And we think, notwithstanding the fact that the witness was not a civil engineer, he was perfectly competent, under his testimony, to make such a rough draft as is indicated by the plat offered. The map, it is true, indicates two subdivisions of land of 40 acres each, but any one who could discover a surveyor's corner post could sketch this map with sufficient accuracy to meet the requirements of this case. The objection, therefore, that the map itself was incompetent, by reason of the extraneous matter upon its face, not having been brought to the attention of the court, the appellants will not be allowed to avail themselves of it here. Objection is also raised to the instructions given by the court to the jury. The court instructed the jury with reference to the measure of damages, as follows: "You are instructed: That, in estimating the damages that plaintiffs have suffered by reason of the acts of the defendants, you should include in such estimate the value of the trees or timber or shrubs cut or injured or removed or destroyed, if any. That plaintiff's are entitled to have such damages as will make good the diminished value of their lands on account of the cutting, removing, injuring, or destroying of the trees, timber, or shrubs thereon. The measure of damages would be the value of the trees or timber standing upon the lands, and the diminished value of the land, if any, by reason of their having been cut or removed or injured or destroyed. That if, by reason of the cutting or removal or injuring or destroying the trees, timber, or shrubs on the land by the defendants, plaintiffs have suffered damage to their freehold and interest in the lands other than the market value of the trees standing upon the land, then you should render a verdict for plaintiffs equal to such damage, in addition to such market value of the trees or timber." It is urged by the appellants that there are two elements of damages implied in this charge, viz. the value of the timber cut, and the injury done to the land by reason of the cutting; and that the former is comprehended in the latter; and that, under the phraseology of this instruction, the jury would be misled, and would give double damages. In the judgment of the writer of this opinion, this instruction was exactly right, and is borne out by the authorities; but the judgment of the majority of this court is to the effect that the court did not lay down the proper rule for the measurement of damages, but that the jury were not misled by the instruction, and that, therefore, there should not be a reversal on that ground, since it was error without prejudice. Admitting the proposition so warmly contended for by the appellants, that, where error appears in the instructions of the court, a reversal must follow, unless it affirmatively appears from the record that no prejudice followed the error, it seems to us that the whole record in this case, and especially the verdict of the jury,

shows so conclusively that the jury did not take into consideration any injury to the freehold, but that their verdict was based entirely and exclusively on a computation of the value of the timber proven to have been removed from the land, that it would be working an injustice to the respondents to reverse this case for the error of the court in wrongly instructing the jury on this proposition.

As we have before indicated, we find no merit in the other exceptions, and as all questions of fact, including alleged settlements and payments, were passed upon by the jury in favor of the respondents, the judgment will be affirmed.

PURCHASER ON EXECUTION RIGHT TO RENTS
RENT FALLING DUE ON SUNDAY-REVIEW
ON APPEAL-PRESUMPTIONS.

1. Under Code Proc. § 519, giving the execution purchaser of premises the right of pcssession until redemption, unless they are in possession of a tenant holding under an unexpired lease, in which case he is given the right to receive the rents during the same period, such a purchaser of premises is not entitled to rents beyond the day of redemption, though the rents are payable in advance.

2. Where rent falls due on Sunday, suit therefor cannot be maintained until the next day.

3 A judgment which shows that it was rendered on the pleadings and oral admissions of the parties, which admissions do not appear on the record, will not be disturbed.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Alpheus Byers against E. S. Rothschild and others. Martin McAndrews intervened. From a judgment for defendants, plaintiff appeals. Affirmed.

Byers, McElwain & Byers, for appellant. William Martin, for respondents.

The

DUNBAR, J. This action is brought under section 519 of the Code of Procedure. complaint alleges, in substance, that on the 9th day of March, 1894, the plaintiff purchased at sheriff's sale certain described real estate in King county, state of Washington; that at said date the defendants were holding possession of said premises under an unexpired lease; that said lease was made by the former owner of the premises, one Martin McAndrews, and was so conditioned that said defendants should pay as rental for said premises the sum of $275 per month; that by the terms of said lease, and by virtue of the law, on the 1st day of April, 1894, there became due and owing from said defendants to the plaintiff, for the rent of said premises, for the month of April, 1894, the

sum of $275; alleged demand, nonpayment, and demand for judgment for the said sum of $275 and costs of the action. Rothschild & Wilzinski, the defendants, answered, admitting the lease; alleging payment to one Martin McAndrews up to the time of the commencement of the action; affirmed that they were ready to pay rent to whomsoever the court should direct; asked that the complaint as to them be dismissed, and that the said Martin McAndrews be allowed and required to intervene, to the end that their rights be protected, and that they might not be subjected to another action for the same rent and claim. McAndrews did intervene, and filed an answer denying that the plaintiff was the owner of the premises; denying that by the terms of the lease and by virtue of the law there was due and owing from defendants to plaintiff, for the rent of the premises, for the month of April, 1894, the sum of $275; and for an affirmative defense alleged that, prior to the commencement of the above-entitled action, McAndrews tendered to plaintiff the full amount, with all interest and all costs necessary to redeem the premises from said sheriff's sale, and that plaintiff refused to accept the same; that on or about the 2d day of April, 1894, he duly served the plaintiff with a written notice of his intention to redeem the premises described from said sheriff's sale; that thereafter, on the 5th day of April, he did redeem the same by paying to Woolery, the sheriff of King county, the sum of $49.70, the amount necessary to redeem said premises, and the amount demanded by said sheriff to redeem the same; and that said redemption in all respects complied with the law pertaining thereto. There were some other allegations in relation to attachment in a garnishment proceeding, which it is not necessary to notice here. The reply denied the tender alleged in intervener's answer; admitted the notice of redemption on the 2d day of April, and the redemption thereafter, on the 5th day of April. The cause came on for trial June 7, 1894, and, prior to impaneling a jury, appellant, by his attorneys, in open court, moved for judgment on the pleadings. The motion was overruled; whereupon the respondents moved for judgment, which motion was granted. From such judgment this appeal is taken.

This action could not be maintained, in any event, for any length of time exceeding that which intervened between the 1st day of April and the 5th day of April, the day on which it is conceded the land was redeemed. The law provides that the purchaser from the day of the sale until a resale or redemption, and the redemptioner from the day of his redemption until another redemption, shall be entitled to possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents v.39p.no.6-44

or the value of the use and occupation thereof during the same period. What is meant by "during the same period"? Evidently, the same period that the purchaser is entitled to where there is no tenant holding under an unexpired lease, viz. from the day of sale until a resale or redemption. There is no provision of this law even suggestive of the idea that the purchaser should be entitled to possession beyond the day of redemption, or that he shall be entitled to receive the rents or the value of the use and occupation of the property beyond the day of redemption; and the fact that the rent in this instance was payable in advance, if such is shown from the allegations of the complaint, cannot add to the rights of the execution purchaser under the law. So that, even conceding that the execution purchaser would be entitled to an action against the tenant for the price contracted for between the tenant and the landlord, all that the plaintiff in this case could under any circumstances collect would be the amount of rent due from the 1st to the 5th of April. But he would not even be entitled to bring the action in advance for that amount, for he could not know, under the law granting the right of redemption, what proportion of this amount he would be entitled to until it had already become due by lapse of time. The fact that this land was redeemed so shortly after this suit was commenced shows the impracticability and injustice of the rule contended for by the appellant. Again, the 1st day of April fell on Sunday, which is a nonjudicial day, and the tenant would be entitled to the 2d day of April to make the payment to his landlord, under their contract; and this action was commenced before his time for making the payment had expired. This may be a technical holding, but appellant here is seeking to obtain a technical advantage, and cannot complain if the construction which he contends for is applied to his complaint. Laying all these questions aside, the appellant, under the record as presented to the court, could not maintain this action here in any event, and it is not necessary for us to go into a discussion of the question whether or not the judgment should have been rendered for respondents upon the pleadings, for, according to the record, this case was submitted, not only upon the pleadings, but upon oral admissions made by the respective parties. The judgment recites the following: "This cause having come on regularly for trial on the 7th day of June, 1894, before Richard Osborn, judge of said court, and the plaintiff appearing in person and by his attorneys, Byers, McElwain & Byers, and the defendants in person and by their attorney, William Martin, and said cause having been duly submitted to the court for its decision upon motion for judgment upon the pleadings and upon oral admissions made by the respective parties in open court of ali the facts in said cause, and the same being

fully submitted, and after hearing argument by counsel for the respective parties, and the court being now fully advised in the premises, finds from said admissions that intervener Martin McAndrews was the owner in fee simple of the property described in plaintiff's complaint, at all the times mentioned therein, and as a matter of law that defendants are entitled to judgment." The appellant has not seen fit to bring to this court the record of what these oral admissions were which were made by the respective parties in open court of all the facts in the cause, and consequently this court cannot pass upon their sufficientcy, and must conclude that the judge who tried the cause, and who passed upon these matters which were submitted to him outside of the pleadings, had sufficient testimony before him to justify the judgment which he rendered in the cause; the presumption being that the judgment was sustained by the facts presented to the court until the contrary is shown. The judgment will therefore be affirmed.

HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur.

(54 Kan, 751)

KANSAS MIDLAND RY. CO. v. BREHM. (Supreme Court of Kansas. March 9, 1895.)

ASSIGNMENT OF RIGHT OF ACTION.

Under our statutes, a right of action against a party for negligently and wrongfully destroying property by fire is not assignable.

(Syllabus by the Court.)

Error from district court, Reno county; L. Houk, Judge.

Action by John M. Brehm against the Kansas Midland Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

A. A. Hurd and Robert Dunlap, for plaintiff in error. G. A. Vandeveer and D. H. Martin, for defendant in error.

JOHNSTON, J. This was an action brought by John M. Brehm against the Kansas Midland Railway Company and the Kansas Construction & Improvement Company to recover damages alleged to have been suffered by nine other parties through the negligent escape of fire from the locomotives of the defendants below, which, it is averred, burnt up and destroyed hay and other property belonging to those parties. These claims for damages were assigned to Brehm. Two of them appear to have been assigned to and purchased by him outright, for a specific consideration, and the remainder of the claims were conditionally assigned to him. The conditions were as follows: "Now, I have and do hereby transfer, assign, and set over to John M. Brehm all my said claim against said company, or against whomsoever it may be, because of said damages, hereby fully author

izing and empowering said Brehm to settle or sue on said claim, and recover damages therefor, as fully as I have power to do at this time; and said Brehm is to and hereby agrees to pay to me for my said claim an amount equal to whatever he may recover and receive thereon, to be due and payable only after the same comes into the hands of said Brehm, less all costs, expenses, attorney's fees, and one per cent. in addition thereto, in consideration hereof, and of his agreeing to take said claims on the terms herein." In the assignment it is stated that on December 6, 1887, the Kansas Construction Company, by its negligence, set and permitted fire to escape from the right of way of the Midland Railway Company, thereby burning and destroying property of a certain description and of a stated value. The answer of the railway company was-First, a denial; and, next, that the plaintiff was not the real party in interest, and had no capacity to sue; and, third, that the contracts and agreements between him and the parties alleged to have been injured were champertous and contrary to public policy, and that by such agreement the plaintiff had undertaken to prosecute the alleged claims in his own name, and at his own expense, for a part of the proceeds, in case of a recovery. The Kansas Construction Company was not served, and did not appear or answer in the case, and no judgment was rendered against it. Brehm recovered upon seven of the claims against the railway company, the total amount of the recovery being $635.

It is first contended that Brehm cannot maintain an action upon any of these claims, for the reason that the same do not arise out of contract, and are not assignable. It is said that the parties attempted to assign to Brehm a naked cause of action for a tort pure and simple. They do not assign to him any property or property right, but simply a cause of action for an alleged wrong which had been Idone to them. It is urged that it is not the policy of the law to permit the assignment of torts, whereby one undertakes to recover damages for a wrong alleged to have been suffered by another, and that the one who suffers should be willing to vindicate his own wrong if he conceives himself to be injured. To permit another to speculate on such a cause of action tends unduly to increase litigation, and smacks of champerty and maintenance. As the only right which Brehm had to any of the claims was obtained upon assignment and transfer from those who had been injured, he cannot recover on any of them if such claims are not assignable. It was a principle of the common law that a chose in action or right to a thing not in possession could not be assigned, and that no man could purchase another's right to a suit, either in whole or in part. This rule has been somewhat modified, and later courts of equity have recognized and enforced the assignment of choses in action arising out of con

tract. In 2 Story, Eq. Jur. § 1040h, the rule is stated as follows: "So, an assignment of a bare right to file a bill in equity for a fraud committed upon the assignor will be held void, as contrary to public policy and as savoring of the character of maintenance, of which we shall presently speak. So, a mere right of action for a tort is not, for the like reason, assignable. Indeed, it has been laid down as a general rule that, where an equitable interest is assigned, in order to give the assignee a locus standi in judicio in a court of equity, the party assigning such right must have some substantial possession, and some capability of personal enjoyment, and not a mere naked right to overset a local instrument or to maintain a suit." The general doctrine, both at law and in equity, is that a right of action for a pure tort is not the subject of assignment. This rule has been changed to some extent by statute, and the provisions with reference to what choses in action will survive or abate by the death of either or both of the parties have been held to modify this rule, so that everything which survives and can be transmitted to the executor or administrator of the assignor in case of death is assignable. Smith v. Railroad Co., 28 Barb. 605, and cases cited. Sections 420 and 421 of our Code prescribe what actions may survive to the personal representatives of a party in case of his death, and, if these provisions stood alone, it might, perhaps, be said that the legislature intended to modify the common-law rule so that all rights of action which survive might pass by assignment. Such provisions have been held to have that effect in other states. We have another provision, however, adopted at the same time, which clearly indicates a legislative intent to restrict the assignment of choses in action to those arising out of contract. In section 26 of the Code it is provided that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 28; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract." Evidently this provision recognizes the limitation which existed at common law when the Code was adopted, and inferentially, at least, provides that a chose in action arising out of a pure tort is not assignable. To meet the objection that a right of action arising out of torts of this character is not assignable, defendant in error relies upon Steward v. Balderston, 10 Kan. 131. While some of the language of the opinion in that case might seem to warrant the view taken by defendant in error, it is manifest that the case cannot be regarded as an authority that a right of action arising out of a tort is assignable. The subject-matter of that action was a claim for money wrongfully taken; but as the party injured in such a case can waive the tort, and sue as upon an implied contract (Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438), and as there was an implied agreement to pay the

money, it was treated as a chose in action arising out of contract, and was therefore assignable. Shortly afterwards the same subject was under consideration, when it was said: "At common law no chose in action was negotiable, or even assignable. In equity every chose in action, except a tort, was assignable; but it was assignable subject to all equities that might be set up against it. Under our statutes every chose in action is assignable, except a tort, the same as it was in equity. Civ. Code, § 26." McCrum v. Corby, 11 Kan. 464, 470. In this view, the defendant in error was not entitled to maintain the action, and hence the judgment of the district court must be reversed. All the justices concurring.

CHEROKEE & P. COAL & MIN. CO. ▼. DICKSON. (Supreme Court of Kansas. March 9, 1895.) NEGLIGENCE OF MASTER-OPINION EVIDENCEDECLARATIONS.

1. Where the principal question to be tried in the case is whether a coemployé of the plaintiff was a competent and skillful miner, it is error to permit a witness, who is himself a skillful miner, over the objection of the defendant, to give his opinion as to the skill and compe tency of such coemployé.

2. In an action against the principal, proof of declarations or admissions made by an agent with reference to a past occurrence, and not in connection with the performance of any duty or business for his employer, is hearsay testimony, and inadmissible.

(Syllabus by the Court.)

Error from district court, Crawford county; J. S. West, Judge.

Action by John Dickson against the Cherokee & Pittsburgh Coal & Mining Company.