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that the drawer was not only accustomed to draw against deposits of this character, but actually did draw. These circumstances evince the parties' intention to treat the draft as a deposit of money, and therefore the title to the draft and the bill of lading attached is in the bank." p. 374. Of the situation arising even where a restricted indorsement indicates that draft is deposited for collection, it is said: "If, notwithstanding such restrictive indorsements, advances are actually made to the depositor, the title passes.

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The

mere crediting of paper thus indorsed to the depositor as cash does not transfer the title. If the depositor has a right to draw at once for the amount credited as though

it were a cash deposit, in some states the title passes; in others it does not pass until he has actually drawn." 5 Cyc. 497.

The bank in its interplea described itself as the owner of the proceeds of the draft. Whether its interest amounted to a full title or to a lien for what it had advanced is not material, since the controlling facts were fully developed. Whether the title to a draft passes to a bank which gives the depositor credit immediately upon its receipt depends upon the actual or presumed intention of the parties, and may, in a particular case, be a question of fact for a jury. Here the only direct testimony concerning the actual purpose of the McIntyre Company and the Auburn bank is to the effect that a purchase was intended, and not a deposit for collection. This testimony, however, probably amounted only to the statement of a legal conclusion. The character of the transaction is determined by the circumstances already stated. The draft bore a serial number placed upon it by the Auburn bank. A witness for the plaintiff testified that it was the practice of banks to assign such a number (corresponding to that entered in a register) to items which were received for collection, but not to those accepted as cash. This is relied upon as evidence to support a finding that the title to the draft remained in the company. We agree with the trial court that, upon all the evidence, the question of ownership was one of law, and that

the fact that a serial number had been assigned to the draft by the Auburn bank cannot affect the matter, in view of the other circumstances which serve fully to characterize the transaction.

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the District Court of Sherman County PPEAL by plaintiff from a judgment of sustaining a demurrer to his petition filed to enjoin the obstruction of a public highway. Affirmed.

The facts are stated in the opinion. Mr. John Hartzler, for appellant: Plaintiff suffered special damages peculiar to himself beyond that of the general public, and was entitled to an injunction.

Elliott, Roads & Streets, p. 500; Lippincott v. Lasher, 44 N. J. Eq. 120, 14 Atl. 103; Atchison & N. R. Co. v. Garside, 10 Kan. 552; Venard v. Cross, 8 Kan. 255; Mikesell v. Durkee, 34 Kan. 509, 9 Pac. 278; Hayden v. Stewart, 71 Kan. 11, 8C Pac. 43.

Mr. E. F. Murphy, for appellee:

Before a private citizen can be allowed to maintain an action for the redress of a public wrong, he must allege and show some interest personal and peculiar to himself that is not shared by or does not affect the general public, and it is not enough that his damages are greater than those sus

Headnote by PORTER, J.

Note. Does the fact that one is prevented by an unlawful obstruction from using a highway cause him a special damage which will sustain an action by him against the wrongdoer.

The earlier cases on this question are discussed in the note to Sholin v. Skamania Boom Co. 28 L.R.A. (N.S.) 1053.

In the case of the alteration of a road, one who, like all other travelers, is injured only by being required to pass over the new road instead of the old, does not suffer such a special injury as entitles him to enjoin Complaint is made of the rejection of the obstruction of the old road, although evidence offered by the plaintiff, but we the new road is much more hilly than the regard it as insufficient to influence the old, is not as good as the old, and can never be made as good. Bryan v. Petty, 162 Iowa, 62, 143 N. W. 987.

result.

The judgment is affirmed.

Petition for rehearing denied.

This case is approved in Bradford v. Fultz, Iowa, - 149 N. W. 925, where one who suffered no inconvenience other

tained by the general public, differing from; from a judgment sustaining a demurrer to them only in degree. his petition.

Jones v. Chanute, 63 Kan. 243, 65 Pac. 243; Barber County v. Smith, 48 Kan. 331, 29 Pac. 565; School Dist. v. Neil, 36 Kan. 617, 59 Am. Rep. 575, 14 Pac. 253; State R. Comrs. v. Symns Grocer Co. 53 Kan. 213, 35 Pac. 217; Coffeyville Min. & Gas Co. v. Citizens' Natural Gas & Min. Co. 55 Kan. 179, 40 Pac. 326; Mikesell v. Durkee, 34 Kan. 509, 9 Pac. 278; School Dist. v. Shadduck, 25 Kan. 467; Craft v. Jackson County, 5 Kan. 518; Amusement Syndicate Co. v. Topeka, 68 Kan. 802, 74 Pac. 606; Ruthstrom v. Peterson, 72 Kan. 680, 83

Pac. 825.

Mr. G. L. Calvert also for appellee.

The plaintiff is a stock grower and farmer, and owns and resides on a farm located in the state of Colorado adjoining the line between that state and Kansas. The defendant is the owner of land lying in Kansas immediately east of the lands of the plaintiff. It appears from the petition that there is a north and south road in Colorado adjoining plaintiff's land on the east, which road lies wholly within the state of Colorado, and that there is also through the lands of the plaintiff and which a road in Colorado running east and west is 200 yards south of his residence, and that

this east and west road intersects the north and south road and connects with a road in Kansas which the plaintiff claims the

Porter, J., delivered the opinion of the defendant has obstructed.

court:

Plaintiff brought suit to enjoin the obstruction of a public highway, and appeals than that suffered by the general public by an obstruction in a road, but was simply compelled to travel over another route just as convenient in point of distance as the old one, was held not entitled to maintain an action to enjoin the obstruction of the old road.

In Painter v. Gunderson, 123 Minn. 323, 143 N. W. 910, one who was accustomed to go to a lake, over a highway extending from another highway to the lake, and by boat in summer and on the ice in winter to a village across the lake and to other places, and who was accustomed to use the highway in hauling water from the lake for use on his farm and ice in the winter for storage, and in getting water from the lake for use in a threshing engine which he operated, was held not entitled to maintain an action to abate an obstruction of the road as a nuisance. The plaintiff was obliged to adopt a more circuitous route, and was unable to make use of water and ice from the lake as formerly. The plaintiff also alleged that his farm, which was in the neighborhood, was depreciated in value on account of the obstruction of the road.

The mere fact that one used a road was held not to show sufficient special interest in such person to entitle her to a mandatory injunction commanding the removing of the obstruction and restraining the further obstruction of the road. Owens v. Varnell, Tex. Civ. App. -. 145 S. W. 256. In the course of the opinion it is stated that "the bare statement that the road was used by appellee and her tenants to go to see their neighbors and children, to go to the county seat to pay taxes, and that it added to the value of appellee's place, will not suffice to show such special injury."

See also Wellborn V. Davies, 40 Ark. 83, set out in the opinion in BORTON V. MANGUS.

The plaintiff alleges that the obstructed road became a highway by special act of the legislature of Kansas (chapter 215,

On the contrary it has been held that one who uses a highway in going to and from his home to a distant tract of land owned by him at least twice each day sustains a special injury by the closing of the highway where he is required to travel another road about twice the length of the old road. Ingalls v. Eastman, 61 Wash. 289, 112 Pac. 372, following Sholin v. Skamania Boom Co. 56 Wash. 303, 28 L.R.A. (N.S.) 1053, 105 Pac. 632.

The cases covered in the present note and the earlier note supplemented hereby are intended to be limited to those in which the question of special damages is determined independently of damages to property. The line between these two classes of cases has not always been kept distinct, as will be noticed from some cases included in the present note, viz., Painter v. Gunderson, and Ingalls v. Eastman, supra; but cases which turn upon the ownership of neighboring property have been excluded.

(See in this connection note to Hyde v. Fall River, 2 L.R.A. (N.S.) 269, and Newark v. Hatt, 30 L.R.A. (N.S.) 637, as to right of property owner whose means of access from one direction is shut off or interfered with by closing of adjoining street or portion of street upon which he is situated; and notes to Sloss v. Sheffield Steel & I. Co. v. Johnson, 8 L.R.A. (N.S.) 227, and Stoutemyer v. Sharp, 21 L.R.A. (N.S.) 75, as to obstruction in highway preventing access to property except by a circuitous route, as a special injury entitling owner to maintain action for damages or to abate the nuisance.)

As to a private right of action for obstruction of a navigable stream, see Viebahn v. Crow Wing County, 3 L.R.A. (N.S.) 1126, and note, and the subsequent case of David Swain & Son v. Chicago, B. & Q. R. Co. and note appended thereto, 38 L.R.A. (N.S.)|

763.

W. A. E.

Laws of 1887) declaring all section lines in Sherman and certain other counties in Kansas to be public highways, and to be of the width of 60 feet. The section line between sections 19 and 30 in township S of range 42 in Sherman county runs through the tract of land owned by the defendant, and the plaintiff alleges that by virtue of this act of the legislature and the use by the public for a number of years it became a public highway. The town of Kanorado is in Kansas and is the postoffice and market town of the plaintiff. When the road in question was opened and used by the public, the plaintiff could travel from his farm in Colorado to the town of Kanorado, and it furnished the nearest highway to the town from his land and residence. He alleges that the defendant has erected and maintains buildings and fences thereon, and that the obstruction compels him, in order to reach the town of Kanorado, to drive about mile south on the north and south road in Colorado, then by an angling road northeast to town; and that on every trip he makes to the town, either for business or pleasure, he must travel about 2 miles more by reason of such obstruction.

It will be observed that there is no allegation in the petition that the plaintiff is denied ingress to or egress from his farm by reason of the obstruction, and, indeed, the facts show that his lands do not abut upon the road which defendant has obstructed. The obstructed road lies wholly within the state of Kansas; his farm lies in Colorado. The allegation is that the obstructed road intersects the north and south highway along the state line, and is a continuation of an east and west road which runs 200 yards south of plaintiff's residence. It therefore affirmatively appears that he has ample means to get to and from his farm by the highways in Colorado.

feet wide on the west side of the road adjoining the land belonging to the plaintiff, and, because the court could not judicially declare that a 20-foot strip of land was too narrow for plaintiff's use as a road to and alongside of his land, it was held that he failed to show special damages different in character from that sustained by the public at large. In the opinion it was said: "The only special right which an abutting owner has in a public highway is that of access to his premises. When he has passed from

his land into the road, his right to travel there is not different from the right enjoyed by other members of the community." Page 680 of 72 Kan.

In Sargent v. George, 56 Vt. 627, the court refused relief by injunction where the damage complained of was the obstruction of a passageway leading from a house to the street for the reason that but a few rods distant there existed another way equally available and in daily use. One who has occasion to pass over a highway more frequently than others does not sustain special damages peculiar to himself beyond that of the general public, which would entitle him to relief by injunction. In Wellborn v. Davies, 40 Ark. 83, it was held that the inconvenience resulting to a physician in visiting his patients caused by the obstruction of a public road by fences is not a special injury different from that which every citizen suffers whose business or pleasure may cause him to travel the road. It is of the same character, only perhaps different in degree, from that which others suffer who have other business and live far away.

In Crook v. Pitcher, 61 Md. 510, it was held that the fact that one who had very frequent occasion to use a highway is obliged to travel a longer road because of an ob struction does not show a special damage different from that which the public sustains. To the same effect is Jacksonville, T. & K. W. R. Co. v. Thompson, 34 Fla. 346, 26 L.R.A. 410, 16 So. 282; Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813. There is some conflict of authority upon this question in the different states. See notes in 7 L.R.A. (N.S.) 73; and 28 L.R.A.(N.S.) 1053.

The rule is firmly established in this state and is of general application everywhere that, to entitle a private individual to invoke the interposition of a court of equity to restrain a public nuisance arising from an obstruction of a public highway, he must show special damages apprehended or sustained peculiar to himself and different in character from those suffered by the public at large. Venard v. Cross, 8 Kan. 248; Trosper v. Saline County, 27 Kan. 391; Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825. In the latter case the court terpreted the petition to mean that a public road 40 feet wide was established on the west side of a tract of land and along the east side of the land belonging to the plaintiff. The obstruction interfered with the east 20 feet of the road, but left a strip 20munity." (P. 680.)

The allegations in the petition are to the effect that the plaintiff can and does go from his land to a public road and reaches the market town in Kansas by traveling in-one-half mile south, and then by a road northeast to Kanorado. As said in Ruthstrom v. Peterson, supra: "When he has passed from his land into the road his right to travel there is not different from the right enjoyed by other members of the com

effect on contract.

145

2. A usage or custom, to be a guide in the construction of contracts, must be uniform, reasonable, and generally known.

The same principle would seem to apply the original offer, his power to accept it here. There is a road which reaches his without renewal was gone. land and by which he can pass to and from Custom town. The inconvenience resulting to him from the obstruction of the road is of the same character that every citizen suffers who, from business or pleasure, has occasion to travel the road. It may differ in degree, but not in kind, from that which others suffer who have occasion to use the road. He is not denied access to his land by the alleged obstruction, but is merely required, like others, to travel a longer distance between his land and the town.

If the state line between Kansas and Colorado were located a mile farther west than it is, and the plaintiff's land lay in this state, and the road when open, as the plaintiff contends it should be, extended from the town to the road running north and south along the plaintiff's land, he could not enjoin the obstruction complained of because he would still have free access to his land, and would be unable to show that he sustained a damage different in kind and character from that suffered by the public at large. It will therefore be unnecessary to discuss the interesting question whether the action is transitory or local, or whether the courts of this state would entertain jurisdiction in a suit by a nonresident to enjoin the obstruction of a highway in Kansas upon the theory that the obstruction closed a road and resulted in denying him access to or egress from lands in Colorado. It is said in the abstract that the court sustained the demurrer on the ground that the plaintiff lacked legal capacity to sue, which was one of the grounds of the demurrer, as was also the ground that the petition failed to state a cause of action. The plaintiff has legal capacity to sue, but, being in court, is unable to state facts which constitute a cause of action entitling him to relief.

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(February 19, 1913.)

PPEAL by defendant from a judgment Division, of the Circuit Court for Jefferof the Common Pleas Branch, Second an action brought to recover the price of son County, dismissing his counterclaim in plaintiff to defendant. Affirmed. three cars of lumber sold and delivered by

The facts are stated in the opinion. Mr. Harry A. Shaw, for appellant: question of custom, shows a complete conThe correspondence, regardless of any tract for five cars of flooring.

854, 8 L.R.A. (N.S.) 433, 124 Am. St. Rep. Louisville & N. R. Co. v. Coyle, 123 Ky. 384, 97 S. W. 772; Eckert v. Schoch, 155 Pa. 530, 26 Atl. 654; Bauman v. McManus, 75 Kan. 106, 10 L.R.A. (N.S.) 1138, 89 Pac. 15; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. 678; John Single Paper Co. v. Hammermill Paper Co. 96 App. Div. 535, 89 N. Y. Supp. 116; Anglo-American Provision Co. v. Prentiss, 157 Ill. 513, 42 N. E. 157.

Where it is alleged that there is a custom by which certain terms were understood to be implied in an offer, which would make the acceptance complete and unqualified, then whether or not such custom exists is a question of fact, and upon evidence of such custom being produced, it should be submitted to the jury to determine whether or not it does exist.

ton Oil Co. 136 Ky. 843, 122 S. W. 852, 125 Postal Teleg. Cable Co. v. Louisville CotS. W. 266.

Though there has been no absolute acceptance of an order, yet, when the correspondence of the parties plainly recognizes The judgment therefore will be affirmed. the existence of a contract, whereby one

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party is led to believe that he in fact had Note.-Right to accept offer after submitting counter proposition.

It is well established that an offer must be accepted in order to constitute a contract; and, also, that it must be accepted upon the terms and conditions contained in the offer. An aceptance upon new and different terms proposed by the acceptor cannot bind the one first making the offer, in the absence of his assent to the new and different terms so proposed.

The counter proposition made by the person to whom the offer is addressed, according to the weight of authority, operates as a rejection of the original offer. Mechem, Sales, § 229; Elliott, Contr. § 41; Page, Contr. § 46; 9 Cyc. 290.

contract.

John Single Paper Co. v. Hammermill Paper Co. 96 App. Div. 535, 89 N. Y. Supp. 106; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. 678; Bauman v. McManus, 75 Kan. 106, 10 L.R.A. (N.S.) 1138, 89 Pac. 15.

a contract, and acted in reliance thereon would have made upon the lumber if reto his damage, the other party will be es- ceived. By an amended answer it was furtopped from denying the existence of the ther alleged by appellant that the contract it had with appellee for the purchase of the lumber in question was made by means of letters which passed between them, and these letters, both those written by appellant to appellee and those received by it from the latter on the subject of the lumber, were introduced in evidence on the trial of the case. The burden of proof was upon the appellant to establish its set-off and counterclaim, and, after the introduction of its v. evidence, the court, upon appellee's motion, peremptorily instructed the jury to find

Though an acceptance, when really qualified, can never complete a contract, it will not in all cases operate as a rejection of the pending offer.

Mechem, Sales, art. 230; Johnson King, 2 Bing. 270, 9 J. B. Moore, 482. Messrs. Duffin, Sapinsky, & Duflin for for it. Thereupon judgment was entered appellee.

dismissing appellant's set-off and counterclaim, and allowing appellee its debt and

Settle, J., delivered the opinion of the costs, and from that judgment this appeal

court:

The appellee sued the appellant in the court below upon an account of three carloads of lumber sold and shipped it, aggregating $538.45; and for the further sum of $2.04 paid by appellee to a notary public for protesting a draft it drew upon appellant for the amount of the above account, which draft the latter refused to pay, thereby necessitating its protest for nonpayment. The petition credited appellant on the amount thus sued for with $194.87 freight charges paid by the latter upon two carloads of the lumber, leaving a balance of $345.62, for which judgment was prayed. Appellee's claim was not controverted by appellant, but the latter pleaded, in its answer, a set-off and counterclaim by way of damages for a larger amount, resulting, as alleged, from appellee's breach of a contract for the sale and delivery to it of five other cars of lumber; the damages thus claimed being, as alleged, profits, after deducting freight charges, which appellant

It follows from the fact that the counter | proposition is a rejection of the original of fer, that such offer ceases, and the person to whom it was addressed, and who has made a counter proposition, cannot thereafter accept it.

In Frith v. Lawrence, 1 Paige, 434, where the person to whom an offer was addressed accepted it conditionally, it is stated that he, having declined to accept the offer as proposed, could not, by any subsequent assent to the original offer, make a valid contract binding on the person thus making the offer.

Thus, an offer by the lessor to cancel a lease on certain terms, to which offer the lessee makes reply proposing other terms, cannot, after the proposal of the other terms, be accepted by the lessee. Fox v. Turner, 1 Ill. App. 153.

is prosecuted. As there could have been no misapplication of the law by the trial court in granting the peremptory instruction, if the letters relied on by appellant to prove the contract alleged to have been made by it with appellee failed to do so, the question presented for our decision by the appeal is mainly one of fact.

In our opinion only four of the several letters found in the record throw any real light upon the question of fact to be determined. These include the letter from appellant to appellee of June 19, 1909, the answer of appellee thereto of June 22, 1909, that of appellant to appellee of June 24, 1909, and appellee's answer to same of June 28, 1909. These four letters are in words and figures as follows:

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We have orders for the following stock standing that you will deliver to me all the papers you have in reference to the land, U. S. patent and other deeds,” cannot thereafter be unconditionally accepted by the person to whom addressed. Egger v. Nesbitt, 122 Mo. 667, 43 Am. St. Rep. 596, 27 S. W. 385.

In Flomerfelt v. Hume Bros. 11 Tex. Civ. App. 30, 31 S. W. 679, where a third person proposed to assume the indebtedness of a firm on certain conditions, to which a creditor of the firm replied, offering other conditions, it is stated that this new proposition was equivalent to a rejection of the original proposal, and the original offer thereby lost its vitality, and could not thereafter be accepted by the creditors to whom it was made.

One who, in reply to an offer to furnish any number of tons of iron rails, not less An offer to convey land by a quitclaim than 2,000 nor more than 5,000, on terms deed, to which the person addressed replies, specified, writes the person making the offer, accepting the proposition "with the under-directing him to enter an order for 1,200

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