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3. SamE-EVIDENCE.

A boy about 11 years of age was sent by his father to deliver a package to a passenger on a train which was expected to stop at the station. Held, that the boy, while engaged in making such delivery and returning to the station platform, was rightfully on the premises of the railroad company, and entitled to be protected at least by the exercise of ordinary care.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 869.] 4. SAJE.

When a railroad company causes a passenger train to stop on a side track, leaving other tracks between it and the depot platform, it is negligence to permit another train to pass between such passenger train and the depot at a high rate of speed, and without giving warning thereof by ringing the bell, sounding the whistle, or otherwise, while business is being rightfully transacted with the standing train, and the company will be liable to any person rightfully there who is injured thereby.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Railroads, $ 872.] (Syllabus by the Court.)

Error from District Court, Clay County; 0. L. Moore, Judge.

Action by Clarence McElroy against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wm. R. Smith, O. J. Wood, and A. A. Scott, for plaintiff in error. Coleman & Williams, for defendant in error.

GRAVES, J. Clarence McElroy, a boy about 11 years of age, was struck by a passing engine on the railroad of the plaintiff in error at the station of Aurora, in Cloud county, and was injured so that his left foot had to be amputated immediately in front of his ankle. He commenced this action in the district court of Clay county May 3, 1:9).), and recovered a judgment of $3,000. The railway company, being dissatisfied, brings the case here for review.

At the station of Aurora, the north-bound passenger train and the one going south pass each other. The north-bound

The north-bound train, as a rule, arrives first, and stops on a side track, leaving the main track between it and the depot platform. Passengers leaving the train and those getting on are compelled to cross over the main irack. If the train going south arrives before the north-bound train leaves, which it does ordinarily, no stop is madle until reaching the depot platform. . The plaintiff on the occasion in question was sent by his father, who was engaged in business at that place, to deliver a small package of merchandise to a passenger on the northbound train. The boy delivered the package to the passenger while the train was standing on the side track, and, before he got across the main track on his return, he was struck by the engine of the train going south as it was approaching the platfrom. Yo Warning by whistle, bell, or otherwise was given to indicate the coming of the train from the north. The plaintiff did not look

or listen for the incoming train, or take any care to avoid danger therefrom. Much has been said in argument concerning the degree of care due from the company to the plaintiff, and upon the question of plaintiff's contributory negligence. Many special questions of fact were submitted to and answered by the jury for the purpose of developing these propositions. In our view of the case, however, it will be unnecessary to consider all of the questions presented. Where a railroad company finds it necessary or convenient in the transaction of its business to have a passenger train stop on a side track, leaving one or more tracks between such train and the depot platforin, that method may be adopted, but if it is, then, as between the company and other people, the entire space between the depot and the train must be regarded the same as if it all together constituted the platform.

One of the special questions presented to the jury in this case, and its answer thereto, reads: "Q. 29. If you find that the defendant, the Atchison, Topeka & Santa Fé Railway Company, was negligent, then state fully, first, in what respect it wås negligent; and, second, what agent or employé was guilty of such negligence. A. Because it al. lowed the main track next to the station to be used as a platform to transfer passengers, baggage, mail, and express from the northhound passenger train, known as 'Yo. 307,' to and from the station, that said company had no proper signals, alarms, and safeguards at Aurora; second, that the train crew of the south-bound train No. 306 failed to either ring the bell or blow the wbistle on approaching the station." Under this finding of fact, it will be unnecessary to consider the strict legal relation existing between the plaintiff and the company, or to define the exact degree of diligence due from the company to the plaintiff. It is concealed that the plaintiff was rightfully where he received the injury, and that the company owed him at least reasonable and ordinary care. Under this conceded rule, we think the case may be decided. What constitutes ordinary care must always be determined from the circumstances of the situation being considered. 1 Thomp. on Neg. $ 25, it is said: "The care, caution, and diligence required by the law is always measured by the circumstances of the particular case, and the rule of admeasurement is the greater the hazard, the greater the care required.'”. The situation presented in this case shows that the plaintiff in error, when it ran the train going south into the station, was chargeable with notice that its patrons and other people were scattered over the space between the depot and the other train, engaged, as people are on such occasions, removing baggage, hurrying on and off the train, giving and receiving part. ing and welcoming salutations, and were gen. erally in a state of confusion, which would make them less liable to notice the approach

of danger and less prepared to avoid it than purpose, and that Ware had refused to acunder ordinary circumstances. It knew that count for or return the money upon demand. the people so situated had a right to feel Ware's answer was a general denial. On the secure and safe from any danger on account | trial it was shown that $150 was first paid, of the negligent operation of trains in their and later a payment of $2,350 was made, when midst, and would feel entirely free from any the following receipt was given: “Topeka, necessity for the exercise of care or caution. | Kans., Oct. 25, 1901. Received of E. C. SpinThese and other conditions always present | ney, twenty-three hundred and fifty dollars upon such occasions constitute the situation, ($2,350) to be used to pay necessary expenses by which nust be measured the degree of of combining the management of the National care with which a person of ordinary caution Aid Asso. and the Bankers' Union of the and prudence would run a passenger train World, as per contract, if such combination among people thus engaged. The conduct of shall be effected, and to be returned to E. C. the company in running its train at a high | Spinney, in case it is not. [Signed] M. Ware, rate of speed, without warning of any kind, S D. Cooley.' The preliminary agreement is was culpable negligence. The plaintiff and as follows: "Oct. 12, 1901. Memorandum of other persons there were under no duty or agreement between L. K. Lewis, president, s. obligation to anticipate and guard against D. Cou!ey, secretary, M. Ware, medical dinegligence on the part of the railroad com rector, Harry Wright, director, and the Napany. They had the right to feel secure tional Aid Association, and E. C. Spinney, from injury on account of passing trains. president and general manager of the BankThey might rest upon this feeling of security ers' Union of the World. (1) Cooley, Lewis, until warned or notified of danger. The ordi- Ware, and Wright agree to work faithfully nary rule of "look and listen" has no applica to secure a combination and amalgamation tion to such a situation. When a railroad of the National Aid and the Bankers' Union operates a train under such circumstances, it of the World. (2) Spinney and the Bankers' assumes the peril. These conclusions result

These conclusions result | Union of the World agree to pay Lewis, Coolfrom the application of the most obvious ey, Ware $12.500, as follows: $2,500 as needand familiar rules of human conduct. 2 ed subject to Ware's check, and $10,000 Shearman & Redfield on Neg. & 525; 1 Thomp. $1,000 a month. (3) Liabilities of which the on Veg. $8 25-31, 968 et seq.; 3 Thomp. on

Yational Aid has official notice not exceeding Veg. $ 270.); Tubbs v. Michigan Central Rail $27,330 uncontested, and $7,000 contested, to road Co., 107 Mich. 108, 64 N. W. 1061, 61 be assumed and agreed to be paid by the Am. St. Rep. 320; Terry v. Jewett, 78 X. Y.

Bankers' Union of the World and Spinney, 338; Brassell v. N. Y. Cent. & H. R. R. Co., according to constitution and by-laws of the 84 N. Y. 241; Denver & R. G. R. Co. v. Hodg- National Aid. (4) National Aid to turn over son, 18 Colo. 117, 31 Pac. 951.

office furniture and supplies, but no money The judgment is affirmed. All the Justices except $1,300 with National Security Comconcurring.

pany. (5) Pt. and Secy. personally gt. that official notice has been received of liabilities

in excess of amounts here named. (6) Spin(76 Kan. 289)

ney to pay all expenses directors coming toWARE v. SPINNEY.

gether if deal fails, not exceeding $150. L. (Supreme Court of Kansas. July 5, 1907. Re K. Lewis, Pres., S. D. Cooley, Secy., M. Ware. hearing Denied Oct. 5, 1907.)

Med. Dir., Harry Wright, Director, Bankers' CONTRACTS - ILLEGALITY - PARTIES IN PARI Union of the World, by E. C. Spinney, Pres.

DELICTO-RELIEF-PRINCIPAL AND AGENT and Gen. Mgr.” In the formal agreement ACCOUNTING.

subsequently made, signed by the officers of A principal who places money in the hands of an agent to be disbursed to others, and for

the two organizations and providing for their an illegal purpose, does not necessarily forfeit consolidation, the following stipulations were his right to such money, but may require the made concerning the money in question: "(3) agent to account to him for so much of it as has

The said E. C. Spinney and the Bankers' not been expended or appropriated to the unlawful purpose.

Union of the World, upon their part, agree [Ed. Note.For cases in point, see Cent. Dig. to pay to the said Lewis

, Cooley, Ware, and vol. 11. Contracts, $8 684, 688.)

Wright, to defray the necessary expenses of (Syllabus by the Court.)

the consummation of the said consolidation,

the sum of twenty-five hundred dollars, as the Error from District Court, Shawnee Coun

same shall be needed, which sum shall be subty; A. W. Dana, Judge.

ject to the check of the said M. Ware. In the Action by E. C. Spinney against M. Ware.

event that the said Lewis, Cooley, Ware, and Judgment for plaintiff, and defendant brings Wright shall earnestly and faithfully do all error. Affirmed.

in their power to consummate said consolidaAction to recover $2,500 given by Edmund tion, and shall, through no fault of theirs C. Spinney to M. Ware for the alleged pur or either of them fail therein, then, and in pose of paying the necessary expenses inci that event, the said E. C. Spinney and the said dent to the convening of the board of direc the Bankers' Union shall pay only one-half tors of the National Aid Association, but of the expenses of convening the said board which, it was alleged, was not used for that of directors of the said association, which,

in no event, shall exceed three hundred dol of October 26, 1901. (6) The directors' meetlars, one-half thereof, one hundred and fifty | ing of the board of directors of the National dollars, to be paid by the said E. C. Spinney.” Aid Association of October 26, 1901, was callIn the same contract was a provision to pay ed and held for the purpose of combining the Lewis, Cooley, and Ware the sum of $10,000 management of the National Aid Association in 30 equal monthly installments, which in and the Bankers' Union of the World. (7) stallments were evidenced by promissory | The combining the management of the Nanotes of the Bankers' Union by E. C. Spinney tional Aid Association and the Bankers' as president and also personally. These notes Union of the World contemplated was effectbecame the subject of controversy between ed by the resignation of the officers of the the Bankers' Union and W. T. Scott, an as National Aid Association and the election of signee of Ware, in which it was held that the such officers in their stead of persons dunion was not bound upon the notes, but that | ing the managing offices of the Bankers' Spinney was personally liable for their pay Union of the World, and such resignation, ment. Scott v. Bankers' Union, 73 Kan. 575, election, and substitution was fully effected 85 Pac. 601; Bankers' Union v. Crawford, 67 by the action of the directors' meeting of Kan. 449, 73 Pac. 79, 100 Am. St. Rep. 465. the board of directors of the National Aid

Upon all the testimony in the case the Association of October 26, 1901. (8) The court specially found: “(1) The defendant management of the National Aid Association and S. D. Cooley received from L. A. Stebbins and the Bankers' Union of the World was the sum of $150 paid to him by the plaintiff combined by the action of the directors' by his check of October 12, 1901.

(2) The meeting of October 26, 1901, of the board of $150 referred to in finding No. 1 was used directors of the National Aid Association. (9) and applied by S. D. ('ooley in part payment | None of the disbursements by the defendant of the expenses of holding the directors' meet of the $2,350 received by him from the plaining of October 26, 1901, of the board of di tiff by the deposit in the Central National rectors of the National Aid Association. (3)

Bank to the credit of said M. Ware were for The balance of the expenses of the directors' the necessary expenses of combining the manmeeting mentioned in the second finding here agement of the National Aid Association and in was paid by S. D. Cooley with the funds the Bankers' Union of the World other than of the National Aid Association. (312) That

the $670 paid Harry Wright and the $30 paid on October 26, 1901, the plaintiff deposited

for the banquet at the Hotel Throop. (10) in the Central National Bank of Topeka,

The plaintiff demanded of defendant the monKan., a draft or check drawn by the Bankers' ey remaining in his hands and not used in Union of the World on a bank in Omaha for

paying the necessary expenses of combining $1,400, and a check drawn by the plaintiff on

the management of the National Aid Associaa bank in Omaha for $1,000, and received in

tion and the Bankers' Union of the World lieu thereof a deposit slip or ticket showing

before the commencement of this action. that plaintiff had deposited to the credit of

(1012) That said defendant did not comply M. Ware $2,350 and $50 in cash. That said

with the demand made upon him by the money was received by said defendant to dis

plaintiff, and has not accounted for $1,650 burse to others in behalf of plaintiff. (4)

remaining of the $2,350 so received by him, The defendant received the $2.350 deposited

after paying Wright $670, and after paying by plaintiff in the Central National Bank to

$30 for the banquet at the Hotel Throop." the credit of said M. Ware on October 26,

Conclusion of Law: "Plaintiff is entitled 1901. (412) The court finds from the evidence

to judgment against defendant for $1,050, that the purpose for which the money in con

with interest at 6 per cent. from November

26, 1901." troversy was delivered to and placed in the hands of defendant was to bring about, ef

Judgment was accordingly entered, of

which Ware complains. fect, and consummate a combination and consolidation of the National Aid Association, a Geo. E. Overmeyer and Frank Doster, for fraternal beneficiary association, being a cor plaintiff in error. E. A. Austin, for defendporation organized under the laws of the ant in error. state of Kansas, and the Bankers' Union of the World, a fraternal beneficiary associa

JOHNSTON, C. J. (after stating the facts tion, being a corporation organized under the as abore). The error assigned by Ware is laws of the state of Nebraska, in pursuance that the judgment of the trial court was of and as provided in the written memo

against the law and the evidence, and conrandum of agreement of October 12, 1901, trary to the findings made by the court itself. as supplemented by the written contract of It is insisted that the evidence, written or October 26, 1901, in evidence herein. (5) oral, shows Ware to have been acting in a No part of said $2,350 deposited by the fiduciary capacity, that the money was paid plaintiff in the Central National Bank to the to him to induce a violation of a trust, and credit of said M. Ware on October 26, 1901, that, even if the $2,500 was given to Ware was used in paying the necessary expenses as Spinney's agent to pay the expenses of the of holding the directors' meeting of the board consolidation of the fraternal organizations, of directors of the National Aid Association it was still part of a contract wherein $10,

It is also carried out. This was not an action to en

000 was agreed to be paid to Ware and his illegal agreement or purpose has not been associates on personal account. said that there was an unexpressed purpose force the agreement between Spinney and his that the money should be corruptly used to agent, Ware, nor is the judgment rendered bring about the consolidation of the companies. by the court in any sense an affirmance of On the other hand, counsel for Spinney calls the agreement. Granting that the purpose of attention to testimony that the $2,500 was the parties is unlawful, the action is rather turned over to Ware to be used, as far as nec a repudiation of that purpose and a disaffirmessary, to pay the expenses of calling and hold ance of the agreement. "The broad rule has ing a meeting of the directors of the National | been laid down that, when money or property Aid Association, with a view of authorizing is delivered by a principal to his agent for an the consolidation and also to the receipt given illegal purpose or carrying into execution an when the money was paid, in which it was re illegal contract, the agent cannot set up such cited that it was to be used to pay the neces illegal object to prevent a recovery by the sary expenses of combining the organizations. principal from the agent of such money or IIe also refers to the formal contract, in property so long as it remains in his hands." which it was expressly stated that the $2,500 15 A. & E. Encyc. of Law, 1009. In the note was placed with Ware to defray the neces accompanying this text may be found a sary expenses of the consummation of the large number of sustaining authorities. The consolidation, as the same should be needed. agent cannot retain the money merely beThere is sufficient testimony to sustain the cause the transaction in contemplation was findings of the court as to the purpose for illegal. The illegality that defeats a recovwhich the money was paid. It was placed ery of the money is not in the intent alone. with Ware to be paid to others in accom It has been well said that: “Persons may plishment of that purpose, and not for his not be punished either in civil or criminal own use or benefit. This provision was in courts for unlawful intentions. It is the condependent of the one in which provision was summation of these unlawful intentions that made to turn over to Ware and others $10- places a party without the law. If the unlaw000 in notes, in payment of their personal ful intention is not carried out, if nothing is claims, and which were the subject of litiga done under it, my servant has my property tion in Scott v. Bankers' Union, 73 Kan. 575, and I am entitled to its return. As in the 85 Pac. 604. It is contended here that the present case he is acting under a special agentransaction was not contrary to good morals, cy which I have a right to revoke at any tim and attention is called to the fact that the before the performance, and when so revoked cited case proceeded on the theory that it I am entitled to my own. It cannot be bet. was not illegal. While it was there held ter public policy to deny me a recovery of the that the contract under which the notes were stock than to encourage my agent to commit given to Ware and others was not binding on a criminal offense." Wasserman v. Sloss, the Bankers' Union, it was enforceable against 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Spinney, who had individually signed the Am. St. Rep. 209. Until the contemplated acnotes. In speaking of the transfer of the tion is executed, the money converted to the membership of the National Aid Association, illegal use, the parties are given an opportuwhich was insolvent, to the Bankers' Union, nity to repent and rescind, and the doctrine which was a going concern, Justice Graves of locus penitentiæ, as it is called, is applied. remarked: "The transaction in which they "Seeing the error of his ways the law says a [the notes] were given was not unlawful or party may withdraw from the transaction; contrary to public policy. The consolidation and it extends to him a helping hand by offerof such corporations might be desirable and ing him the inducement of giving back to useful to both associations, and proper and him anything of value with which he bas legitimate in every way. The officers of the parted.” Wasserman 1. Sloss, supra. The National Aid Association did not attempt to same view was well expressed by the Supreme sell their company nor to betray their trust. Court of Maine where it was said that: They only undertook to advise with and urge “The law encourages a repudiation of the the subordinate lodges and members to con illegal contract, even by a guilty participator, sent to the proposed merger and this was as long as it remains an executory contract proper. The National Aid Association could or the illegal purpose has not been put in not exist alone, and any change which prom-operation. * * It best comports with ised protection to its certificate holders was public policy to arrest the illegal transaction desirable. We think this effort on the part before it is consummated." Tyler v. Carlisle, of the officers was not vicious, but commend 79 Me. 210, 9 Atl. 336, 1 Am. St. Rep. 301. able."

In Morgan v. Groff, 4 Barb. (N. Y.) 524, it Assuming, however, that the purpose was was said "that as long as the money depositunlawful, as some of the testimony tends to ed with an agent for an illegal purpose reshow, Spinney was not barred from a re mains unemployed, or if the purpose be councovery of so much of the money as was un termanded by the principal before its applicaexpended. The general rule is that the law tion, it is a debt which can be recovered from will not aid either party to an illegel agree the agent by the principal, either at law or nient, but an exception is made where the in equity.”

The principle of these cases has been adopted and applied in this state. In the case of Hardy v. Jones, 63 Kan. 8, 64 Pac. 969, 88 Am. St. Rep. 223, an action was brought by a principal to require his agents to account to him for money placed in their hands to purchase property at a judicial sale, under an agreement which had for its purpose the suppression of competition at the sale. After the sale there remained in the hands of the agents a portion of the fund placed in their hands, and they refused to account for this, on the ground that their agreement was void as against public policy. The court refused to listen to this reason or excuse, saying: "That as long as an illegal contract remains unexecuted neither party can be held to its terms. At any time before Hardy and Turbish had acted in behalf of Jones, the latter might have revoked their authority or they, upon their part, might have refused to execute their agency, but even in such case the agents could have been compelled to account to their principal for his money. So likewise will they be compelled to account for any unexpended balance remaining over from the execution of the illegal agreement. The surplus money now held by them is not held in pursuance of an illegal agreement to suppress competition at a judicial sale. The sale has been had, and the unexpended purchase money is now held by the plaintiff in error the same as they would hold any other inoney of the defendant in error." See, also, Pollock v. Agner, 54 Kan. 618, 38 Pac. 781; Peters v. Grim, 149 Pa. 164, 24 Atl. 192, 34 Am. St. Rep. 599; Adams Express Co. v. Reno, 48 Mo. 264; Bank v. Wallace, 61 N. H. 24; Norton v. Blinn, 39 Ohio St. 145; Kiewert v. Rindskopf, 46 Wis. 481, 1 X. W. 163, 32 Am. Rep. 731; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98;

St. Rep. 98; Congress, etc., Springs Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Wood on Master and Servant, § 202 ; Dunlap's Paley on Agency, *66; 9 Cyc. 551-557. The fact that Ware was an officer of and owed duties to the National Aid Association does not affect the application of the rule requiring him to account for the money received and not yet disbursed. It is assumed that he was acting unlawfully, but he was acting as the representative of Spinney, and held spinney's money to be used for the purpose stated. Under the rule of the authorities, it is his duty to account to Spinney for the unexpended portion of the money, and this duty does not arise out of the illegal agreement and purpose, but out of the receipt and retention of the money of another, and which has not been converted to the proposed illegal use.

There appears to be nothing substantial in the claim that there was a departure from the pleadings, nor do we find any ground for a reversal.

The judgment will therefore be affirmed. All the Justices concurring.

(76 Kan, 336) HAVEL V. DECATUR COUNTY AB,

STRACT CO. (Supreme Court of Kansas. July 5, 1907. Re

hearing Denied Oct. 5, 1907.) 1. TAXATION–Tax DEED-VALIDITY-IRREGULARITIES.

A tax deed, which has been recorded more than five years, and under which the purchaser and his grantee have, since its issuance, been in the actual continuous possession of the land, making valuable improvements thereon, will not be held void on its face by reason of not being in the exact form prescribed by the stat.. ute, provided all the essential facts prescribed in the statutory form are. by a fair construction of the language of the deed, therein recited.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 15, Taxation, $ 1501.] 2. SAME-RESIDEXCE OF PURCIIASER.

The residence of the purchaser who is named in a tax deed and who is not fictitious is not, in a legal sense, a recital therein, and the omission thereof will not render the deed void upon its face.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1.), Taxation, $ 1504.] (Syllabus by the Court.)

Error froin District Court, Rawlins County; A. C. T. Geiger, Judge.

Action by Rozi Havel against the Decatur County Abstract Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions to enter judgment for plaintiff.

The plaintiff in error brought suit in the district court of Rawlins county to quiet her title to a tract of land which she claimed to own in that county. The defendant abstract company answered, denying the plaintiff's title, and set up a mortgage on the land and asked a foreclosure thereof. At the trial, it developed that the plaintiff's title rested upon a tax deed issued to C. F. McGrew more than five years before the commencement of the action. The court adjudged the tax deed void, and allowed the plaintiff a first lien for taxes paid, and awarded the defendant a second lien for the amount of its mortgage, and ordered a foreclosure and sale of the lands to satisfy the liens. The plaintiff brings the case here.

J. P. Noble, for plaintiff in error. Dempster Scott, for defendant in error.

SMITH, J. As said in the brief of each party, the only question in this case is whether the tax deed is void upon its face. If the deed is void, the judgment should be affirmed; otherwise, the plaintiff is entitled to all the relief prayed for in her petition, and the defendant is entitled to nothing.

The deed was duly acknowledged and was duly recorded on the day following its issuance. The court also finds that the plaintiff and her immediate grantors had been in the actual possession of the land from the date of the deed to the time of the trial, and had paid all the subsequent taxes, and had made valuable improvements there

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