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tempted to alight while the car was in mo- | speed was it moving when she attempted to tion, and thus by her own fault received alight. While these questions were of themwhatever injury she suffered. There was selves proper, and should have been given, competent evidence to support both theories. the answer to question 5 was so nearly an The jury returned a general verdict in favor essential answer to all three that no prejudiof the plaintiff. cial error appears to have resulted from the rejection.

[1] The first assignment of error, the refusal to direct a verdict for the defendant, is, in face of the conflicting evidence, without merit.

Certain complaints touching the giving and refusing of instructions are made, but a careful examination of the entire matter leads to the conclusion that the jury were properly charged.

[2] There was an allegation that the conductor negligently failed to assist the plaintiff to alight, but not only was this feature of the case ignored in the instructions and but little attention paid to it in the evidence, but the counsel for appellant in their brief say that there is but one question involved the negligence in starting the car and the alleged contributory negligence of the plaintiff in attempting to alight while the car was in motion. Hence the refusal of certain instructions as to the duty of a conductor to help passengers to alight becomes immaterial. [3, 4] The defendant submitted ten questions, seven of which were answered and three of which were stricken out by the court. The seven had reference to the usual stopping place of the cars, to the slowing up of one on which the plaintiff was riding, to the nonaccidental nature of plaintiff's fall and the place where it occurred. In answer to question 10, the jury found that the plain

tiff fell from the car about 23 feet east of the

usual and customary stopping place at Eleventh street. Question 6, refused, was substantially covered by this.

Question-5 and the answer were:

"Do you find from the testimony that the car was slowing up for the Eleventh street stop when the plaintiff stepped or fell off the car? Answer: It slowed up and stopped."

Questions 3 and 4 were whether, when the plaintiff fell from the car, it was moving about 2 miles an hour, and, if not, at what

Counsel severely criticize the answer to question 2 that the plaintiff did not know that the usual and customary place of stopping was opposite the sidewalk on the west side of Eleventh street, and assert that it is directly contradictory to the testimony of the plaintiff herself that she knew the usual stopping place was "at a point where the rear steps of the car would be practically opposite the sidewalk." It seems to have been generally understood that the rule was to stop on the farther side of the street, and this the plaintiff, in effect, admitted, but had the question been answered the other way, and had the plaintiff, in fact, known that the usual and customary place for stopping was opposite the sidewalk on the west side of Eleventh street, such knowledge would not have precluded her from attempting to alight when she thought the car, in obedience to her signal or request, had come to a stop, although a few feet this side of the usual stopping place.

[5] It is contended that the finding that the car slowed up and stopped is against the overwhelming weight of the evidence, but there was some competent evidence to support such finding, there was no motion to set it aside, and it was approved by the trial court, and we cannot disturb it.

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1. BILLS AND NOTES

525-HOLDER IN DUE

COURSE-SUFFICIENCY OF EVIDENCE. Where a firm of real estate dealers received a promissory note as their commission for services in negotiating a land trade, and the maker became dissatisfied with the trade, and the real estate dealers and their attorney held a conference with the attorney for the maker to consider a cancellation of the contract and the surrender of the note, and the maker's attorney apprised them of the defenses to the enforcement of the contract, among which were want of consideration and fraud on the part of the payees, the question whether the attorney for the payees, who afterwards acquired the note before maturity, was a holder in due course and without notice of its infirmities, was properly submitted to the jury, and a general verdict and judgment against him will be sustained.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. 525.]

2. EVIDENCE-471-RESPONSES TO LEADING QUESTIONS-CONCLUSIONS OF LAW.

The affirmative responses of a witness to

two conclusions of law couched in the form of leading questions examined, and held to have been properly stricken from the record.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 2149-2185; Dec. Dig. 471.

Appeal from District Court, Finney County. Action by Harry Brice against Emma Hawk. From judgment for defendant, plaintiff appeals. Affirmed.

C. M. Williams, of Hutchinson, Harry Brice, of Cimarron, H. O. Trinkle, of Garden City, and L. A. Madison, of Dodge City, for appellant. W. E. Covert, Edgar Foster, and Hoskinson & Hoskinson, all of Garden City, for appellee.

the condition of Mrs. Hawk's health as well as her mind."

Mrs. Hawk's attorney testified:

"There was nothing said as to the enforcement or the collection of the note for the same reason. We discussed both the note and the

contract, the discussion was with reference to the cancellation of this contract. Of course, I a settlement by the delivery of the note and couldn't say at that time that there was any defense to the note outside of what would be the contract, because that is the first time I knew there was a note. I first heard of the note from Mr. Brice. I heard his testimony in which he said that I stated at that time that I did not know anything about the note, and that I said if she had given a note she would probably have to pay it. My theory was that the payment of this note was by way of compromise to secure the cancellation of that con

tract."

The appellant's testimony, in part, reads: "Well, all that was said about the note, Mr. Hoskinson didn't know there was a note given at that time, and he said the contract could be set aside, but he didn't know about the note, and I said 'What are you going to do about this note given by Mrs. Hawk?" and he said, 'Of course, if there is a note, they will have to pay it.""

No settlement was effected. A lawsuit followed between Benewell Cline and Emma Hawk over the land contract, in which the appellant, Harry Brice, was attorney for Cline. About two weeks after the conference in Garden City, between Mrs. Hawk's attorney and Gonder, McDonald, and Brice, the note was indorsed by the payees to Brice, and he brought this action on it. The record shows

that Mrs. Hawk prevailed in the action brought by Cline, and Brice, as his attorney; but whether that suit was commenced or whether Brice had been employed by Cline to prepare and file that suit before Brice acquired the note from Gonder, and McDonald is not shown.

Among the several defenses to the note were want of consideration, fraud on the part of the payees, and plaintiff's notice of the note's infirmities before he acquired it.

DAWSON, J. Some time in 1912, Gonder and McDonald, a real estate firm in Cimarron, arranged a real estate deal between Benewell Cline and Emma Hawk and her The appellant testified that the note was husband. For this service, Emma Hawk, the transferred to him in consideration of servappellee, gave Gonder and McDonald her ices as a lawyer and also for an equity in promissory note for $1,280, dated August 7, a quarter section of land. Then he testi1912, and due October 1, 1912. Not long fied: afterwards, Emma Hawk became dissatisfied with the deal and employed a Garden City lawyer to protect her interests. About September 7, 1912, the appellant, Harry Brice, a lawyer and abstractor of Cimarron, called on Mrs. Hawk's lawyer in Garden City, on behalf of Gonder and McDonald, seeking to effect a settlement of the trouble about the land deal between Hawk and Cline. Gonder and McDonald were also present at the conference. There was some discussion of a settlement whereby the note and land contract should be canceled. Mrs. Hawk's attorney contended that they could not enforce the contract; that Mrs. Hawk "had been taken advantage of, and on account of her age and inexperience in such matters and

"Q. And you bought this note for a valuable consideration, before maturity? A. Yes, sir. Q. And without knowledge of any defense fendant moved the court to strike from the rec against it? A. Yes, sir. Whereupon the deord that part of the testimony of the witness in regard to buying this note for a valuable consideration, same being a question of law. Motion sustained, and that part of testimony stricken out and withdrawn from the consideration of the jury, by the court. To which ruling of the court, the plaintiff, at the time, duly excepted."

The jury returned a general verdict for the defendant, and this appeal seeks a review of the ruling of the district court recited above.

[1, 2] The time when the note was acquired by Brice, the consideration, the facts pertinent to show the good faith of Brice, his

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
154 P.-18
*Rehearing denied February 18, 1916.

knowledge of the Cline-Hawk land trade for bequest to the plaintiff. The application was which the note was given to his clients, his denied, and the plaintiff appealed to the disemployment and efforts to settle the contro-trict court. After a trial the district court versy about the land trade-every pertinent sustained the action of the probate court, fact necessary to determine the question of and the plaintiff appeals. notice to plaintiff was in evidence. The two questions which brought the affirmative responses from the witness added no additional facts to what had been already developed. They were objectionable as merely calling for the affirmative assent of the witness to mere conclusions couched in the form of leading questions by plaintiff's counsel.

No question is raised touching the sufficiency of defendant's proof to show want of consideration on the part of Gonder and McDonald, so that phase of the case need not

be reviewed.

The district court made very full findings of fact. The last finding reads as follows: "From the evidence I find as a fact that by the eleventh paragraph of said will Mr. T. J. Small Memorial Home for Aged Women at Collins did not intend to give to the William Leavenworth, Kan., $8,000, or any other sum." It is argued that this finding is merely a conclusion of fact derived from specific facts previously found. The finding is a finding of the ultimate fact in issue, the intention of the testator. Conceding that the validity of the finding might be affected by other findings, there is none which is inconsistent with it. The plaintiff argues that the will must be interpreted to prevent intestacy if possible, and then argues from other provisions of the will and the facts and circumstances stated in the findings that the plaintiff sufficiently identified itself as the beneficiary named in the will. No useful pur

It is urged that appellant relied upon the statement of Mrs. Hawk's counsel: "If she has given a note, she will have to pay it." Mrs. Hawk's attorney heard of the note for the first time in that conversation, and his answer was based upon the theory, as he testified, "that the payment of the note was by way of compromise to secure the cancellation of the contract." The facts were sub-pose would be subserved by debating the facts with the plaintiff. mitted to the jury under careful and appropriate instructions to which no exceptions were taken, and the result cannot be dis

turbed.

The judgment is affirmed. All the Justices concurring.

(97 Kan. 87)

WILLIAM SMALL MEMORIAL HOME
FOR AGED WOMEN v. COLLINS'
ESTATE. (No. 19841.)
(Supreme Court of Kansas. Jan. 8, 1916.)

(Syllabus by the Court.)

314

EXECUTORS AND ADMINISTRATORS
PAYMENT OF BEQUEST-FINDINGS OF FACT
INTENT OF TESTATOR.

Findings of fact examined, and held to sustain the judgment rendered.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. 314.]

Appeal from District Court, Anderson County.

Action by the William Small Memorial Home for Aged Women against the estate of T. J. Collins. From judgment for defendant, plaintiff appeals. Affirmed.

Chas. W. Garrison and Manford Schoonover, both of Garnett, and W. W. Hooper, of Leavenworth, for appellant. Noah L. Bowman, of Garnett, for appellee.

BURCH, J. The will of T. J. Collins, deceased, contained the following bequest: "Eleventh. I give, devise, and bequeath to the Old Ladies' Home of Leavenworth, Kansas, the sum of eight thousand ($8,000.00) dollars."

Claiming to be the beneficiary intended, the plaintiff made application to the probate court for an order for payment of the amount of the

This court is satisfied with the conclusion

reached by the district court, and its judgment is affirmed. All the Justices concurring.

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(Syllabus by the Court.) BROKERS 54, 65 - RIGHT TO COMMISSION -PERFORMANCE-FRAud.

One who as agent undertakes to procure for a landowner a contract with another for the exchange of certain properties cannot recover his commission when the person he produces is not able, ready, and willing to perform, and when it also appears that such contract was fraudulently altered by such agent.

Dig. 88 48-50, 75-81; Dec. Dig. 54, 65.]
[Ed. Note. For other cases, see Brokers, Cent.
Appeal from District Court, Sedgwick
County.

Action by W. L. Van Horn against George Wetterhold. From judgment for defendant, plaintiff appeals. Affirmed.

Fred K. Hammers, of Wichita, for appellant. P. D. Gardiner, of Wichita, for appellee.

WEST, J. The plaintiff sued to recover a commission for procuring a contract of ex change between the defendant and G. A. Rucker for certain real properties. He averred that under the contract Rucker was to convey a certain tract of land free and clear of all incumbrances, except a mortgage of $6,000, all water rights to be paid and all taxes up to date.

The defendant answered that G. A. Rucker

no appearance made on behalf of the plaintiff in error, when the cases were called for final submission. The Attorney General has filed motions to dismiss the appeals, on the ground that the same have been abandoned. The motions to dismiss the appeals are ap

, was not able to carry out the terms of the | to pay a fine of $100. From the judgments, contract, and charged fraud in its procure-appeals were taken. ment and alteration. The testimony showed No brief had been filed in either case, and that the land in question had been sold at foreclosure, and the only conveyances offered to the defendant consisted of a general warranty deed from the fee owner to Glen A. Rucker conveying the land subject to a mort gage of $7,063, with interest thereon from October 2, 1911, back taxes $207.63, and wa-parently well taken. The appeals herein are ter tax $298.07, and a general warranty deed from Glen A. Rucker to the defendant conveying the land subject to an incumbrance of $6,000, which, by the terms of the deed, the grantee was to assume and agree to pay. It appeared that the incumbrances above the $6,000 could not be taken care of until Rucker procured the money for that purpose, and that he desired to use the property to be conveyed by the defendant as a basis for a loan to raise such money.

The jury found for the defendant generally, and also in answer to special questions that the defendant did not agree to pay the plaintiff for procuring the contract, that the contract had by the plaintiff been materially altered since its execution by changing a name and inserting approval, and that G. A. Rucker was not ready, willing, and able to carry out his part of the agreement for the exchange of properties. Findings were made in relation to other matters which need not be considered.

Various questions are argued, but the findings referred to, sufficiently supported by the evidence, preclude recovery by the plaintiff. The judgment is affirmed. All the Justices concurring.

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therefore dismissed, and the causes remanded
to the county court of Coal county, with di-
rections to cause its judgments therein to
be carried into execution.
Mandates forthwith.

LINDSEY et al. v. GOODMAN. (No. 6091.) (Supreme Court of Oklahoma. Feb. 8, 1916.)

Commissioners' Opinion, Division No. 4. Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge.

Action between L. W. Lindsey and another and Elizabeth Goodman, administrator of

the estate of Charles D. Goodman, deceased. From the judgment, the parties first menMotion to dismiss overtioned bring error.

ruled, and time allowed to prepare and file

briefs.

Chas. L. Fildes, of Tulsa, for plaintiffs in error. John Y. Murry, Jr., of Tulsa, for defendant in error.

WATTS, C. It is hereby recommended that the motion of defendant in error to dismiss the appeal be overruled, and defendant in error allowed 30 days in which to prepare and file briefs in this court.

PER CURIAM. Adopted in whole.

Appeals from County Court, Coal County; EMPORIA FEEDING & ELEVATOR CO. v. P. E. Wilhelm, Judge.

M. E. Keller was convicted of violations of the prohibition law in two cases, and appeals. Appeals dismissed.

Trice & Moore, of Coalgate, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State.

PER CURIAM. M. E. Keller, plaintiff in error, was tried and convicted in the county court of Coal county on two separate informations, each charging the unlawful sale of intoxicating liquor. In case No. A-2472, he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. In case No. A-2473, he was sentenced to be confined in the county jail for 30 days and

MANBY. (No. 8724.) (Supreme Court of Colorado.

Feb. 7, 1916.) Department 3. Error to District Court, City and County of Denver; Charles C. But

ler, Judge.

Action between the Emporia Feeding & Elevator Company and J. B. Manby. Judgment for Manby, and the Elevator Company brings error. Application for supersedeas denied, and judgment affirmed.

George P. Steele, of Denver, for plaintiff in error. H. A. Hicks and Charles Roach, both of Denver, for defendant in error.

PER CURIAM. Application for supersedeas denied, and judgment affirmed.

(79 Or. 617)

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PER CURIAM. On information filed in the county court of Nowata county, charging that in said county on the 11th day of November, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to wit, one-half pint of whisky and six one-half pints of alcohol, with the intent to sell the same, he was tried, convicted, and sentenced to be confined in the county jail for 60 days and to pay a fine of $100. From the judgment, he appeals.

No brief has been filed and the case was submitted on the merits. From a careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain.

HOY v. GORST.

(Supreme Court of Oregon. March 7, 1916.) APPEAL AND ERROR 1170-REVERSAL-EBRORS.

Under Const. art. 7, § 3, requiring affirmance of judgments in law actions notwithstandbeen rendered, a judgment in replevin will be afing errors if the judgment is such as should have firmed in spite of unsubstantial errors.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4034; Dec. Dig. 1170.]

Department 2. Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by Harry G. Hoy against V. G. Gorst. Judgment for defendant, and plaintiff appeals. Affirmed.

Harry G. Hoy, of Marshfield (Hoy & Miller, of Marshfield, on the brief), for appellant. John D. Goss, of Marshfield (John C. Kendall, of Marshfield, on the brief), for respondent.

PER CURIAM. This is an action in replevin to recover a Ford machine, called in the complaint an automobile. The evidence shows that plaintiff paid $35 for it, and that it was probably worth $90. There was a verdict for defendant, and plaintiff appeals.

There are some unsubstantial errors, but from the whole testimony we are satisfied that the verdict and judgment are such as

The judgment is therefore affirmed. Man- should have been rendered, and under the date forthwith.

BOLEN v. STATE.

(No. A-2476.)

(Criminal Court of Appeals of Oklahoma.

March 11, 1916.)

provisions of section 3, art. 7, of the Constitution, are affirmed.

(60 Colo. 477) BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. MCHENRY. (No. 8442.)

Appeal from County Court, Nowata Coun- (Supreme Court of Colorado. ty; F. A. Calvert, Judge.

Harve Bolen was convicted of a violation of the prohibitory law, and appeals. Affirmed.

H. O. Bland, of Nowata, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State.

PER CURIAM. On information filed in the county court of Nowata county, charging that in said county on the 7th day of December, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to wit, six one-half pints of whisky, with the intent to sell the same, he was tried, convicted, and sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment, he appeals.

No brief has been filed, and the case was submitted on the merits. From a careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain.

The judgment is therefore affirmed.

EVIDENCE

Jan. 3, 1916.) FRATERNAL BENEFIT QUESTION FOR

1. INSURANCE 825
INSURANCE

JURY.

In an action to recover on a policy of fra. ternal benefit insurance, on the issue whether the insured had been expelled from the lodge, it was a question for the jury whether entry in the minutes indicating such expulsion had been made subsequent to the meeting at which it purported to have been made.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. 825.] 2. APPEAL and Error 1002-SCOPE OF REVIEW - CONCLUSIVENESS OF FINDING BELOW.

Where the proper issues are submitted to the jury under instructions to which no complaint is made, the evidence upon those issues being conflicting, the court on appeal cannot disturb the finding below.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.]

Error to District Court, Las Animas County; A. W. McHendrie, Judge.

Action by Florence McHenry against the Brotherhood of Locomotive Firemen and Enginemen. To review a judgment for plain. tiff, defendant brings error. Affirmed.

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