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in their petition, March, 1888, and were in the fire which burned the 'grand stand' was force September 28, 1888, in favor of Shaw- started. Neither the board of county commisnee county, Kansas, loss payable to Kansas sioners nor the Kansas State Fair AssociaState Fair Association, as its interests may tion gave the woman any authority to occupy appear, as lessee; and said policies are here- said booth, nor did any one of them know by made a part of this agreed statement of of her existence until after the fire. Eleventh. facts. Second. The Kansas State Fair As- Upon the time in question, the G. A. R. resociation disclaims any right, title, or interest union had been extensively advertised in the in said policies of insurance, or the building city of Topeka, and in the county of Shaw. insured thereby. Third. On September 28, nee, and was a matter of general and com1888, said building covered by said policies mon notoriety, and the members of the board of insurance was totally consumed by fire; of county commissioners and the officers of loss, $6,000. Fourth. The notices of loss and the fair association knew in advance of the proof of loss were made as alleged in plain- holding, and knew at the time of the holdtiffs' petitions. Fifth. The Kansas State ing that it was being held. Thousands of Fair Association held a lease of said fair soldiers and citizens of Shawnee county were grounds, including said building, for twenty in attendance daily, the G. A. R. being in days each year, as per the terms of their lease great favor with the community. No ques. hereto attached, marked 'Exhibit A.' Sixth. tions were asked as to its rights there, and Under the terms of their said lease, the Kan- its local members controlling it, supposing sas State Fair Association took possession of the organization had a right to use the pubthe fair grounds on September 10, 1858, and lic property belonging to the county, went on opened their fair September 17, and closed and held the reunion for a period lasting sep. the fair September 22, 1888, and began clean- eral days, during all of which time gaso. ing up. On 21th September the local mem- line stoves and lamps were used, booths rentbers of the Grand Army took possession of ed, tents pitched, and games, fireworks, parthe fair grounds with a large force, prepar- ades, and festivities indulged in. The G. A. ing for the reunion; the officials of the State R. has used the same place before for reFair Association, supposing the Grand Army unions, and they supposed they had a right came by the authority of the board of county to; and, if they had applied to the board of commissioners, abandoned the cleaning up, county commissioners, they would have been and the Grand Army finished the work, and willingly granted the use, gratuitously, of made general preparations for the reception the said premises, for the purpose of holding of their friends, renting booths, tenting said reunion." Upon the pleadings and the grounds, etc., and opened up the Grand Army agreed statement of facts, the court found in reunion on Monday, October 1, 1888. Sev- favor of the plaintiffs and against the comenth. During the time the fair grounds were panies, and rendered judgment against each in the possession of the Kansas State Fair in the sum of $1,140. In each case motions Association, no one was permitted to use for a new trial were made and overruled, gasoline lights or stoves, and whenever found and each company brings the case here, alupon the grounds were immediately removed; leging error. by force, if necessary. Eighth. On and after

E. F. Ware, for plaintiffs in error. R. B. September 28, 1888, Bradford Miller, H. C.

Welch and D. R. Hite, for defendants in erLindsey, and John M. Wilkerson composed the board of county commissioners of Shawnee county; neither the Grand Army of the JOHNSTON, J. (after stating the facts). Republic, nor any one for them, made appli- Each policy contained a condition providing cation to said board of county commissioners, that the insured should not keep or use gasoor to any member thereof, for authority to line upon the premises, and that a violation use said fair grounds for reunion purposes, of the condition would avoid the policy. The and no authority of any kind, tacit or. other- facts agreed upon clearly show that the fire wise, was given to said Grand Army to so which destroyed the property was occasioned occupy said fair grounds by said county com- by the use of gasoline, and it fairly appears missioners. Ninth. Neither the Kansas State that the gasoline which caused the fire was Fair Association, nor any one for them, au- kept and used upon the premises. The statethorized, either directly or indirectly, said ment respecting it is not as explicit as it Grand Army of the Republic to occupy said might have been, but we think that the fair fair grounds, nor did said Grand Army of import is that the lunch counter was a part the Republic, nor any one for them, ask for of the premises. The burning of the grand or request of said Kansas State Fair Asso- stand was the subject of controversy, and ciation the right to occupy said fair grounds. about which the parties were stipulating, and Tenth. Said fire was caused as follows, to the manifest meaning of their agreement is wit: On September 28, 1888, a lunch-counter that the fire which burned the grand stand booth was occupied by a woman having a was communicated directly from the gasoline gasoline stove and gasoline light, under lease used upon the premises. It is true that the from some official of the Grand Army of the gasoline was not kept and used by the asRepublic, and, either by the flaring out of the sured, nor by any express authority granted light or the explosion of the gasoline stove, by them, and they therefore insist that they

ror.

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.

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 tbe 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.

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 $100, and that the proceeds be applied First, 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 CAATTELS-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.

(54 Kan. 750) OBERT et al. v. OBERLIN LOAN, TRUST &

BANKING CO. (Supreme Court of Kansas. March 9, 1895.)

APPELLATE JURISDICTIOX.

Dismissed for want of jurisdiction, the amount in controversy being less than $100.

(Syllabus by the Court.)

NESS

E. W. Cunningham and W. T. McCarty,

(54 Kan. 744) for plaintiff in error. W. A. Randolph and

FRANKHOUSER ». NEALLY. E. S. Waterbury, for defendant in error.

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

ADMISSIBILITY OF DEPOSITION RESIDENT WITHORTON, C. J. (after stating the facts).

APPEAL FROM JUSTICE ADMISSIBILITY Oakley, the defendant below, alleges two OF EVIDENCE DIMINUTION OF DAMAGES - ACgrounds of error in the record: First, that

TION AGAINST SHERIFF-WRONGFUL LEVY. at the time this action was brought he did

1. It is error for a trial court to permit the

deposition of a witness to be introduced in evinot have the “Quaker Girl" in his possession,

dence, when the deposition itself shows that and therefore had not wrongfully converted the witness is a resident of the county, against her to his own use; and, second, that the

sufficient objection thereto, unless it is first demand for the possession of the mare, made

shown to the court that the witness' oral testi

mony cannot be procured upon the trial. at Emporia, in this state, when she was in 2. Where an action is brought before a jusLincoln, Neb., was not a proper or sufficient tice of the peace to recover upon an account for demand. No objection was made to any of

the value of corn taken possession of by a sher

iff under a levy, as the property of another, and the testimony introduced upon the trial, nor no answer is filed by the defendant, and no bill were any of the instructions given to the of particulars, as a set-off, is demanded by the jury excepted to. Prior to the 18th of May,

plaintiff, and subsequently, upon appeal, the trial

is had without any new pleadings, or any de 1889, R. Bean, of Emporia, in this state, was

mand therefor, the defendant may show, to lesthe owner of the “Quaker Girl." Upon that sen the recovery against him, that, after the day he executed a bill of sale, which, be- levy, other persons, with the plaintiff's consent, tween the parties, may be considered a chat

moved a part of the corn and used or sold ;

that the plaintiff received pay from parties whose tel mortgage, selling and transferring the cattle had injured the corn, and had used or sold animal to Randolph. Subsequently Bean re- a part of it for his own benefit. moved the animal to Lincoln, Neb., where

3. It is error for a trial court to instruct a

jury that the parties have agreed upon the ques. Oakley lives. On November 14, 1889, Oak

tions to be submitted to them for their decision, ley was at Emporia, where Randolph resides. when no such agreement has been made or asHe came from Nebraska to Emporia to get

sented to, either oral or written. the horse “Tommy Oakley,” and took the

(Syllabus by the Court.) animal back with him. He went to Ran- Error from district court, Osage county; dolph's office at Emporia, and informed him William Thomson, Judge. that he had traded or sold a horse called Action by J. J. Neally against N. Frank“Tommy Oakley" to Bean for $100, and that houser. From a judgment for plaintiff, renBean had left the "Quaker Girl" as security. dered on appeal from a justice of the peace, When Randolph demanded of him the defendant appeals. Reversed. "Quaker Girl," Oakley answered: "If you This was an action commenced before a will give me $150, I will put the mare aboard justice of the peace of Osage county on Feb. the cars for you." He said Bean had given ruary 15, 1890, by J. J. Neally against N. a mortgage on her, and he was holding her Frankhouser, who was then sheriff of Osage by virtue of that mortgage, and that he had county, by filing a bill of particulars (omitgot the horse he had sold to Bean, and was ting title and caption) as follows: "The going to take him home, and, if he (Ran- plaintiff alleges that the defendant is indebt. dolph) would pay his expenses, he would ed to the plaintiff in the sum of two hun. send the mare to him. There is sufficient dred dollars for open account, to wit, that evidence in the record to show that Bean did on or about the 1st day of January, 1990, not have the title to the "Quaker Girl," or N. Frankhouser, by his deputy, C. Manrose, the right to the possession of her, so as to as sheriff of Osage county, by virtue of a sell or transfer the animal to Oakley or any pretended writ of execution against the one else, after the 18th of May, 1889. From property of W. L. Neally, W. Z. Neally, and the statements of Oakley, it appears he had Geo. W. Neally, levied upon and took possescontrol of the animal, and therefore there sion of 1,200 bushels of corn, the property of was su nt evi ence be the jury tend this plaintiff, located upon the north half ing to show he had converted her to his own of section 36, township 18, range 15, in said use. There was a demand for the “Quaker county; that the defendant converted the Girl" by Randolph before he commenced this property to his own use; that defendant was action at Emporia. Oakley did not refuse on duly notified that the corn was the propaccount of his want of possession or any erty of this plaintiff, and, although forbidden agistor's lien. He did not offer to turn the by plaintiff to sell the same, defendant reanimal over to Randolph at Lincoln, where fused to release the same from levy, but she was. He claimed $150 for her posses- sold the same on the 11th day of February. sion, and Randolph offered to compromise by 1890; that the corn was wholly and absosplitting the amount with him, but Oakley lutely the property of plaintiff; that there would not give up the animal, and Randolph is due said plaintiff on the account from the could not make arrangements for him to do defendant two hundred dollars, which he so, unless he paid the $150. Under the facts claims, with interest at the rate of six per disclosed in the record, there was sufficient cent. per annum from the 1st day of Janu. evidence introduced to sustain the verdict ary, 1890. J. J. Neally. Isaac Farley, Plainand judgment. All the justices concurring. tiff'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 plea ngs were not amended in the district court, the trial court committed material error in not permitting defendant below, to lessen the 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.

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.

alleged, and to exercise its judgment as to the sufficiency of the same; and where no such consideration is giver, 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. 0. 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 judg. ment 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-AFFIRM

ANCE 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 atfirm 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.)

(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

Error from district court, Washington a right, if he deems it necessary, to be percounty; F. W. Sturgis, Judge.

sonally present when depositions are being Action by Emanuel Rothschild and others taken affecting his interests. He is not reagainst D. M. Evans, sheriff, William Mor- quired to employ a multitude of attorneys rison, and others. Judgment for plaintiffs, to protect his interests at different places on and defendants bring error. Reversed. the same day, nor does the fact that he

chooses to intrust his interests to the care Omar Powell, for plaintiffs in error. T. P.

of an attorney, other than the one who tries Roney and J. W. Rector, for defendants in

the case for him, at one place, require him error.

or his principal counsel to attend on the

same day at another place. A reasonable ALLEN, J. This was an action of replev- construction of the statute, in the light of in, brought by the defendants in 'error as its evident purpose, constrains us to hold partners, under the firm name of E. Roths- that a party giving notices to take deposichild & Bros., against the sheriff of Wash- tions at different places must so arrange the ington county, to recover certain merchan- times as to allow the adverse party to at. dise. On his own application, William Mor- tend each one, and that sufficient time must rison was made a party, and answered, elapse after the conclusion of the taking of claiming ownership of the property in, con- one deposition to allow the party at least troversy. On the 22d of October, 1890, the time sufficient to reach the place where anplaintiffs served a notice on the attorney other is to be commenced. Weeks, Dep. for the sheriff that they would take deposi- | $ 264; Fant v. Miller, 17 Grat. 187. As the tions in Chicago on the 28th of October, testimony included in the deposition taken 1890, between the hours of 8 o'clock a. m. at Chicago is of vital importance to the and 6 o'clock p. m. They also, at the same plaintiffs' case, and as the defendants had time, served another notice that they would no opportunity to appear and cross-examine take depositions on the day stated in the the witnesses, the error in refusing to sup. other notice, in St. Joseph, Mo. The de. press the deposition compels a reversal of fendant appeared by attorney, and attend- the case. ed the taking of depositions at St. Joseph, Another question is presented by the recbut did not appear at Chicago. Before the ord, which, on a new trial of the action, commencement of the trial, the defendants will necessarily come up for consideration. duly excepted to the depositions taken at The goods in controversy were sold by the Chicago, on the ground that they had elect- plaintiffs below to Wheeler & Co. It is ed to appear and attend the taking of the claimed in this action that Wheeler & Co. depositions at St. Joseph, and that they did not intend to pay for them at the time could not be required to attend in two of purchase, but obtained them with a purplaces, distant from each other, at the same pose to defraud the plaintiffs of their value. time. The court overruled the exceptions, Before this action was commenced, another and permitted both depositions to be read at suit was brought by the same parties to rethe trial.

cover the value of he goods, and an atSection 352 of the Code of Civil Procedure tachment was issued in that action against provides for the service of a notice of the the property of Wheeler & Co. Afterwards, time and place of taking depositions, as fol- the plaintiff's filed a motion to dismiss that lows: "The notice shall be served so as to action, and then commenced this for the reallow the adverse party sufficient time, by covery of the specific property. The defendthe usual route of travel, to attend, and ants asked the court to charge the jury that one day for preparation, exclusive of Sun- if the plaintiffs, with full knowledge of the day and the day of service.” Does this per- facts, commenced a suit in attachment on mit the service of two or more notices to their claim, they thereby ratified and aftake depositions at places widely separate firmed the sale, and cannot afterwards mainfrom each other, on the same day, provided tain an action to recover back the goods. only the notice is served in sufficient time The court should have instructed the jury to give the party an opportunity to go to on this point. A party cannot pursue two either place designated? We think the spir- inconsistent remedies. If the plaintiffs were it, if not the letter, of the statute, clearly informed of all the facts with reference to prohibits any such practice. Where testi- the fraudulent purposes of Wheeler & Co. mony is taken by deposition, it is in one at the time they brought the attachment sense a part of the trial of the cause, and suit, by commencing that suit they elected the only chance given to the opposing party to affirm the sale, and recover the purchase to confront the witnesses whose depositions price of the property. After making such are taken under the notice is to attend be- an election, they cannot, merely because fore the officer who takes them. The only they deem an action to recover the specific opportunity to apply the tests necessary to property likely to produce more substantial correct errors or detect falsehood in the results, abandon that election, and make the statements drawn out on direct examina- inconsistent claim that the title to the proption is that afforded by cross-examination erty never passed by the sale, because of the at the same time. A party to an action has fraud of Wheeler & Co. Of course, if the

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