icy of its intention to forfeit or cancel the sured 30 days' notice of its intention to forsame." feit or cancel the same.

We have examined all matters presented by the plaintiff, and are unable to agree with her in any of her contentions.

The judgment is affirmed. All the Justices concurring.

Section 2 of the same act in part reads: "Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policy holder shall have the right, at any time within thirty days after A. B. TEGLEY HARDWARE CO. v. CONsuch notice has been duly deposited in the post office, postage prepaid, and addressed to such policy holder to the address last known by such company, in which to pay such premium; and any attempt on the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void."

TINENTAL INS. CO. (No. 19868.) (Supreme Court of Kansas. Jan. 8, 1916.)

(Syllabus by the Court.)

INSURANCE 419-FIRE INSURANCE POLICY
-PROPERTY COVERED-INTENT.

Recovery can be had on a fire insurance policy covering merchandise contained in different buildings situated on two adjoining lots, although the property insured is described as being situated on one of the lots, where the evidence shows that the insurance agent and the owner intended to insure the property while in the buildings on either or both of the lots.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1122-1124; Dec. Dig. 419.]

The policy in controversy is a Nebraska contract, and its provisions are governed by the laws in effect in that state when the policy was issued. Grevenig v. Washington Life Ins. Co., 112 La. 879, 36 South. 790, 104 Am. St. Rep. 474; Smith v. Mut. Life Ins. Co. of N. Y. (C. C.) 5 Fed. 582; Cooley's Briefs on the Law of Insurance, vol. 1, pp. 655-660, and vol. 3, pp. 2290-2293; 25 Cyc. 747, 748; 7 Encyc. of U. S. Sup. Ct. Rep. 105. The presumption is that the laws of Nebraska are now the same as ours. No statute similar to ours has been cited to us G. H. Bailey, of Mankato, and Fyke & Snias being in existence in Nebraska. We have examined the laws of Nebraska, and are un- der, of Kansas City, Mo., for appellant. W. able to find a similar law in existence in that R. Mitchell, of Mankato, for appellee. state. We should not be compelled to resort to presumptions in such a matter when the fact can be ascertained definitely.

Disregarding the law of Nebraska, does chapter 212 of the Laws of 1913 control this policy? It was issued in August, 1912. The statute makes a radical change in the terms of the policy, a change which affects the rights of the parties thereto, and which, if intended to apply to policies issued before the passage of the act, must be held in violation of section 10 of article 1 of the Constitution of the United States, prohibiting the states from passing any law impairing the obligation of contracts. Shaw v. Berkshire Insurance Co., 103 Mass. 254; Joyce on Insurance, vol. 2, § 1105. There is nothing in the act, however, to show that it is intended to apply to any policies except those issued after its passage.

Appeal from District Court, Jewell County. Action by the A. B. Tegley Hardware Company against the Continental Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

form a fire insurance policy and to recover MARSHALL, J. This is an action to rethereon. The plaintiff recovered judgment. The defendant appeals.

The policy was issued for $1,000 on a stock of merchandise, consisting principally of wagons, buggies, plows, and other implements usually kept for sale in hardware and implement houses, also kaffir corn, alfalfa, and other seeds, automobiles, and all other goods, wares, and merchandise not more hazardous, kept for sale by the insured while contained in a one-story iron-clad metal roofed building and adjoining and communicating additions thereto, while occupied as a buggy and implement warehouse and for other purposes not more hazardous, situated on lot 6 of block 2, in Burr Oak, Kan. The plaintiff was engaged in the hardware business. Its buildings were situated on lots 6 and 7 of block 2. The kaffir corn, alfalfa, and other seeds kept for sale by the plaintiff were always kept in the building on lot 7. The plaintiff occupied several separate buildings situated on these lots. A fire destroyed the building and contents located on lot 7. The building on lot 6 extended about five feet over on lot 7. Neither the building on lot 6 nor the contents See, also, Hope Mut. Ins. Co. v. Flynn, 38 thereof were damaged. An automobile was Mo. 483, 90 Am. Dec. 438; Germania Life burned. The plaintiff then owned but one. Ins. Co. v. Peetz (Tex. Civ. App. 1898) 47 S. There were no seeds burned, but the other W. 687; Joyce on Insurance, vol. 2, § 1179. property burned fits the description set out Under the policy, it was not incumbent on in the policy. The defendant's agent that isthe defendant to give the plaintiff or the in-sued the policy was acquainted with the

"Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the Legislature that it shall so operate is unequivocally expressed.' Douglas County v. Woodward, 73 Kan. 238, syl. par. 1, 84 Pac. 1028; City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768.

The plaintiff contracted with the board of county commissioners to erect a bridge over a stream. The contract provided that the board of county commissioners would close the site of the bridge against traffic and would put the plaintiff in possession of the site for the purpose of building the bridge. Before performance the board of county commissioners undertook to repudiate the contract on the ground of ille-cinct showing relating to this subject, in congality. Held, mandamus is a proper remedy.

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

tiffs were the figures "300," indicating $300, while in the column of damages opposite the tract actually taken was the word "none." Held that, in view of the presumption and statement that the appraisers acted in accordance with the law, it can fairly be deduced from the entire report that they subtracted the value of the land taken from the benefits to the entire tract, giving a surplus of $300, amounting, at most, to an irregularity which could be remedied by an appeal taken at proper time, and hence injunction will not lie.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. 7.]

Appeal from District Court, Wyandotte County.

Action by C. C. Beard and another against the City of Kansas City, Kan. From a judgment for defendant, plaintiffs appeal. Affirmed.

David F. Carson and James T. Cochran, both of Kansas City, for appellants. R. J. Higgins, of Kansas City, for appellee.

It is argued that the law requiring, in case of an appeal, a bond that the party appealing will pay all costs if he does not recover a judgment for a greater amount than that allowed him by the appraisers (Gen. Stat. 1909, § 1024), implies that the report must specify the sum actually allowed. But it seems beyond question that the allowance of nothing gives the same right of appeal as the allowance of a nominal sum would give, and if in case the benefits exceed the damages the appraisers should simply report the overplus of the former, instead of the two amounts with the remainder, the only effect would seem to be that the party aggrieved could appeal with a much smaller bond than would be required in case the other method had been followed by the appraisers in their report. In Com'rs of Pottawatomie County v. O'Sullivan, 17 Kan. 58, a case involving the ap

road, in speaking of compensation to the owner, it was said:

WEST, J. The plaintiff sought to enjoin the city from taking possession of plaintiff's land for the purpose of opening a street under certain pretended condemnation proceedings, alleging, in substance, that they were void, and were had without in any manner assessing the damages caused thereby or as-propriation of a right of way for a public certaining the actual value of the land proposed to be taken, or assessing the actual damages to other property affected thereby, "But this compensation is secured if the inor assessing against the city the amount of dividual receive an amount which, with the dibenefit to the public generally, and also that tained by the appropriation. We, of course, exrect benefits accruing, will equal the loss susthe appraisers through mistake or by inad- clude the indirect and general benefits which vertence assumed or acted upon the presump-result to the public as a whole, and therefore tion that plaintiff's land was a part of a public highway, and therefore that no compensation was due them. The report of the appraisers was set out as an exhibit, and showed that the amount of damages assessed was nothing, and the amount of benefits was $300. The defendant demurred, and the demurrer was sustained upon the ground that facts sufficient to constitute a cause of action were not stated. Other complaints are made and other questions are argued, but the case turns upon the one point whether or not, under the amended petition and its exhibits,

the defendant is shown to have taken the plaintiff's land without the required allowance of damages.

The plaintiff insists that, in the face of the allegation that no such allowance was made and of the exhibited report showing the word "none" under the heading "amount of damages allowed," it cannot be said that the statutory requirement was followed. The city contends that the real fact is shown by the report of the appraisers, which is that they did their duty and assessed the benefits $300 greater than the damages, and simply stated in their report the difference, without giving the two basic items, the report itself stating that:

They "upon actual view proceeded to fairly

to the individual as one of the public; for he pays in taxation for his share of such general benefits." (Page 59 of 17 Kan.)

See, also, Tobie v. Com'rs of Brown County, 20 Kan. 14; Roberts v. County of Brown, 21 Kan. *247; Trosper v. Com'rs of Saline County, 27 Kan. 391.

The owner was entitled to the value of the land taken less the benefit to his remaining land. The report shows that both the tract owned by the plaintiffs and the part thereof taken for the proposed improvement were considered, and the special benefits to the former assessed. While it does not clearly appear that the value of the strip taken was fixed, yet, upon the assumption and the general statement in their report that the appraisers did their duty and followed the statute, there is a basis for believing that they, in fact, named as benefits the surplus over the value of the land taken. If this be true, it amounts to nothing more than an irregularity, and the statute has provided an appeal from the award of benefit or damages to be taken ten days after confirmation and notice thereof, and it is the opinion of the court that this remedy was proper and ample and the one to be availed of, and that injunction will not lie.

The judgment is affirmed. All the Justices

I notice requiring the defendant to repair the CITY OF TOPEKA v. CENTRAL SASH & sidewalk pleaded, it is not liable. DOOR CO. (No. 19797.)

1. INDEMNITY 13-DEFECTIVE SIDEWALK-condition to remain, but it did not in any RECOVERY AGAINST CITY LIABILITY OF ABUTTING PROPERTY OWNER.

Appeal from District Court, Shawnee use the walk does not relieve it from liability County.

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
*Rehearing denied February 18, 1916.

way of damages, has also been abrogated by the Code.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. 88 412-419; Dec. Dig.

128.]

4. SPECIFIC PERFORMANCE

115-CROSS-PETITION-DAMAGES IN LIEU OF SPECIFIC PERFORMANCE.

| is the finding that Dome had no authority to sign the contract as agent for plaintiff; that the contract never bound the plaintiff 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 in the sum of $4,520, and judgment was renmay set up a cross-petition, alleging that plaintiff 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 in this case, but the judgment is based solely considered by the court in rendering judgment suit in this case, has ratified said contract and upon the court's idea that plaintiff, in filing the 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