in their petition, March, 1888, and were in force September 28, 1888, in favor of Shawnee county, Kansas, loss payable to Kansas State Fair Association, as its interests may appear, as lessee; and said policies are hereby made a part of this agreed statement of facts. Second. The Kansas State Fair Association disclaims any right, title, or interest in said policies of insurance, or the building insured thereby. Third. On September 28, 1888, said building covered by said policies of insurance was totally consumed by fire; loss, $6,000. Fourth. The notices of loss and proof of loss were made as alleged in plaintiffs' petitions. Fifth. The Kansas State Fair Association held a lease of said fair grounds, including said building, for twenty days each year, as per the terms of their lease hereto attached, marked 'Exhibit A.' Sixth. Under the terms of their said lease, the Kansas State Fair Association took possession of the fair grounds on September 10, 1888, and opened their fair September 17, and closed the fair September 22, 1888, and began cleaning up. On 24th September the local members of the Grand Army took possession of the fair grounds with a large force, preparing for the reunion; the officials of the State Fair Association, supposing the Grand Army came by the authority of the board of county commissioners, abandoned the cleaning up, and the Grand Army finished the work, and made general preparations for the reception of their friends, renting booths, tenting grounds, etc., and opened up the Grand Army reunion on Monday, October 1, 1888. Seventh. During the time the fair grounds were in the possession of the Kansas State Fair Association, no one was permitted to use gasoline lights or stoves, and whenever found upon the grounds were immediately removed; by force, if necessary. Eighth. On and after September 28, 1888, Bradford Miller, H. C. Lindsey, and John M. Wilkerson composed the board of county commissioners of Shawnee county; neither the Grand Army of the Republic, nor any one for them, made application to said board of county commissioners, or to any member thereof, for authority to use said fair grounds for reunion purposes, and no authority of any kind, tacit or otherwise, was given to said Grand Army to so occupy said fair grounds by said county commissioners. Ninth. Neither the Kansas State Fair Association, nor any one for them, authorized, either directly or indirectly, said Grand Army of the Republic to occupy said fair grounds, nor did said Grand Army of the Republic, nor any one for them, ask for or request of said Kansas State Fair, Association the right to occupy said fair grounds. Tenth. Said fire was caused as follows, to wit: On September 28, 1888, a lunch-counter booth was occupied by a woman having a gasoline stove and gasoline light, under lease from some official of the Grand Army of the Republic, and, either by the flaring out of the light or the explosion of the gasoline stove,

the fire which burned the 'grand stand' was started. Neither the board of county commissioners nor the Kansas State Fair Association gave the woman any authority to occupy said booth, nor did any one of them know of her existence until after the fire. Eleventh. Upon the time in question, the G. A. R. reunion had been extensively advertised in the city of Topeka, and in the county of Shawnee, and was a matter of general and common notoriety, and the members of the board of county commissioners and the officers of the fair association knew in advance of the holding, and knew at the time of the holding that it was being held. Thousands of soldiers and citizens of Shawnee county were in attendance daily, the G. A. R. being in great favor with the community. No questions were asked as to its rights there, and its local members controlling it, supposing the organization had a right to use the public property belonging to the county, went on and held the reunion for a period lasting several days, during all of which time gasoline stoves and lamps were used, booths rented, tents pitched, and games, fireworks, parades, and festivities indulged in. The G. A. R. has used the same place before for reunions, and they supposed they had a right to; and, if they had applied to the board of county commissioners, they would have been willingly granted the use, gratuitously, of the said premises, for the purpose of holding said reunion." Upon the pleadings and the agreed statement of facts, the court found in favor of the plaintiffs and against the companies, and rendered judgment against each in the sum of $1,140. In each case motions for a new trial were made and overruled, and each company brings the case here, alleging error.

E. F. Ware, for plaintiffs in error. R. B. Welch and D. R. Hite, for defendants in er

ror.

JOHNSTON, J. (after stating the facts). Each policy contained a condition providing that the insured should not keep or use gasoline upon the premises, and that a violation of the condition would avoid the policy. The facts agreed upon clearly show that the fire which destroyed the property was occasioned by the use of gasoline, and it fairly appears that the gasoline which caused the fire was kept and used upon the premises. The statement respecting it is not as explicit as it might have been, but we think that the fair import is that the lunch counter was a part of the premises. The burning of the grand stand was the subject of controversy, and about which the parties were stipulating, and the manifest meaning of their agreement is that the fire which burned the grand stand was communicated directly from the gasoline used upon the premises. It is true that the gasoline was not kept and used by the assured, nor by any express authority granted by them, and they therefore insist that they

should not be held responsible for the use of the forbidden article. Although it is agreed that the board of county commissioners gave no authority for the use of the premises by the Grand Army of the Republic, it is agreed that the fact that the reunion was to be held upon the premises was a matter of general and common knowledge. It had been extensively advertised, and the board of county commissioners knew in advance that it would be held upon the fair grounds. It was held there for a period of several days, and gasoline stoves and lamps were used without hindrance or restriction. The board of county commissioners not only knew that the reunion was to be held upon the fair grounds, as other reunions had been held before, but they would have willingly granted the use of the premises for that purpose if application had been made. Under such circumstances, the members of the Grand Army of the Republic cannot be regarded as strangers or trespassers, nor can the assured escape responsibility for the use of the prohibited articles. The company stipulated in each case that it would not assume the risk of the use of a very dangerous and combustible material. The violation of these conditions by any one who occupied the premises with the implied consent of the assured is equivalent to a violation by the assured themselves. Under the facts it must be held that the Grand Army of the Republic occupied and held control of the grounds with at least the implied assent of the board of county commissioners, and when they intrusted the occupation and control of the premises to another the latter became their representative, for whom they must answer as for themselves. Insurance Co. v. Gunther, 116 U. S. 113, 6 Sup. Ct. 306; Gunther v. Insurance Co., 134 U. S. 110, 10 Sup. Ct. 448; Kelly v. Insurance Co., 97 Mass. 284; Diehl v. Insurance Co., 58 Pa. St. 443; Insurance Co. v. Simmons, 30 Pa. St. 299. The condition in the policy that gasoline should not be used on the premises is plain and unambiguous, and the defendants in error expressly agreed that a violation of this condition should operate as a forfeiture of all insurance under the policy. It was a reasonable condition, and they cannot reasonably complain of the enforcement of a forfeiture. The judgment in each case will be reversed, and the cause remanded, with the direction that judgment shall be entered in each case in favor of the insurance company. All the justices concurring.

(54 Kan. 750)

OBERT et al. v. OBERLIN LOAN, TRUST & BANKING CO.

(Supreme Court of Kansas. March 9, 1895.) APPELLATE JURISDICTION.

Dismissed for want of jurisdiction, the amount in controversy being less than $100. (Syllabus by the Court.)

Error from district court, Rawlins county; G. Webb Bertram, Judge.

Action by the Oberlin Loan, Trust & Banking Company against W. H. Spears, in which a judgment was rendered for plaintiff. There was a decree giving such company a lien on hand for the amount of its judgment prior to a judgment held by H. H. Obert and others against said Spears. Said H. H. Obert and others bring error. Petition dismissed.

J. C. Cole and W. B. Ingersoll, for plaintiffs in error. Bertram & McElroy, for defendant in error.

ALLEN, J. The plaintiffs in error obtained a judgment in the trial court against W. H. Spears for $285.59, and for the foreclosure of a mortgage on a quarter section of land. The Oberlin Loan, Trust & Banking Company also obtained a judgment against Spears for $65.60, and directing a sale of the lands, subject to a prior mortgage for $400, and that the proceeds be appliedFirst, to the payment of costs; second, to the payment of the judgment in favor of the defendant in error; and, third, in payment of the plaintiffs' claim. The only error alleged is in decreeing the lien of the defendant in error prior to that of the plaintiffs in error. It appears, therefore, that there is at most but $65.60 in controversy, and that this court has no jurisdiction of the case. Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118. The petition in error is dismissed. All the justices concurring.

(54 Kan. 779)

OAKLEY V. RANDOLPH. (Supreme Court of Kansas. March 9, 1895.) CONVERSION OF CHATTELS-WHAT CONSTITUTES.

Where a person obtains possession of personal property, the legal title and the right of possession of which is in another, without his consent, and then asserts a claim to the property by virtue of a chattel mortgage and possession thereunder inconsistent with the owner's right of the property, the one holding the legal title and having the right of possession may maintain an action for the conversion of the property. (Syllabus by the Court.)

Error from district court, Lyon county; C. B. Graves, Judge.

Action by W. A. Randolph against O. R. Oakley. Judgment for plaintiff, and defendant brings error. Affirmed.

This action was brought November 14, 1889, by W. A. Randolph against O. R. Oakley to recover $500 damages for the wrongful conversion of a mare called the "Quaker Girl." On June 3, 1889, the case was tried to the court with a jury, and a verdict for $400 returned in favor of Randolph. Subsequently judgment was rendered upon the verdict, with costs against Oakley and in favor of Randolph. Oakley brings the case here.

E. W. Cunningham and W. T. McCarty, for plaintiff in error. W. A. Randolph and E. S. Waterbury, for defendant in error.

HORTON, C. J. (after stating the facts). Oakley, the defendant below, alleges two grounds of error in the record: First, that at the time this action was brought he did not have the "Quaker Girl" in his possession, and therefore had not wrongfully converted her to his own use; and, second, that the demand for the possession of the mare, made at Emporia, in this state, when she was in Lincoln, Neb., was not a proper or sufficient demand. No objection was made to any of the testimony introduced upon the trial, nor were any of the instructions given to the jury excepted to. Prior to the 18th of May, 1889, R. Bean, of Emporia, in this state, was the owner of the "Quaker Girl." Upon that day he executed a bill of sale, which, between the parties, may be considered a chattel mortgage, selling and transferring the animal to Randolph. Subsequently Bean removed the animal to Lincoln, Neb., where Oakley lives. On November 14, 1889, Oakley was at Emporia, where Randolph resides. He came from Nebraska to Emporia to get the horse "Tommy Oakley," and took the animal back with him. He went to Randolph's office at Emporia, and informed him that he had traded or sold a horse called "Tommy Oakley" to Bean for $400, and that Bean had left the "Quaker Girl" as security. When Randolph demanded of him the "Quaker Girl," Oakley answered: "If you

will give me $150, I will put the mare aboard the cars for you." He said Bean had given a mortgage on her, and he was holding her by virtue of that mortgage, and that he had got the horse he had sold to Bean, and was going to take him home, and, if he (Randolph) would pay his expenses, he would send the mare to him. There is sufficient evidence in the record to show that Bean did not have the title to the "Quaker Girl," or the right to the possession of her, so as to sell or transfer the animal to Oakley or any one else, after the 18th of May, 1889. From the statements of Oakley, it appears he had control of the animal, and therefore there was sufficient evidence before the jury tending to show he had converted her to his own use.

There was a demand for the "Quaker Girl" by Randolph before he commenced this action at Emporia. Oakley did not refuse on account of his want of possession or any agistor's lien. He did not offer to turn the animal over to Randolph at Lincoln, where she was. He claimed $150 for her possession, and Randolph offered to compromise by splitting the amount with him, but Oakley would not give up the animal, and Randolph could not make arrangements for him to do so, unless he paid the $150. Under the facts disclosed in the record, there was sufficient evidence introduced to sustain the verdict and judgment. All the justices concurring.

1. It is error for a trial court to permit the deposition of a witness to be introduced in evidence, when the deposition itself shows that the witness is a resident of the county, against sufficient objection thereto, unless it is first shown to the court that the witness' oral testimony cannot be procured upon the trial.

2. Where an action is brought before a justice of the peace to recover upon an account for the value of corn taken possession of by a sheriff under a levy, as the property of another, and no answer is filed by the defendant, and no bill of particulars, as a set-off, is demanded by the plaintiff, and subsequently, upon appeal, the trial is had without any new pleadings, or any demand therefor, the defendant may show, to lessen the recovery against him, that, after the levy, other persons, with the plaintiff's consent, moved a part of the corn and used or sold t; that the plaintiff received pay from parties whose cattle had injured the corn, and had used or sold a part of it for his own benefit.

3. It is error for a trial court to instruct a jury that the parties have agreed upon the questions to be submitted to them for their decision, when no such agreement has been made or assented to, either oral or written.

(Syllabus by the Court.)

Error from district court, Osage county; William Thomson, Judge.

Action by J. J. Neally against N. Frankhouser. From a judgment for plaintiff, rendered on appeal from a justice of the peace, defendant appeals. Reversed.

This was an action commenced before a justice of the peace of Osage county on February 15, 1890, by J. J. Neally against N. Frankhouser, who was then sheriff of Osage county, by filing a bill of particulars (omitting title and caption) as follows: "The plaintiff alleges that the defendant is indebted to the plaintiff in the sum of two hundred dollars for open account, to wit, that on or about the 1st day of January, 1890, N. Frankhouser, by his deputy, C. Manrose, as sheriff of Osage county, by virtue of a pretended writ of execution against the property of W. L. Neally, W. Z. Neally, and Geo. W. Neally, levied upon and took possession of 1,200 bushels of corn, the property of this plaintiff, located upon the north half of section 36, township 18, range 15, in said county; that the defendant converted the property to his own use; that defendant was duly notified that the corn was the property of this plaintiff, and, although forbidden by plaintiff to sell the same, defendant refused to release the same from levy, but sold the same on the 11th day of February, 1890; that the corn was wholly and absolutely the property of plaintiff; that there is due said plaintiff on the account from the defendant two hundred dollars, which be claims, with interest at the rate of six per cent. per annum from the 1st day of January, 1890. J. J. Neally. Isaac Farley, Plaintiff's Attorney." No other pleading was ever

filed or demanded. After a trial before a justice of the peace, the defendant appealed the case to the district court, where it, was tried before the court with a jury at the June term, 1890, and resulted in a judgment for $172.64, with costs, against defendant below, from which he appeals to this court.

Pleasant & Pleasant, for plaintiff in error. Isaac Farley, for defendant in error.

HORTON, C. J. (after stating the facts). Upon the trial, plaintiff below offered the deposition of George W. Neally. This was permitted to be read in evidence over the objection of defendant below. The deposition showed that the witness was a resident of Osage county. There was no showing made that the witness could not be produced upon the trial. The court therefore committed error in permitting the deposition to be read in evidence. Railway Co. v. Brown, 44 Kan. 384, 24 Pac. 497.

2. "Where a person takes and sells the property of another, the owner may elect to waive the tort, and sue upon the implied contract for the value of the same; and whether he has so elected, and the nature of the action brought, are to be determined by the court from the pleadings. In such a case, where the facts alleged indicate a waiver of the tort, and are sufficient to constitute a cause of action on contract, it should be so regarded, although some words of the pleadings are adapted to an allegation in an action ex delicto." Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204. As this action was commenced before a justice of the peace upon an implied contract for the value of the corn, and as no answer was filed, or any bill of particulars as a set-off was demanded, and as the pleadings were not amended in the district court, the trial court committed material error in not permitting defendant below, to lessen recovery against him, to show that, after the levy on the corn in dispute, other persons, with plaintiff's consent, moved a part of the corn, and used or sold it; that plaintiff received pay from parties whose cattle had injured the corn, and used or sold a part of it for his own benefit.

the

3. The court instructed the jury the parties had agreed that the only question to be submitted to them for their decision was the amount and value of the corn levied on. The record does not show any agreement to that effect, either oral or written, and error was committed in the instruction. The judgment will be reversed, and cause remanded for further proceedings. All the justices concurring.

(54 Kan. 708)

SMITH v. BENTON.

(Supreme Court of Kansas. March 9, 1895.) MOTION FOR NEW TRIAL-PRO FORMA RULING.

When a motion for a new trial is made, it is the duty of the court to consider the grounds

alleged, and to exercise its judgment as to the sufficiency of the same; and where no such consideration is given, and the motion is overruled pro forma, a reversal must follow. (Syllabus by the Court.)

Error from district court, Pottawatomie county; William Thomson, Judge.

Action by J. T. Smith against J. O. Benton. From an order overruling a motion by plaintiff for a new trial, he brings error. Reversed.

Hayden & Hayden, for plaintiff in error. Ashley & Gilbert, for defendant in error.

JOHNSTON, J. This was an action brought by J. T. Smith to recover the possession of real estate alleged to have been unlawfully detained by J. O. Benton, in which the defendant prevailed. At the trial objections were made to testimony offered by plaintiff, and some of the same was excluded. When the plaintiff rested a demurrer to his evidence was sustained by the court, and judgment against him was rendered. He presented a motion for a new trial, setting forth several grounds why it should be allowed, and, according to the record, the court, without evidence, argument, or consideration, denied the new trial. The statement in the record is that it was overruled pro forma. It is well settled-the rule having been so often announced that it must be familiar to the profession-that the failure of the court to consider the grounds of the motion is an error which compels a reversal. State v. Bridges, 29 Kan. 138; Railway Co. v. Keeler, 32 Kan. 163, 4 Pac. 143; State v. Summers, 44 Kan. 637, 24 Pac. 1099; Railway Co. v. Ryan, 49 Kan. 12, 30 Pac. 108; Larabee v. Hall, 50 Kan. 311, 31 Pac. 1062. The judgment of the district court will be reversed, and the cause remanded for another trial. All the justices concurring.

(54 Kan. 747)

EVANS, Sheriff, et al. v. ROTHSCHILD et al. (Supreme Court of Kansas. March 9, 1895.) DEPOSITIONS - SIMULTANEOUS TAKING AT DIFFERENT PLACES-FRAUDULENT PURCHASE-AFFIRMANCE BY VENDOR-SUIT FOR PRICE.

1. Where notices are served to take depositions at two different places on the same day, the party on whom the service is made may attend at either place he chooses, and disregard the other notice; and the depositions taken at the same time at the place where he does not attend should, on his motion, be suppressed.

2. The party adverse to the one taking depositions has a right, if he chooses, to be personally present at the taking of any deposition pursuant to a notice, as provided by section 352 of the Code.

3. Where a party, having full knowledge of all the material facts affecting his rights with reference to goods sold by him to a purchaser, who is charged with having obtained them fraudulently, and intending never to pay for them, sues for the purchase price of the goods, he thereby elects to affirm the sale, and cannot thereafter maintain an action to recover the specific property because of the fraudulent purpose of the purchaser.

(Syllabus by the Court.)

Error from district court, Washington county; F. W. Sturgis, Judge.

Action by Emanuel Rothschild and others against D. M. Evans, sheriff, William Morrison, and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Omar Powell, for plaintiffs in error. T. P. Roney and J. W. Rector, for defendants in

error.

ALLEN, J. This was an action of replevin, brought by the defendants in error as partners, under the firm name of E. Rothschild & Bros., against the sheriff of Washington county, to recover certain merchandise. On his own application, William Morrison was made a party, and answered, claiming ownership of the property in, controversy. On the 22d of October, 1890, the plaintiff's served a notice on the attorney for the sheriff that they would take depositions in Chicago on the 28th of October, 1890, between the hours of 8 o'clock a. m. and 6 o'clock p. m. They also, at the same time, served another notice that they would take depositions on the day stated in the other notice, in St. Joseph, Mo. The defendant appeared by attorney, and attended the taking of depositions at St. Joseph, but did not appear at Chicago. Before the commencement of the trial, the defendants duly excepted to the depositions taken at Chicago, on the ground that they had elected to appear and attend the taking of the depositions at St. Joseph, and that they could not be required to attend in two places, distant from each other, at the same time. The court overruled the exceptions, and permitted both depositions to be read at the trial.

Section 352 of the Code of Civil Procedure provides for the service of a notice of the time and place of taking depositions, as follows: "The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service." Does this permit the service of two or more notices to take depositions at places widely separate from each other, on the same day, provided only the notice is served in sufficient time to give the party an opportunity to go to either place designated? We think the spirit, if not the letter, of the statute, clearly prohibits any such practice. Where testimony is taken by deposition, it is in one sense a part of the trial of the cause, and the only chance given to the opposing party to confront the witnesses whose depositions are taken under the notice is to attend before the officer who takes them. The only opportunity to apply the tests necessary to correct errors or detect falsehood in the statements drawn out on direct examination is that afforded by cross-examination at the same time. A party to an action has

a right, if he deems it necessary, to be personally present when depositions are being taken affecting his interests. He is not required to employ a multitude of attorneys to protect his interests at different places on the same day, nor does the fact that he chooses to intrust his interests to the care of an attorney, other than the one who tries the case for him, at one place, require him or his principal counsel to attend on the same day at another place. A reasonable construction of the statute, in the light of its evident purpose, constrains us to hold that a party giving notices to take depositions at different places must so arrange the times as to allow the adverse party to attend each one, and that sufficient time must elapse after the conclusion of the taking of one deposition to allow the party at least time sufficient to reach the place where another is to be commenced. Weeks, Dep. § 264; Fant v. Miller, 17 Grat. 187. As the testimony included in the deposition taken at Chicago is of vital importance to the plaintiffs' case, and as the defendants had no opportunity to appear and cross-examine the witnesses, the error in refusing to suppress the deposition compels a reversal of the case.

Another question is presented by the record, which, on a new trial of the action, will necessarily come up for consideration. The goods in controversy were sold by the plaintiffs below to Wheeler & Co. It is Iclaimed in this action that Wheeler & Co. did not intend to pay for them at the time of purchase, but obtained them with a purpose to defraud the plaintiffs of their value. Before this action was commenced, another suit was brought by the same parties to recover the value of the goods, and an attachment was issued in that action against the property of Wheeler & Co. Afterwards, the plaintiffs filed a motion to dismiss that action, and then commenced this for the recovery of the specific property. The defendants asked the court to charge the jury that if the plaintiffs, with full knowledge of the facts, commenced a suit in attachment on their claim, they thereby ratified and affirmed the sale, and cannot afterwards maintain an action to recover back the goods. The court should have instructed the jury on this point. A party cannot pursue two inconsistent remedies. If the plaintiffs were informed of all the facts with reference to the fraudulent purposes of Wheeler & Co. at the time they brought the attachment suit, by commencing that suit they elected to affirm the sale, and recover the purchase price of the property. After making such an election, they cannot, merely because they deem an action to recover the specific property likely to produce more substantial results, abandon that election, and make the inconsistent claim that the title to the property never passed by the sale, because of the fraud of Wheeler & Co. Of course, if the