(97 Kan. 49) notice requiring the defendant to repair the CITY OF TOPEKA v. CENTRAL SASH & sidewalk pleaded, it is not liable. DOOR CO. (No. 19797.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) [1] 1. The defendant caused the defective condition of the sidewalk. The plaintiff did not participate in producing that condition. The plaintiff was negligent in permitting the 1. INDEMNITY 13-DEFECTIVE SIDEWALK-condition to remain, but it did not in any RECOVERY AGAINST CITY LIABILITY OF ABUTTING PROPERTY OWNER. Where a city has been held liable for injuries sustained by a person lawfully using a defective sidewalk, the city can recover from an abutting property owner whose active fault caused that condition of the sidewalk. [Ed. Note. For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. 13.] 2. MUNICIPAL CORPORATIONS 808-DEFECTIVE SIDEWALK-INJURY TO PEDESTRIAN LIABILITY OF ABUTTING PROPERTY OWNER. The liability of an abutting property owner whose active fault caused a defective condition in a sidewalk does not depend on that liability being fixed by ordinance or by notice to repair. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1684-1687, 16901694; Dec. Dig. ~808.] manner cause the condition. The plaintiff was not in equal wrong with the defendant. In 40 L. R. A. (N. S.) 1165–1172, is found an exhaustive note on "Right of municipality to recover indemnity or contribution from one for whose tort it has been held liable." A large number of cases are there cited to Support the proposition that, where municipalities have been held liable for injuries sustained by persons lawfully using defective streets or sidewalks, the cities can recover from those whose negligence or active fault as abutters, licensees, or volunteers caused the defective conditions. See, also, note 61 L. R. A. 591. The fact that the defendant was an abutting property owner and had a right to Appeal from District Court, Shawnee use the walk does not relieve it from liability County. Action by the City of Topeka against the Central Sash & Door Company. From a judgment for plaintiff, defendant appeals. Affirmed. J. G. Slonecker and J. M. Stark, both of Topeka, for appellant. W. C. Ralston, of Topeka, for appellee. MARSHALL, J. This action was brought by the city of Topeka to recover from the defendant the sum of $631.15, with interest, which the plaintiff alleged it was compelled to pay out in satisfaction of a judgment obtained against it for personal injuries sustained by a pedestrian on account of a defective sidewalk. The defendant demurred to the petition. This demurrer was overruled. From this the defendant appeals. The petition alleges that the defective condition of the sidewalk was caused by the defendant in driving horses and wagons over the walk in front of a building owned and used by the defendant in its private business; that the defendant then permitted the walk to remain in that defective condition; that the ordinances of the city prohibited riding or driving over the sidewalk; that the defendant was notified of the action against the city and asked to defend in that action; that no defense was made by the defendant; and that the city paid the judgment rendered against it. The argument of the defendant is that the parties to this action are in pari delicto, and that therefore the one cannot recover from the other; that, because the defendant is an abutting property owner and had a right to use the walk, it was under no duty to repair, and therefore it is not liable; that the ordinances of the city do not render the defendant liable; and that, because there was no to the city. Note 12 L. R. A. (N. S.) 951. [2] 2. This liability of the original wrongdoer is not dependent upon the existence of any ordinance declaring his liability, nor upon the fact that there has been no notice given to the wrongdoer to repair the sidewalk. He is liable because of his active fault in producing the defective condition. The demurrer to the petition was properly overruled. All the Justices concurring. (97 Kan. 120) STRAMEL v. HAWES. (No. 19861.)* (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) 1. CONTRACTS 97-RATIFICATION — ACTION FOR BREACH. Where a party to a contract elects to sue breach of its terms by the defendant, he thereupon it for damages resulting from an alleged by ratifies it as a valid contract, binding alike upon himself and the defendant. 97.] [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 442-446; Dec. Dig. 2. SPECIFIC PERFORMANCE 128-JUDGMENT FOR DAMAGES, Although specific performance is still an equitable remedy, the granting of which rests in the discretion of the court, the Code has abrogated the rule, which formerly obtained, that a judgment for damages will not be awarded where specific performance is found impossible, unless the court, in its discretion and upon a consideration of the equities, concludes that it is just and equitable. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 412-419; Dec. Dig. 128.] 3. SPECIFIC PERFORMANCE 128-RECOVERY OF DAMAGES RIGHT. The rule, which formerly obtained, that where a party knows at the time he brings suit for specific performance that the contract cannot be specifically performed or decreed, he will not be allowed to recover compensation in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes way of damages, has also been abrogated by the | is the finding that Dome had no authority Code. to sign the contract as agent for plaintiff; [Ed. Note.-For other cases, see Specific Per-that the contract never bound the plaintiff formance, Cent. Dig. §§ 412-419; Dec. Dig. 128.] 4. SPECIFIC PERFORMANCE 115-CROSS-PETITION-DAMAGES IN LIEU OF SPECIFIC PER FORMANCE. to do anything until he ratified it by bringing his action upon it to recover damages for its breach. The court also found that it was the plaintiff, and not the defendant, who breachIn an action in which plaintiff sues to re-ed the contract, and that defendant was encover damages for the breach by defendant of titled to recover damages against plaintiff a contract to exchange real estate, the defendant may set up a cross-petition, alleging that plain- in the sum of $4,520, and judgment was rentiff breached the contract, and ask for specific dered accordingly. This left the plaintiff in performance, with a prayer in the alternative for a serious predicament, and it is not surprisdamages, notwithstanding defendant is aware ing that he appealed. At the time the judgof the fact that plaintiff has put it beyond his ment was rendered, the court added a postpower to perform. script statement, which became a part of the record, and which reads: [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 373; Dec. Dig. 115.] 5. APPEAL AND ERROR 1008-JUDGMENT CONCLUSIVENESS. Where plaintiff brings an action to recover damages for the defendant's breach of a contract to exchange real estate and the court finds that it was the plaintiff, and not the defendant, who breached the contract, a judgment in defendant's favor on his cross-petition for damages will not be set aside on considerations of equity, or because it appears that plaintiff made a bad bargain. LEd. Note. For other cases, see Appeal and Error, Cent. Dig. $$ 3955-3960, 3962-3969; Dec. Dig. 1008.] Appeal from District Court, Edwards County. Action by Anton Stramel against A. B. Hawes. From judgment for defendant, plaintiff appeals. Affirmed. "The trial court feels that the statement in this case is inequitable; that defendant could not have recovered in this case if plaintiff had not elected to hold said contract good and sue thereon; that the question of equity was not considered by the court in rendering judgment in this case, but the judgment is based solely upon the court's idea that plaintiff, in filing the suit in this case, has ratified said contract and is bound by the terms thereof. This statement is made in order that the Supreme Court may know the theory upon which judgment was rendered in this case." " By the contract, which is dated November 18, 1912, plaintiff agreed to trade three sections of land in Nebraska for an apartment house in Kansas City, Kan., belonging to defendant. The Nebraska land was represented as subject to mortgages amounting to $7,000, due May 17, 1916. As a matter of T. S. Haun, of Kinsley, and Jamison, Hutch- | fact, $1,000 of the incumbrance was past due, ison & Ostergard, of Kansas City, Mo., for appellant. Dyer & Moffat, of Kinsley, and F. Dumont Smith, of Hutchinson, for appellee. and the balance matured a year later. The court found that the apartment house was represented to be subject to two mortgages aggregating $5,000, due in five years. The contract is silent as to the date when these mortgages were due, and the court's finding is upon evidence of oral statements made to plaintiff by defendant's agent previous to the execution of the contract. The amount of mortgages on the Kansas City property turned out to be $5,200, but before plaintiff de PORTER, J. In some respects this is a remarkable case. The plaintiff sued to recover $500 damages for the alleged breach by the defendant of a written contract for an exchange of real estate, claiming that he had paid that amount as commissions to one Joe Dome, his agent in procuring the con-clared his intention to refuse to make the tract. The defendant answered with a crosspetition, admitting the validity of the contract, but claiming that plaintiff had breached it; that defendant was and continued to be ready, able, and willing to comply with his part of it and to exchange properties. He asked a decree against plaintiff for specific performance, with a prayer in the alternative for damages in case plaintiff had placed it beyond his power to perform. The plaintiff then was willing to drop the matter, and filed his motion to dismiss the action, alleging that he had never authorized it to be brought. The court tried out that issue first, and found against the plaintiff, who then filed a reply, and the cause went to trial before the court. Separate findings of the facts and conclusions of law were made at the request of plaintiff, and among these trade, the defendant took up the $200 incumbrance, and the release was noted on his abstract, which was returned to plaintiff for further examination. It appears also that a suit to foreclose one of the mortgages on the apartment house was pending in the district court of Wyandotte county, but defendant notified the plaintiff that arrangements had been made to dismiss the foreclosure and to extend the mortgage, and that he was. waiting to learn whether the plaintiff would arrange to procure an extension of the mortgages on the Nebraska land. The correspondence between the parties and their attorneys, concerning requirements in respect to the abstracts, continued for several weeks after the expiration of the 30 days agreed upon for the completion of the trade. The court found that the plaintiff failed to return For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes defendant's abstract after it was sent to him | 108 Pac. 834, 836, where the court used this the last time, or to answer inquiries re- language: specting the defendant's requirements as to "He cannot be permitted to blow hot and cold plaintiff's abstract, and that on April 14,-to seek the specific performance of a contract 1913, plaintiff notified defendant that he reand in the same action claim that the contract itself is void." fused to complete the trade, assigning as his reasons therefor that he had never made a valid contract, that defendant had failed to comply with his part of it, and that there were fraudulent representations made to him by defendant concerning the property and the incumbrances thereon. The particular matters which doubtless impelled the trial court to conclude that the judgment is inequitable are the facts stated in finding No. 13, namely, that at the time the contract was made, plaintiff's Nebraska land was worth $11,520, subject to $7,000 incumbrances, while the apartment house was worth only $5,000, and was incumbered for that amount, making the difference between the values of the properties $4,520, the amount for which the court gave defendant judgment. The plaintiff relies upon two assignments of error: First, that the court erred in its conclusions of law from the facts found; second, that it erred in rendering judgment in defendant's favor. The main contention is that the judgment is inequitable, and naturally much importance is attached to the statement of the trial judge that equitable considerations did not enter into its rendition. There is a statement in plaintiff's brief that this action was brought to recover as damages the commission which he paid to his agent "because of defendant's fraud in procuring the contract, and his failure to perform it." That portion of the statement which we have italicized is not supported by the abstract. The petition to which plaintiff refers contains no averment of fraud in procuring the contract, the cause of action being placed solely upon the alleged failure of defendant to perform. While the court permitted plaintiff to prove a misrepresentation with respect to the amount of incumbrances on the Kansas City property made by defendant's agent before the contract was executed, it must be apparent that the validity of the contract was not in issue. Nor could its validity or binding effect as to himself have been raised as an issue by the plaintiff. order to recover damages for its breach, it became necessary for him to affirm the contract, and as the trial court found, he did this when he brought his action on the con tract. In [1] It hardly seems necessary to cite authorities to show that when plaintiff elected to sue upon the contract for damages resulting from the alleged breach of its terms, he thereby ratified it as a valid contract, binding alike upon himself and the defendant. But, see, McNutt v. Nellans, 82 Kan. 424, 429, "After the right to rescind a contract has accrued, the party having the right may waive it the breach of the other party, since such an acby instituting an action to recover damages for tion is based upon an affirmance of the contract." 24 A. & E. Encycl. of Law, 647. [2, 3] The plaintiff assumes that because of the settled doctrine that specific performance is not a matter of right, but always an equitable remedy, the granting of which rests in the discretion of a court of equity, therefore a judgment for damages cannot be awarded when specific performance is found impossible, unless the court, in its discretion and upon a consideration of the equities of the whole case, concludes that it is just and fair to grant such relief. He doubtless relies upon a principle which is stated in the following language: "It is well settled that a court of equity will not grant pecuniary compensation is one for equitable interpoistion, and would enin lieu of performance, unless the case made out title the plaintiff to performance in specie but for the intervening facts." 26 A. & E. Encycl. of L. 86. .The doctrine, however, obviously has no application to an action for damages in a court of law. It is like many other rules governing the procedure in suits for specific performance which still obtain in equity courts, such, for instance, as the rule that where the plaintiff knows at the time he files the suit for specific performance that the contract cannot be specifically performed or decreed, he will not be allowed to recover compensation in the way of damages for the reason that a court of equity would have no jurisdiction. As noted in 20 Cyc. 487, "these rules are abrogated by the Code." Suppose the situation were reversed and all the advantages of the trade had been on plaintiff's side. He sues to recover damages for defendant's breach of the contract. Would it have been a sufficient defense to the cause of action for defendant to have pleaded that he had made a bad bargain; that the Nebraska land was not worth as much as the apartment house? Clearly not. tracts of sale, either in the price or property "Although inadequacy of consideration in consold, may be a ground of defense, yet the facility of contracting and the free exercise of the judgment and will of the parties require that, as a general rule, they should be sole judges as to the value of the benefits to be derived from their bargains. * * * And such is now the rule. For courts of equity, as well as courts of law, act upon the ground that every person who is not from his peculiar condition and circumstances under disability is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet, or profitable or unprofitable, or otherwise, are considerations, not for courts of justice, but for the party himself to deliberate upon." Story's Eq. Juris. § 244." Waterman on The Specific Performance of Contracts, § 179. In Missouri River, Ft. S. & G. R. Co. v. County of Miami, 12 Kan. 482, it was said: "Mere inadequacy of price affords no ground to set aside a contract of sale, unless it be of so gross a nature and given under such circumstances as to afford a necessary presumption of fraud or imposition." Syllabus. Trial courts frequently find it necessary to give judgments for damages for the breach of contracts which are harsh and inequitable, and this court is not permitted to reverse such judgments upon purely equitable considerations. The plaintiff cannot claim that he has been impaled upon the technicalities of the law. It is not a technical rule that one who is a party to a contract and who sues to recover damages for its breach, thereby affirms that the contract is valid and binding upon himself as well as the defendant. It is a substantive rule, founded in the very nature, essence, and reason of things, a rule which does not admit of exceptions for the purpose of allowing the plaintiff in such an action to change his foothold and, when met with a cross-demand of the other party based upon the theory that the contract is valid, then to assert that he is not bound by its terms. (96 Kan. 833) STATE ex rel. CASTER et al. v. FLANNEL- 1. (Supreme Court of Kansas. Jan. 18, 1916.) (Syllabus by the Court.) REMOVAL OF CAUSES 4 MANDAMUS"CIVIL ACTION." An original proceeding in mandamus is not removable from a state to a federal court for the reason that it is not a "civil action" within the meaning of the Removal Acts of Congress (Act March 3, 1911, c. 231, § 28, 36 Stat. 1094 (U. S. Comp. St. 1913, § 1010]). Causes, Cent. Dig. §§ 11-20; Dec. Dig. 4. ANCILLARY A suit which is ancillary and supplemental which is so connected with the original suit as to to one previously brought in a state court, and form an incident thereto, and to be substantially a continuation thereof, cannot be removed into a original suit has been previously or may be sidistrict court of the United States, unless the multaneously removed. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 21, 22; Dec. Dig. 5.] 3. MANDAMUS 3 COMPELLING PUBLIC SERVICE-EXISTENCE OF OTHER REMEDY. of the Public Utilities Commission to require a The Public Utilities Act makes it the duty public utility to render efficient service, and provides the machinery for an investigation by the Commission into all questions affecting the character and sufficiency of such service. This court will not entertain a proceeding in mandamus to compel a public utility to furnish efficient_and sufficient service until the Public Utilities Comfendant to furnish more efficient service, which mission has made an order requiring the dethe defendant has refused to obey. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 16-34; Dec. Dig. 3.j 4. MANDAMUS 16-ISSUANCE OF WRITRIGHT. Mandamus being a discretionary writ, the court will refuse to issue the writ where it would be useless, or futile, and of no public benefit. Cent. Dig. §§ 48, 59, 60; Dec. Dig. 16.] 5. COURTS ~~207 · INJUNCTION - JURISDICTION-SUPREME COURT. [4, 5] In plaintiff's brief it is asserted that there is no allegation in the cross-petition, or evidence, or finding, to the effect that "plaintiff had disposed of his Nebraska land or in some other way put it beyond his power to comply with the contract." An allegation of that kind was neither necessary nor proper in view of the theory upon which the crosspetition was based, which was that defendant desired specific performance, but if for any reason that relief could not be decreed he wanted his damages. Under the rules which prevailed before the adoption of codes, as already noted, an allegation, showing that the complainant was aware of the fact that specific performance could not be decreed, In an original proceeding in mandamus, a would have made the pleading subject to supplemental petition was filed asking the court to enjoin the defendants from prosecuting an demurrer. The cross-petition follows a form action begun in a federal court, the plaintiff approved in Henry v. McKittrick, 42 Kan. claiming that the jurisdiction of this court in 485, 22 Pac. 576. The defendant challenges with. Upon a consideration of the issues raised the original proceeding was thereby interfered the statement that there was no evidence by the pleadings, the court finds that nothing showing that plaintiff had disposed of his substantial remains to be determined in the origNebraska lands, and the challenge is sup-inal or supplemental proceeding, and the injunction is therefore denied and the proceeding in ported by filing here certified copies of deeds mandamus dismissed. executed by plaintiff, conveying the lands to a third party, which it appears were introduced in evidence, though not mentioned in the abstract. This disposes of the contention that there was no evidence of the fact; and the judgment in defendant's favor includes a finding that plaintiff had placed it beyond his power to perform the contract. The judgment must be affirmed. All the Justices concurring. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 597; Dec. Dig. 207.] Original mandamus by the State, on the relation of H. O. Caster, as Attorney for the Public Utilities Commission, and others, against Thomas J. Flannelly, as Judge of the District Court of Montgomery County, and John M. Landon and others, as Receivers of the Kansas Natural Gas Company, to secure vacation of a restraining order, wherein a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes petition was filed for removal and an injunc-|ed with the Utilities Commission a schedule tion order was requested. Petition for removal denied, injunction denied, and proceedings dismissed. of rates and rules in accordance with the order of December 10th, and since the filing of the schedule the receivers have been charging the rate thus established. On the 29th of December, 1915, the receivers filed a suit in the United States District Court for the District of Kansas against the Pubthe enforcement of the order of December lic Utilities Commission, seeking to enjoin 10th, alleging, in substance, that the receivers PORTER, J. This is an original proceed-are engaged in buying gas in the state of ing in mandamus. Oklahoma and in transporting it through It was brought August 17, 1915, by the Public Utilities Commission pipe lines into and through the state of Kanas plaintiff against Thomas J. Flannelly, sas and into the state of Missouri, and in judge of the district court of Montgomery producing gas in the state of Kansas; that county, and the receivers of the Kansas Nat- the gas taken in Oklahoma is commingled ural Gas Company, appointed by him. The with the gas produced in Kansas and dismain purpose of the proceeding was to va-tributed from the pipe lines to customers cate a restraining order issued by the dis- in both Kansas and Missouri, and that in so trict judge against the Utilities Commission affecting the rates to be charged for gas fur nished by the receivers to the public. The receivers filed an answer which, in addition to other defenses, alleged that on July 16, 1915, the Utilities Commission had made a doing, the receivers are engaged in interstate commerce; that the Public Utilities Commission of the state of Kansas has no jurisdiction to fix the rates and rules for the sale in Kansas; and further alleging that the orof gas by the receivers to their customers der of the Commission of December 10th is unlawful for the reason that the rates fixed are unreasonable and confiscatory. On January 3, 1916, the Public Utilities Commission presented an application in the original proceeding in mandamus, asking the court for an injunction order, restraining the receivers from further prosecuting the suit begun in the federal court. A temporary restraining order issued, and the application for a temporary injunction was set down for hearing. In the meantime, on January 7, 1916, the receivers of the gas company filed their petition for removal of the cause to the United States District Court for the District of Kansas. ruling denying their application for an order fixing a reasonable rate to be charged for gas supplied to their customers, and that the old rate was unreasonable and confiscatory. On October 4, 1915, a decision was rendered (State ex rel. v. Flannelly, 96 Kan. 372, 152 Pac. 22), in which it was held that the district court of Montgomery county obtained no jurisdiction over the Commission, and that its orders restraining the Commission from enforcing a rate should be vacated and set aside. The court at that time also held that the receivers of the gas company are under the control of the Utilities Commission; that the Commission has the exclusive power to fix the rates to be charged for the service rendered by the gas company while it is being operated by the receivers; that the receivers are not engaged in interstate commerce, at least that kind of interstate commerce which takes the business from the control of the state. It was held, however, that no writ of mandamus should issue, for two reasons: First, because the Public Utilities Commission had not in fact made a final order establishing a rate to be charged for gas; second, because It will not be necessary to consider many the old rate of 25 cents was shown by the of the legal propositions presented and urg findings of the Utilities Commission itself to ed at the hearing and in briefs submitted by be unreasonable and confiscatory. In the counsel on both sides, because in our view opinion it was held that the court would re- of the matter the controversy before us is tain jurisdiction of the cause as to the de- narrowed down to two questions. This befendant receivers "for such orders and judging an original proceeding in mandamus, it ments as may be hereafter made." cannot be removed to a federal court. On Thereafter, the Public Utilities Commis- May 18, 1915, we denied a petition for resion granted the receivers a rehearing of moval in the case of City of Garden City v. their application to fix a reasonable rate, Garden City Telephone, Light & Manufacand on December 10, 1915, the Commission turing Co., on the ground that, being an origissued a final order, establishing a rate of inal proceeding in mandamus, it was not re28 cents. The receivers accepted this rate movable. No opinion was written. In Rosen [1] The first question before the court at this time is the application of defendants for removal, which has been contested by the plaintiff. The petition for removal renews again the contention of the receivers that they are engaged in interstate commerce, and alleges that the order of December 10, 1915, established an unremunerative and confiscatory rate, which imposes a burden upon the interstate commerce conducted by them. |