was the property of Bumgarner, and was subject to attachment for his debt to the plaintiff.

the rights of the holder of the bill of lading, and, in the absence of collusion or fraud, had no right to question the title of the holder. Latham v. Spragins, 162 N. C. 404, 78 S. E. 282. The transfer of the bill of lading and the draft, without more, implied an intent to transfer the title of the goods, and strong evidence would have been required to show that these manifestations of intent were other than what the acts of the parties plainly indicated. Williston on Sales, § 411.

[3] The evidence confirms the implied intent shown by these documents, and leaves no doubt of the good faith of the consignor and the intervener. If the bill of lading had been transferred merely as security for the debt of the consignor, and the draft had been drawn on the shipment as security, the bank would have acquired the right to the property, which neither the consignor nor the consignee could have disregarded. Halsey v. Warden, 25 Kan. 128; 4 R. C. L. 33. The judgment is reversed, and the cause remanded, with directions to enter judgment in favor of the intervener.

[1, 2] The facts in the record, which are practically without dispute, disclose that this was an ordinary business transaction, conducted in the ordinary way, by which the consignor indorsed and transferred the bill of lading with the draft attached to the intervener, which transmitted the draft and bill of lading to the consignee, and the latter in turn gained possession of the goods by acceptance and payment. There was no lack of consideration between the consignor and the intervener, and there is no suggestion of collusion or bad faith in the transfer. It has been held that the negotiation of the bill of lading vested in the transferee all the title to the goods which the consignor possessed, and the proceeds of the draft became the property of the intervener as effectually as if it had them in actual possession. Mercantile Co. v. Bank, 83 Kan. 504, 112 Pac. 114, 33 L. R. A. (N. S.) 954; Bank v. Sprout, 104 Kan. 348, 179 Pac. 301; note 49 L. R. A. (N. S.) 644. The intervener held not only the title gained by the indorsement of the bill of lading and the draft, but it had a mortgage upon the goods that were shipped. It was shown that the intervener had loaned Bum. garner considerable sums of money, and to secure the payment of these loans mortgages on the goods were executed by him. When the shipment was made, the bill of lading was assigned to the intervener as a partial payment on this indebtedness. There is no doubt as to the existence of the indebtedness, 1. nor of the intention of the parties that the transfer was made in payment of it.

The plaintiff questions the validity of the mortgage because the property was not so described as to be distinguishable from other property of Bumgarner of a like character, and also that some of it had been changed in form and placed in cans after the mortgage was executed. We think there is no merit in the contention, but the validity of the mortgage is not essential to the validity of the transfer of the bill of lading, and is not a material question in this appeal. The bona fide transfer of the bill of lading for a sufficient consideration carried out the intention of the parties, and vested the title and right of possession of the goods in the intervener, and when the plaintiff accepted the bill of lading and paid the draft it was the end of the transaction, and the proceeds of the goods could not be attached by the plaintiff or any creditor of the consignor. After transferring the bill of lading and the title to the goods to the consignee, the consignor himself could not have appropriated the proceeds of the sale, and the consignee, having received the goods under the bill of lading, took them subject to

SPECIAL FINDINGS OF JURY CONCLUSIVE ON APPEAL. The rule followed that the special findings of a jury, when approved or adopted by the trial court, and supported by substantial though disputed testimony, are conclusive on appeal.

2. TRUSTS 356(2) MATERIALMEN NOT

CHARGED WITH NOTICE OF CONTRACTOR'S AP-
PROPRIATION OF TRUST FUND.

In an action to enforce a materialman's lien

on a certain property, in precedence of mortgage liens, the fact that the creditor accepted a check which was signed by the contractor, "F. C. Workman, Trust.," in payment upon items of an account for materials furnished on another property, does not charge the materialman with notice that a trust fund is being wrongfully appropriated by his debtor, when both the trustee and his beneficiary were parties to the action, and neither of them raised any issue concerning the existence of such a trust fund, and filed no pleadings and submitted to a judgment by default.

3. MECHANICS' LIENS 239 · APPLICATION OF PAYMENT BY CONTRACTOR TO MATERIALMEN.

A bookkeeper, who receives money for his employer from a debtor "on account" and makes an appropriate bookkeeping entry to record the fact of payment, does not thereby, without authority, preclude his employer, the materialman,

4. MORTGAGES

(185 P.)

151(3)-PRIORITY OF MATERIALMAN'S LIEN OVER MORTGAGE.

A contractor was furnished with materials

for repairing two properties, one owned by his wife, the other by a stranger. The materialman kept a book showing the aggregate indebtedness of the contractor, and also kept a record showing what materials were furnished for use on each property. The purpose of the latter record was to preserve the materialman's right to a lien on each property. On February 10, 1917, the contractor paid $400 on account, without specifying more particularly how the money should be applied. On or before February 16, 1917, a Sunday and holiday having intervened, the materialman applied the $400 on the account due for materials on the stranger's property, and filed a lien on the property of the contractor's wife for the materials used in repairing her property. Held, that the materialman's lien was properly given precedence over mortgage liens on that property.

from applying that payment to a particular ac- | first delivery of materials was for the Lake count against his debtor, if such application is street property; the last was for the Lafamade within a reasonable time, where the evi-yette street property. The plaintiff kept one dence shows that the materialman's system of general account with Workman, but the duplibookkeeping was arranged so as to keep a record of separate accounts against the debtor to cates of its original delivery sheets were preserve the materialman's right to liens on preserved so that the quantity and value of separate properties for each of the debtor's acthe materials delivered and used on each counts. property could be ascertained if mechanic's liens should become necessary to secure payment. Shortly before the time limit for filing liens expired, the Merriam Mortgage Company loaned to Workman and wife the sum of $1,500 on the Lake street property, and took two mortgages thereon for security, assigning one mortgage to the Granite Savings Bank & Trust Company and retaining the other. Workman deposited $1,000 in a bank to his Of the money thus procured, credit as F. C. Workman, trustee; and, as plaintiff was pressing him for payment, he delivered to it a check drawn on that bank account, signed "F. C. Workman, Trust." A memorandum on the check contained the words "on account." This payment was made on February 10, 1917. The check was delivered to plaintiff's bookkeeper by Workman's son, who said, "Here is a check on account." And the bookkeeper gave the young man a receipt, "By check on ac." A few days later, the bookkeeper, pursuant to directions of his employers, made an entry to show that the $400 payment was applied on the "Lafayette job." At that time the plaintiff had received no instructions from Workman directing that the payment should be applied on either of the particular accounts. On February 16th, the plaintiff, by letter, notified Workman that the $400 had been applied on the bill for materials furnished for the job on Lafayette street. On February 21st, Workman wrote to plaintiff protesting vigorously against that application of the money. The president of the plaintiff Company testified that it was the plaintiff's usual business policy to refrain from filing mechanic's liens on the property of third parties where his debtors had property of their own which would protect the company.

Appeal from District Court, Shawnee County.

Action by the McCleery-Dudley Lumber Company against Mabel S. Workman, F. G. Workman, her husband, the Merriam Mortgage Company, the Granite Savings Bank & Trust Company, and others, to foreclose a mechanic's lien. From a judgment against the Workmans by default and giving the lien priority on property covered by their mortgages, the Merriam Mortgage Company and the Granite Savings Bank & Trust Company, mortgagees, appeal. Affirmed.

B. R. Wheeler, S. M. Brewster, and John L. Hunt, all of Topeka, for appellants.

Tinkham Veale, of Topeka, for appellee.

street job?
"Q. Why was it applied on the Lafayette
A. *
*Well, we determin-

DAWSON, J. In this appeal mortgagees complain of the precedence given to the foreclosure of a mechanic's lien on property coved it was going to be a question of a lien, and, if it was going to be a question of a lien, we wanted it a lien on his property and not a lien on Mrs. Payne's property."

ered by their mortgages.

The jury made certain special findings of fact, which the trial court adopted:

The plaintiff lumber company supplied certain materials for the improvement of two properties in Topeka-one on Lake street and the other on Lafayette street. The contractor who purchased these materials was one F. C. Workman, whose wife held the title "(1) When the payment of $400 was made to the Lake street property. The Lafayette by Roy S. Workman to McCleery-Dudley Lumstreet property was owned by a stranger to ber Company, was there any direction or rethis controversy. The improvements on both quest made that the payment should be credproperties were made about the same time, ited on any particular part of the account? A. No. * covering the period from October 6, 1916, to January 20, 1917, and were supplied by the plaintiff from time to time as needed.

*

*

pany know of Workman applying for a loan? "(3) Did the McCleery-Dudley Lumber ComThe A. Yes.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
185 P.-19

(185 P.)

of Workman and the plaintiff as involving two separate accounts. As a business necessity, and as a legal necessity also-if the materialman expected to invoke his right to a lien-the separate identity of the two accounts had to be preserved, and they were so preserved. The evidence shows that the plaintiff company consistently pursued such a course of dealing with Workman as to preserve its right to a lien for the materials furnished on each of these properties. It also shows that as soon as the fact of payment was brought to the attention of a responsible officer of the plaintiff, and that was within a reasonable time, the money was applied to Workman's account for the Lafayette street job. In this the court holds that the plaintiff was within its right; and that neither the rule forbidding a change of the application of payment once credited to a particular account, nor the rule requiring payment to be applied to the discharge of the earliest items of a general account, is involved in this action.

There is no error in the record, and the judgment is affirmed.

All the Justices concurring.

(105 Kan. 501)

BERGGREN v. JOHNSON. (No. 22250.)
(Supreme Court of Kansas. Nov. 8, 1919.)

(Syllabus by the Court.)

Appeal from District Court, McPherson County.

Ejectment by H. H. Berggren against Maria Johnson. Demurrer to defendant's statement sustained, and judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas L. Bond, of Salina, for appellant.

MASON, J. H. H. Berggren brought ejectment against Maria Johnson. The defendant answered with a general denial claiming lawful possession of the property and title to a half interest therein; the manner of its

acquisition not being pleaded. Upon a jury being impaneled to try the case each attorney made a statement in behalf of his client. Thereupon the plaintiff demurred to the defendant's statement. The court sustained the demurrer, discharged the jury, and rendered judgment for the plaintiff. The defendant appeals.

The plaintiff's statement showed that he claimed full ownership under a deed from the administrator of the widow of Olof Lindberg, who had succeeded to the title of the property in question upon the death of the husband. The defendant's statement by fair implication, although not expressly, admitted that Olof Lindberg owned the property at the time of his death, and that the plaintiff had acquired a half interest in it by the deed from his widow's administrator, and claimed the ownership of the other half interest by virtue of her having been his adopted daughter. The defendant's attorney, while asserting that there had been an actual adoption of his client, explicitly admitted that he could

1. STATUTES 281-TRIAL 109-ADMIS-produce no evidence of any proceedings in

SIONS IN STATEMENT TO JURY; PROOF OF
FOREIGN LAW NOT PLEADED.

The admission, made in the course of the preliminary statement to the jury in behalf of a defendant in ejectment, whose answer is a general denial, and who relies upon a claim of being the adopted child of a former owner of the property in controversy, that he can produce no evidence of the proceedings of a court relating to the matter does not necessarily preclude his recovery upon the theory that a valid adoption had been brought about, because under that pleading he might prove that in the jurisdiction in which he asserts the adoption to have taken place the law permitted it to be accomplished without judicial action. The rule that one who relies on a foreign law different from our own must plead as well as prove it does not apply in an action where any defense can be shown under a general denial.

(Additional Syllabus by Editorial Staff.) 2. APPEAL AND ERROR ~291 MOTION FOR NEW TRIAL NOT NECESSARY TO REVIEW JUDGMENT ON OPENING STATEMENT.

Motion for new trial is not essential to review judgment granted after opening statements to jury, there having been no trial on issues of fact.

court relative thereto, and would rely upon declarations of Olof Lindberg and the circumstances and the conduct of the parties.

The demurrer to the defendant's statement is of course to be treated as a motion for a judgment for the plaintiff thereon. The preliminary statement of his case and the evidence by which a party expects to sustain it is not to be treated as having the effect of a pleading. The mere fact that its allegations if taken as true would not entitle him to recover does not warrant the sustaining of a motion for a judgment against him, because it is not to be inferred that he would introduce no evidence other than that therein referred to. The omission to include in the statement reference to some fact necessary to his recovery is not material. The motion may be allowed only when the statement contains some clear, affirmative admission that is fatal to a recovery by the party making it. Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950.

The decision of the trial court was obviously based upon the view that the case was controlled by the rule that rights of inheritance can be acquired through adoption in

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The

this state only by virtue of a substantial | tion otherwise than by evidence of the record, compliance with the requirements of our stat- even although an order of a court should have ute, which include the consent of the probate been necessary to its accomplishment. judge. Renz v. Drury, 57 Kan. 84, 45 Pac. rule seems to be that this can be done only 71; Malaney v. Cameron, 98 Kan. 620, 159 where the loss or destruction of the record Pac. 19. The defendant among other conten- has been shown (1 C. J. 1394), although extions claims that he was entitled to prove if ceptional circumstances have been held to he could that the adoption had taken place in create an estoppel to deny the adoption (Dawsome other state or country where judicial ley's Estate, 60 Colo. 73, 152 Pac. 1171. proceedings were not necessary. Gray v. See, also, Lane v. Sanders [Tex. Civ. App.] Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 201 S. W. 1018; and note, 39 Am. St. Rep. 207. To this the plaintiff responds that the 216). It does not seem expedient, however, law of every other jurisdiction is presumed in advance of knowledge of just what the deto be the same as that of Kansas until the fendant may attempt to prove, to lay down a contrary is pleaded and proved, and that the general rule broad enough to cover the endefendant had neither pleaded nor offered to tire field suggested. The admissibility of prove the existence of any different law else- evidence that may be offered can be better dewhere. The time for making proof, however, termined in view of its precise character and had not arrived, and as has already been the circumstances under which it is presaid the defendant was not limited in the in- sented. troduction of evidence to the allegations included in the preliminary statement to the jury. The general rule that the existence of a foreign law different from our own must be pleaded before it can be proved means merely that the state of the law in another jurisdiction is treated as a question of fact, and can only be put in issue, like any other fact, by being pleaded. It applies to situations where the specific facts relied upon are required to be set out in detail in the pleadings. In ejectment the defendant under a general denial can show any fact tending to defeat a recovery by the plaintiff (Clayton v. School Dist. No. 1, 20 Kan. 256; Taylor v. Danley, 83 Kan. 646, 112 Pac. 595, 21 Ann. Cas. 1241), including matters ordinarily reIquired to be specifically pleaded, such as the statute of another jurisdiction.

The judgment must be reversed because of the fact that the defendant was entitled to an opportunity, which was denied her, to attempt to prove an adoption without the consent of the probate court, valid because made in conformity with the law of the locality where it took place. It is unnecessary to determine whether or not a reversal is required on any other account. In further proceedings, however, the defendant should not necessarily be confined to this single issue. She contends that the plaintiff should not be allowed to recover without making proof of his own title. As already suggested, the opening statement in her behalf seems to indicate that the plaintiff is entitled to recover unless by reason of a valid adoption. But if she seriously wishes to challenge the plaintiff's right on other grounds she ought not to be prevented from so doing by any strict construction against her of expressions used in presenting her case to the jury; the accuracy of a pleading not being expected in such a presen

tation.

The defendant also claims the right to prove the fact of an actual and legal adop

The plaintiff contends that the question we have decided is not before the court, because no motion for a new trial was filed. As there had been no trial of an issue of fact, such a motion was not essential to a review. Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299. The judgment is reversed, and the cause is remanded for further proceedings. All the Justices concurring.

(94 Or. 369)

CRANSTON et al. v. CALIFORNIA INS. CO.
(Supreme Court of Oregon. Nov. 25, 1919.)
1. PLEADING 310-CONSTRUCTION OF CON-

TRACT SET OUT IN COMPLAINT.

Where plaintiff pleads a conclusion of fact as to the nature of the contract set out in the complaint, it is the duty of the court to consider the language of the instrument itself and give it the proper legal construction. 2. INSURANCE

128(1)-PERSONAL CONTRACT

BY BROKER TO PROCURE INSURANCE.

A letter, signed by a firm of insurance brokers, stating that, "pending receipt of our cov ering notes, this will serve to protect you from fire" on certain against loss property, "coverings being in" defendant com. pany, did not bind defendant, since on its face it did not amount to anything except the personal promise of the brokers to procure from defendant certain insurance for plaintiffs. 3. INSURANCE 152(3)

PART OF CONTRACT.

EXISTING LAW AS

Under the presumption of L. O. L. § 799. subd. 34, "that the law has been obeyed," where that the insurance was subject to all the coninsurance company's "covering note" provided ditions of a certain kind of policy used by insurer, it must be presumed that the policy contained the provisions enjoined by the standard policy law (Laws 1911, p. 279), such as provision as to forfeiture on change in insured's interest, title, or possession.

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