reads as fol

been presented on the original hearing may be lows: "Whenever the city council of any presented on the rehearing. such city shall desire to procure authority for [Ed. Note.-For cases in point, see Cent, Dig. the issuance of bonds under the terms of

vol. 3, Appeal and Error, $$ 3241, 3243.] this act, they shall pass an ordinance di


CONDITIONS PRECEDENT. recting the calling of an election for the sub

Where an action is brought for the specific mission of the question to the electors there- performance of a contract, in order to recover; of. Notice for such election shall state the the plaintiff must show that he has performed all amount of bonds proposed to be issued, the

of the provisions of the contract to be perform.

ed by him, or that he is able, ready, and willing purpose of the issue, and state the polling

to perform them. place or places at which the election will be [Ed. Note.-For cases in point, see Cent. Dig. beld. Said notice shall be signed by the may- vol. 44, Specific Performance, $$ 249–256.] or and city clerk and shall be published in 3. SAME. at least one newspaper for three consecutive

Where the judgment and decree does not re weeks. The first publication of said notice

quire the performance of conditions precedent

in a contract before declaring the specific perto be at least twenty days prior to the day fix- formance of the contract, the judgment will be ed for such election."

set aside. The ordinance directing the calling of the

[Ed. Note.-For cases in point, see Cent. Dig. election and the notice of the election were

vol. 44, Specific Performance, $426.] published in the same issue of the official

4. SAME.

Held, under the provisions of the contract newspaper. It is claimed that the ordinance

sued on, the appellant Kerns was entitled to rebecame effective only after publication, that ceive from the corporation stipulated to be or no authority existed to call the election until ganized one-tenth of the capital stock, fully paid after the ordinance was in force, and hence

up and nonassessable until after all the other

nine-tenths of the capital stock of the corporathat the first publication of the notice cannot tion had paid 10 cents per share to said corporabe counted. The objection is technical in the tion for the development of the mining claims extreme, and involves a refinement in respect

involved in this case. to time which the court is not inclined to

5. SAME.

In this case all of the material issues preregard. The moment the ordinance took ef

sented by the pleadings should have been deterfect authority to call the election and publish mined by the findings of fact and judgment. notice of it existed. That moment the au

6. CONTRACTS_PERFORMANCE. thority was exercised, and the notice ap

Under the provisions of said contract, K.

and C., the parties thereto, both being residents peared, and the circumstance that the two

of this state at the time the contract was, enterfacts occurred simultaneously cannot impair ed into, were to form a corporation, and as it the notice. If authority in support of the

appears from the record, C. organized the plain

tiff corporation under the laws of the state of principle be necessary, it may be found in the

Washington without the consent of K. Held, cases of Clark v. City of Janesville, 10 Wis. that the organization of the plaintiff corpora136, and Warsop v. City of Hastings, 22 Minn. tion was not a compliance with the terms of 437.

said contract and that K. had a right, under

the terms of said contract, to insist on the orOn the trial evidence was offered and re- ganization of such corporation under the laws jected to the effect that the city officials en- of the state of Idaho. tertained and had expressed an intention to (Syllabus by the Court.)

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Appeal from District Court, Shoshone | the interests of said estate in said properCounty, Ralph T. Morgan, Judge.

ties, if the same can be bought for a reaAction by the Olympia Mining Company sonable sum and upon reasonable terms, for against A. G. Kerns and others. From a the purpose of consolidating all of the injudgment for plaintiff, defendants appeal. | terests therein, and forming a mining corReversed and remanded.

poration to prospect, develop, and work said J. FI. Forney and John P. Gray, for ap

mining claims; and whereas, the party of pellants. A. E. Mayhew and E. C. Macdon.

the first part is about to leave the state of ald, for respondent.

Idaho, expecting to be absent for a period

of two months, more or less, and the sale SULLIVAN, J. This action was com- of said premises may occur during said menced by the Olympia Mining Company, a period: It is therefore mutually agreed that corporation, as plaintiff, against Abner G. the party of the second part shall offer to Kerns, Wiliam J. Hall, and the Federal purchase and purchase the interest of the Mining & Smelting Company, a corporation, estate of said decedent in said mining claims, as defendants, for the purpose of having if the same can be purchased for the apthe plaintiff corporation declared the equi- | praised value of said premises, or any less table owner of an undivided three-fourths sum, and that the party of the first part interest in the Olympia, Portland, Seattle, will assume and be responsible for the bid Alice, Olympia Fraction, Pacific, Darling, and purchase of the party of the second Diamond Fraction, and an undivided one- part, and furnish the necessary money to fourth interest in the Rose and Lincoln lode make such purchase at the time when called mining claims, all situated along Nine Mile for by the party of the second part. And creek, in Placer Center and Lalande mining in consideration of the premises, and the districts, Shoshone county, and to compel services to be so rendered by the party of the appellant Kerns to convey to the plain- the second part, it is further mutually agreed tiff corporation by good and sufficient deed that said party of the second part shall an undivided three-fourths interest in and be entitled to one-tenth of all of said mining to said mining claims, upon the payment to

claims, in which he at present has no ownerhim of $900, with interest, and upon deliv- ship. And it is further mutually agreed ery to him of 100,000 shares of the capital that upon the formation of the corporation stock of the plaintiff corporation, paid up hereinbefore referred to, which corporation to the amount of 10 cents per share, and to is to be formed as soon as practicable after compel the defendant the Federal Mining making said purchase, the party of the sec& Smelting Company to convey to the plain

ond part shall have and be entitled to onetiff an undivided one-fourth interest to each tenth of the stock of said corporation, which of said miring claims upon the payment to stock shall be fully paid up and nonassessit of $3,300, with interest thereon.

able until after all of the other nine-tenths This action is based upon the following of the stock have paid 10 cents per share contract or agreement, to wit: "This agree to said corporation for the development of ment, made and entered into on this 28th said mining claims. And as a further conday of May, 1901, by and between Clarence sideration the party of the first part hereby Cunningham, party of the first part, and A. agrees to do and perform on each of said G. Kearns, party of the second part, all of mining claims the assessment work required the city of Wallace, county of Shoshone, for the year 1901, free of expense to the parstate of Idaho, witnesseth: Whereas, the ty of the second part. And as a further estate of Edward T. Elom, deceased, is the stipulation the party of the second part owner of an undivided five-eighths of the agrees to convey to the party of the first Olympia, Seattle, Portland, Olympia Frac- part, or his assigns, all his right, title, and tion, and Alice, and an undivided one-half interest in said mining claims for the sum of the Darling, Pacific, Rose, Lincoln, and of $5,000, to be paid upon completion of Diamond Fraction, lode mining claims, sit- the purchase of the interest of said estate uated in the Placer Center and Lalande in the premises or sooner. Witness our mining districts, in the county of Shoshone, hands and seals this 28th day of May, 1901. state of Id:ho, lying between the Mammoth Clarence Cunningham. A. G. Kerns." and Sixteen to One mines, and south of the It is alleged in the complaint: That, pursuCuster mine, and the party of the second part ant to said agreement, the defendant Kerns is the owner of the other portion of the said did prosecute a proceeding in the probate mining claims, except the Rose and Lincoln; court asking for a sale of the interest of and whereas, the party of the second part Edward T. Elom, deceased, in and to said as such co-owner has petitioned the probate mining claims, and procured an order from court for an order of sale of the interest of said court on the 3d day of June, 1901, dithe estate of said deceased in said mining recting the sale thereof. That thereafter, on claims, and said petition is to be heard on the 20th day of July, said Kerns did purthe 3d day of June, 1901, and it is antici- chase at public sale the said interest for the pated that an order for the sale of said sum of $2,500 of which $300 was paid in property will be made; and whereas, it is | cash, and the remaining portion, $2,000, was the desire of the parties hereto to purchase secured by mortgage upon said mining inter

ests due and payable within one year from mining claim; the Olympia Fraction lode the date thereof, and that said sale was con- mining claim; the Darling lode mining claim; firmed thereafter by said court. That there- the Pacific lode mining claim; the Diamond after, pursu:nt to said agreement, Clarence Fraction lode mining claim; one-half of the Cunningham, the first party to said agree- Rose lode mining claim; one-half of the Linment, representing himself and his associates, coln lode mining claim-all situated on the did expend approximately the sum of $25,000 | divide between Canyon creek and the East in developing and working the said claims, Fork of Nine Mile creek, in Placer Center and they did pay the said Kerns $1,100 on and Lalande mining district, county of Shoaccount of the payment of the $5,000 due said shone, state of Idaho. Dated this 17th day Kerns under said agreement, together with of August, 1901. Witness my hand and seal. one-tenth of all of said mining claims upou A. G. Kerns. (Seal.]” That thereafter said the formation of the corporation referred to Kerns, in his own name and in fact as in said contract, which interest was repre- trustee for the said contemplated corporation, sented by 100,000 shares of the capital stock | applied for United States patents for part of of plaintiff, which stock was to be fully paid said mining claims. That in applying for up and nonassessable until after the other said patents the said Kerns acted only as nine-tenths of the stock had paid 10 cents per trustee for said corporation to be formed unshare to said corporation for the development der the terms of said agreement and declaraof said mining claims, which was the considl- tion of trust. That he was also acting as eration paid for the interests held by Kerns agent and attorney for said corporation and in said mining claims and for services to be the parties organizing the same, and that rendered by him in securing patents therefor. said parties furnished and paid all the necesThat the sum of $500, the first payment on sary expenses of said application for patent. the purchase price of said Elom's interest, That said Cunningham and bis associates, by was paid to said Kerns by the said Cunning- and with the full consent of the said Kerns, ham and his associates. That after the con- and under the terms of said agreement and firmation of said sale the administratrix of declaration of trust, continued to expend the estate of the said Elom, deceased, executed money in the development of said mining and delivered a deed to said mining interests claims up to and until about the 1st day of belonging to the estate of the said Elom to March, 1903, pursuant to said agreement, and said Kerns, grantee, and that said Kerns the said Cunningham and his associates, actmade and executed to said administratrix of ing in pursuance of said agreement and der said estate a mortgage upon said mining in- laration of trust, caused to be organized the terests to secure the payment of the balance plaintiff corporation under the laws of the due therefor. That said Kerlis took the title state of Washington, with a capital of $1,to said mining interests in trust for the cor- 000,000, divided into 1,000,000 shares, of the poration provided to be formed under the par value of $1 each. That said Kerns was terms of said agreement. That it was under- notified of said organization, and acquiescer stood and agreed between said Kerns and the in and concurred therein, and agreed to the said Cunningham and his associates that same, and made no objection thereto. That their successor in interest, the corporation to thereafter said corporation duly complied be formed, would furnish the additional mon- with all the laws of the state of Idaho auey necessary to pay for the said interests thorizing it to hold mining claims and proseand to pay the said mortgage when it became cute business in said state, and that it is necessary to pay the same in order to pro- now authorized to take and hold and contect said trust estate. That after the pur- vey real estate and to do business in said chase of said Elom's interest as aforesaid, state. That in the year 1903, after the orand after receiving deed therefor, said Kerns ganization of the plaintiff company, on acdid make, execute, and deliver a declaration count of large expenditures made by the inof trust as follows: "I, A. G. Kerns, of the corporators in the development of said mincity of Wallace, county of Shoshone, state of ing claims and in the payments made to said Idaho, do hereby declare and acknowledge Kerns by the plaintiff corporation, there was that I hold the legal title to the following in- not sufficient money in the treasury of said terests in certain mining claims in trust for company to pay said mortgage, and that said the use and benefit of a corporation to be Cunningham, who had the management of hereafter formed and to be named the Olym- the affairs of the company and was about to pia Mining Company', provided Clarence Cun- leave for a trip to Alaska, entered into an ningham, of the city of Wallace, in the county arrangement, for and on behalf of the plainof Shoshone, state of Idaho, or the said cor- tiff corporation, with J. C. Cunningham, vice poration, shall comply with the provisions of president of the company, and F. Cushing an agreement in writing, dated the 28th day Vivore and Francis Jenkins, stockholders of of May, 1901, between the said Clarence Cun- the company, that, in case payment of sail ningham and the said A. G. Kerns. The said mortgage should be insisted upon, they would mining premises being particularly described advance the money for the company to pay as follows, to wit: the Olympia lode mining the same, and notified said Kerns of suruh claim; the Portland lode mining claim; the arrangement, and directed him that, in case Seattle lode mining claim; the Alice lode payment should be insisted upon, he should

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call upon said parties for the money to pay him under the original contract between said said mortgage, and that Kerns promised to Cunningham and said Kerns, and for his do so. That on or about the 1st day of June, services as attorney as aforesaid. That the 1903, the administratrix of the estate of the plaintiff has been at all times, and is now, said Elom, deceased, did commence an action ready and willing to make said payment, to foreclose said mortgage. That said Kerus and now brings said money and stock into did not notify the plaintiff corporation, nor court to be delivered to him. Then follows said Cunningham, nor any of the officers or prayer for the relief above indicated. stockholders of the said company, but per- Many of the formal allegations of the mitted a decree and judgment of foreclosure complaint were admitted by the answer, and to be entered directing the sale of said min- denials of other allegations put in issue ing claims to pay said mortgage. That the many of its material allegations. For a sepdate of said sale was fixed, and the said i arate and second defense the defendant Kerns J. C. Cunningham, vice president of the com- sets up the transaction which Oxurred bejany, for the purpose of protecting the plain- tween him and Cunningham in detail, and tiff corporation, did advance the money for sets up the violation of said contract by the plaintiff to bid in the said property at Cunningham, in that he failed to make the the sale, and did bid the same in in his own payment required by said contract and pername for the use and benefit of the plaintiff form the work required to be performed company, and received the sheriff's certiticate by him upon said claims, and in the formaof sale, receiving the same and holding the tion of the corporation under the laws of same in trust for the plaintiff corporation up- the state of Washington, instead of under on the repayment of the amount of money the laws of the state of Idaho; that he was so paid by him, all of which was well known required to spend large sums of money in to the defendant Kerns. That thereafter, on protecting his own interests in said mining the 18th day of August, 1904, the defendant claims during the years 1903, 1904, and 190.7 Kerns, in viclation of his said trust and with because of the failure of the said Cunningintent to cheat and defraud the plaintiff, and ham to keep his part of said agreement: that in violation of the confidence reposed in him by reason of such negligence and laches by :14 attorney for the plaintiff, sold and con- said Cunningham, and his breach of said veyed to the defendant William J. Hall an agreement, he impaired the title of the deundivided or e-fourth interest in said mining fendant Kerns by making the default in (laims, and received therefor the sum of said payments and allowing the premises $3,300), and with the said money he redeemed to be sold to a stranger. The defendants said property from said sheriff's sale, and at Ilall and the Federal Mining & Smelting the same time the said Kerns entered into Company answered, denying many of the an agreement with the defendant Hall to allegations of the complaint, and as an afsell and convey to him the remaining interest | firmative defense, among other allegations, in Said claims. That at the said time said alleged that they had advanced the defendHall well knew the said property in equity ant Kerns $3,300, which sum was devoted belonged to the plaintiff, and well knew that and used in redeeming said mining property the said defendaut Kerns held the legal title from said foreclosure sale and paying the in trust for the plaintiff and had no legal necessary expenses for obtaining patents right to sell and convey the same. That said thereto; that thereafter said Kerns executIlall, in making said purchase and contract, ed a deed to said Hall, but really for the was acting as the agent for the defendant the use and benefit of said mining company, being Federal Mining & Smelting Company, and an undivided one-fourth interest in and to said company furnished the money which wils said mining claims, and that said Ilall held jaid to said Kerns as aforesaid. That in said one-fourth interest for the use and benmaking said sale to said Hall and entering efit of said mining company, and now holds into said contract with him the said Kerns the same for that purpose; that at the time violated the trust and confidence reposed in he executed said deed said Kerns entered inhim as trustee of the plaintiff for the sole to an agreement with said Hall for the purand simple purpose of defrauding the plain- chase of the remaining three-fourths interest tiff and securing to himself an additional in suid mining claims; that said contruct of sum of money. That on the 9th day of Mug, purchase was entered into for and on behalf 1923. the plaintiff corporation demanded of of said mining company; that said contracts said Kerns the deed conveying all the Olym- were made with said Kerns without any pia, Portlan.l, Seattle, Alice, Olympia Frac- knowledge, information, or belief of any tion, Darling, Pacific, and Diamond Fraction, right, title, or claim on the part of the and an undivided one-fourth interest in and plaintiff corporation in and to said mining to the Rose and Lincoln, lode mining claiios claims or any of them. It is further alleged aforesaid, and tendered to said Kerns in that the money so advanced by Hall was used lawful money of the United States $900 and to lieriert the title to said mining claims, a certificate for 1,4".0 shares of the capital and that, in case it is adjudged that the stock of the plaintiff corporation, which cor- plaintiff is the owner of said premises, silid tificate of stock was laid up to the amount defendants in cquity ought to be reimbursed of 10 cents per sbare, for all that was due fur said advances with interest thereun; and

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