obligation; and, so far as the second proposition is concerned, while the suretes might be held to take notice that the Legislature could extend the term, they would not be required to take notice that the Legislature in such an event would make no provision for the giving of a bond by the treasurer for the extended term. The sureties had a right to take notice of the law as it existed, and to contract with reference to the law as it existed; that is, the law which would naturally be in their minds when they entered into the contract. And the idea that they would at such a time enter into a speculative calculation of what the law might be in the future, and shape their contract with reference to such possible change, is a strained one. The law at that time made the office one of a definite term. That term was two years, and the sureties had a right to, and no doubt did, take that law into consideration, and that was the law that was imported into their contract. There is no doubt that the central idea was that the term was for two years. This was the law. This was the ordinary state of affairs, and the ordinary time for which bonds for county officers were given. A man might willingly go on a bond for two years who would hesitate or absolutely refuse to go on for a longer period."

We think the view taken by both the referee and the trial court as to the nonliability of the sureties is in accordance with sound reason, as well as with the weight of authority. The question as to the sheriff himself however, must be decided upon other considerations. While the petition necessarily states facts sufficient to constitute a cause of action against him for the violation of his official duty, if he is to be held in this proreeding, it must be upon the bond itself, since it is only by reason of declaring upon that that the plaintiff was able to proceed against him and the bondsmen in the same action. He stands upon a very different footing from that of the sureties. He can invoke no liberality of construction or leniency of treatment. Moreover, while the bond was in a sense a contract even as to him, he executed it in compliance with the statute. as a prerequisite to his induction into office. It was on his part a mere acknowledgment of obligations which the law devolved upon him. The extension of his term was a benefit conferred rather than a burden imposed upon him. Unlike the sureties, he had it in his power to end his responsibility at any time by resignation. He could not have taken the office without having executed the bond, and his continuing to act as sheriff was a constantly renewed assertion of its vitality. Notwithstanding the exemption of the sureties, the principal e nnot be heard to say that his own liability upon the bond had ceased while he was in effect asserting a right under it.

The judgment is affirmed. All the Justices concurring.

DAUB v. McCOY.

(76 Kan. 360)

(Supreme Court of Kansas. July 5, 1907.) APPEAL-REVIEW-GRANT OF NEW TRIAL.

Where a district court properly sets aside a verdict in favor of the defendant on the ground of misconduct of the jury, and grants a new trial, this court, pending such new trial, cannot, at the instance of the defendant, reverse the decision of the district court and direct a judgment in favor of the defendant upon the merits of the case.

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by David J. McCoy against Henry Daub. Motion by plaintiff to set aside verdict for defendant. From an order granting new trial, defendant brings error. Affirmed.

Hazen & Gaw, for plaintiff in error. Robert D. Garver, for defendant in error.

GRAVES, J. This was an action to recover damages for breach of contract, commenced in the district court of Shawnee county. On the trial the defendant recovered a verdict. On motion of the plaintiff, the verdict was set aside, and a new trial granted. The defendant brings the case here and asks this court to reverse the order of the court granting a new trial, and, in addition thereto, to direct a judgment in his favor.

The new trial was granted on account of misconduct of the jury during their deliberations. The plaintiff in error insists that the verdict was right, regardless of the methods by which it was reached. In fact, he claims that, under the law, the plaintiff has no right to recover against the defendant in any view of the case. But the question for the consideration of this court is, did the district

not.

court err in granting a new trial on the ground of misconduct of the jury? We think This is as far as we need to inquire. A new trial has been granted, and this court cannot assume that the trial court will not administer the law correctly upon the new trial. Until the case is finally disposed of by the trial court, this court cannot review the case on its merits.

The judgment of the district court is affirmed. All the Justices concurring.

will not be enjoined merely because the city officials entertain and express an intention to expend the money to be derived in equipping the plant to supply electric power to the inhabitants of the city.

(Syllabus by the Court.)

expend the money to be derived from the sale of the bonds when issued in equipping the proposed electric light plant to supply electric power to inhabitants of the city. The people of Clay Center voted these bonds to raise money to be expended for a specified

Action by the state against the city of Clay Center and others. Judgment for defendants, and plaintiff brings error. Affirmed.

F. S. Jackson, Atty. Gen., Coleman & Williams, and John E. Hessin, for the State. F. P. Harkness and Dawes & Rutherford, for defendants in error.

BURCH, J. The action in the district court was commenced to restrain the defendants from issuing, selling, and delivering bonds of the city in the sum of $25,000, which had been voted at a special election for the purpose of constructing works to supply the inhabitants of the city with electric light. The election was held under the provisions of chapter 101, p. 137, of the Session Laws of 1905. Section 2 of the act reads as follows: "Whenever the city council of any such city shall desire to procure authority for the issuance of bonds under the terms of this act, they shall pass an ordinance directing the calling of an election for the submission of the question to the electors thereof. Notice for such election shall state the amount of bonds proposed to be issued, the purpose of the issue, and state the polling place or places at which the election will be held. Said notice shall be signed by the mayor and city clerk and shall be published in at least one newspaper for three consecutive weeks. The first publication of said notice to be at least twenty days prior to the day fixed for such election."

The ordinance directing the calling of the election and the notice of the election were published in the same issue of the official newspaper. It is claimed that the ordinance became effective only after publication, that no authority existed to call the election until after the ordinance was in force, and hence that the first publication of the notice cannot be counted. The objection is technical in the extreme, and involves a refinement in respect to time which the court is not inclined to regard. The moment the ordinance took effect authority to call the election and publish notice of it existed. That moment the authority was exercised, and the notice appeared, and the circumstance that the two facts occurred simultaneously cannot impair the notice. If authority in support of the principle be necessary, it may be found in the cases of Clark v. City of Janesville, 10 Wis. 136, and Warsop v. City of Hastings, 22 Minn. 437.

On the trial evidence was offered and rejected to the effect that the city officials entertained and had expressed an intention to

and sold in execution of that purpose. If after that has been done an attempt should be made to misappropriate the funds obtained, there will be time enough to determine what is a misappropriation and to interfere, if necessary.

The judgment of the district court denying an injunction is affirmed. All the Justices concurring.

Where a rehearing is granted generally, the case stands as though no hearing had been had, and all points and questions that might have been presented on the original hearing may be presented on the rehearing.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3241, 3243.] 2. SPECIFIC PERFORMANCE-PERFORMANCE OF CONDITIONS PRECEDENT.

Where an action is brought for the specific performance of a contract, in order to recover, the plaintiff must show that he has performed all of the provisions of the contract to be performed by him, or that he is able, ready, and willing to perform them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 249-256.] 3. SAME.

Where the judgment and decree does not require the performance of conditions precedent in a contract before declaring the specific performance of the contract, the judgment will be set aside.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 426.] 4. SAME.

Held, under the provisions of the contract sued on, the appellant Kerns was entitled to receive from the corporation stipulated to be organized one-tenth of the capital stock, fully paid up and nonassessable until after all the other nine-tenths of the capital stock of the corporation had paid 10 cents per share to said corporation for the development of the mining claims involved in this case.

5. SAME.

In this case all of the material issues presented by the pleadings should have been determined by the findings of fact and judgment. 6. CONTRACTS-PERFORMANCE.

Under the provisions of said contract, K. and C., the parties thereto, both being residents of this state at the time the contract was, entered into, were to form a corporation, and as it appears from the record. C. organized the plaintiff corporation under the laws of the state of Washington without the consent of K. that the organization of the plaintiff corporation was not a compliance with the terms of said contract and that K. had a right, under the terms of said contract, to insist on the organization of such corporation under the laws of the state of Idaho.

(Syllabus by the Court.)

Held,

Action by the Olympia Mining Company against A. G. Kerns and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

J. H. Forney and John P. Gray, for appellants. A. E. Mayhew and E. C. Macdon ald, for respondent.

SULLIVAN, J. This action was commenced by the Olympia Mining Company, a corporation, as plaintiff, against Abner G. Kerns, William J. Hall, and the Federal Mining & Smelting Company, a corporation, as defendants, for the purpose of having the plaintiff corporation declared the equitable owner of an undivided three-fourths interest in the Olympia, Portland, Seattle, Alice, Olympia Fraction, Pacific, Darling, Diamond Fraction, and an undivided onefourth interest in the Rose and Lincoln lode mining claims, all situated along Nine Mile creek, in Placer Center and Lalande mining districts, Shoshone county, and to compel the appellant Kerns to convey to the plaintiff corporation by good and sufficient deed an undivided three-fourths interest in and to said mining claims, upon the payment to him of $900, with interest, and upon delivery to him of 100,000 shares of the capital stock of the plaintiff corporation, paid up to the amount of 10 cents per share, and to compel the defendant the Federal Mining & Smelting Company to convey to the plaintiff an undivided one-fourth interest to each of said miring claims upon the payment to it of $3,300, with interest thereon.

This action is based upon the following contract or agreement, to wit: "This agree ment, made and entered into on this 28th day of May, 1901, by and between Clarence Cunningham, party of the first part, and A. G. Kearns, party of the second part, all of the city of Wallace, county of Shoshone, state of Idaho, witnesseth: Whereas, the estate of Edward T. Elom, deceased, is the owner of an undivided five-eighths of the Olympia, Seattle, Portland, Olympia Fraction, and Alice, and an undivided one-half of the Darling, Pacific, Rose, Lincoln, and Diamond Fraction, lode mining claims, situated in the Placer Center and Lalande mining districts, in the county of Shoshone, state of Idaho, lying between the Mammoth and Sixteen to One mines, and south of the Custer mine, and the party of the second part is the owner of the other portion of the said mining claims, except the Rose and Lincoln; and whereas, the party of the second part as such co-owner has petitioned the probate court for an order of sale of the interest of the estate of said deceased in said mining claims, and said petition is to be heard on the 3d day of June, 1901, and it is anticipated that an order for the sale of said property will be made; and whereas, it is the desire of the parties hereto to purchase

ties, if the same can be bought for a reasonable sum and upon reasonable terms, for the purpose of consolidating all of the interests therein, and forming a mining corporation to prospect, develop, and work said mining claims; and whereas, the party of the first part is about to leave the state of Idaho, expecting to be absent for a period of two months, more or less, and the sale of said premises may occur during said period: It is therefore mutually agreed that the party of the second part shall offer to purchase and purchase the interest of the estate of said decedent in said mining claims, if the same can be purchased for the appraised value of said premises, or any less sum, and that the party of the first part will assume and be responsible for the bid and purchase of the party of the second part, and furnish the necessary money to make such purchase at the time when called for by the party of the second part. And in consideration of the premises, and the services to be so rendered by the party of the second part, it is further mutually agreed that said party of the second part shall be entitled to one-tenth of all of said mining claims, in which he at present has no ownership. And it is further mutually agreed that upon the formation of the corporation hereinbefore referred to, which corporation is to be formed as soon as practicable after making said purchase, the party of the second part shall have and be entitled to onetenth of the stock of said corporation, which stock shall be fully paid up and nonassessable until after all of the other nine-tenths of the stock have paid 10 cents per share to said corporation for the development of said mining claims. And as a further consideration the party of the first part hereby agrees to do and perform on each of said mining claims the assessment work required for the year 1901, free of expense to the party of the second part. And as a further stipulation the party of the second part agrees to convey to the party of the first part, or his assigns, all his right, title, and interest in said mining claims for the sum of $5,000, to be paid upon completion of the purchase of the interest of said estate in the premises or sooner. Witness our hands and seals this 28th day of May, 1901. Clarence Cunningham. A. G. Kerns.”

It is alleged in the complaint: That, pursuant to said agreement, the defendant Kerns did prosecute a proceeding in the probate court asking for a sale of the interest of Edward T. Elom, deceased, in and to said mining claims, and procured an order from said court on the 3d day of June, 1901, directing the sale thereof. That thereafter, on the 20th day of July, said Kerns did purchase at public sale the said interest for the sum of $2,500 of which $500 was paid in cash, and the remaining portion, $2,000, was secured by mortgage upon said mining inter

ests due and payable within one year from the date thereof, and that said sale was confirmed thereafter by said court. That thereafter, pursuant to said agreement. Clarence Cunningham, the first party to said agreement, representing himself and his associates, did expend approximately the sum of $25,000 in developing and working the said claims, and they did pay the said Kerns $4,100 on account of the payment of the $5,000 due said Kerns under said agreement, together with one-tenth of all of said mining claims upou the formation of the corporation referred to in said contract, which interest was represented by 100,000 shares of the capital stock of plaintiff, which stock was to be fully paid up and nonassessable until after the other nine-tenths of the stock had paid 10 cents per share to said corporation for the development of said mining claims, which was the consideration paid for the interests held by Kerns in said mining claims and for services to be rendered by him in securing patents therefor. That the sum of $500, the first payment on the purchase price of said Elom's interest, was paid to said Kerns by the said Cunningham and his associates. That after the confirmation of said sale the administratrix of the estate of the said Elom, deceased, executed and delivered a deed to said mining interests belonging to the estate of the said Elom to said Kerns, grantee, and that said Kerns made and executed to said administratrix of said estate a mortgage upon said mining interests to secure the payment of the balance due therefor. That said Kerus took the title to said mining interests in trust for the corporation provided to be formed under the terms of said agreement. That it was understood and agreed between said Kerns and the said Cunningham and his associates that their successor in interest, the corporation to be formed, would furnish the additional money necessary to pay for the said interests and to pay the said mortgage when it became necessary to pay the same in order to protect said trust estate. That after the purchase of said Elom's interest as aforesaid, and after receiving deed therefor, said Kerns did make, execute, and deliver a declaration of trust as follows: "I, A. G. Kerns, of the city of Wallace, county of Shoshone, state of Idaho, do hereby declare and acknowledge that I hold the legal title to the following interests in certain mining claims in trust for the use and benefit of a corporation to be hereafter formed and to be named the Olympia Mining Company, provided Clarence C'unningham, of the city of Wallace, in the county of Shoshone, state of Idaho, or the said corporation, shall comply with the provisions of an agreement in writing, dated the 28th day of May, 1901, between the said Clarence Cunningham and the said A. G. Kerns. The said mining premises being particularly described as follows, to wit: the Olympia lode mining claim the Portland lode mining claim; the Seattle lode mining claim; the Alice lode

mining claim; the Olympia Fraction lode mining claim; the Darling lode mining claim; the Pacific lode mining claim; the Diamond Fraction lode mining claim; one-half of the Rose lode mining claim; one-half of the Lincoln lode mining claim-all situated on the divide between Canyon creek and the East Fork of Nine Mile creek, in Placer Center and Lalande mining district, county of Shoshone, state of Idaho. Dated this 17th day of August, 1901. Witness my hand and seal. A. G. Kerns. [Seal.]" That thereafter said Kerns, in his own name and in fact as trustee for the said contemplated corporation, applied for United States patents for part of said mining claims. That in applying for said patents the said Kerns acted only as trustee for said corporation to be formed under the terms of said agreement and declaration of trust. That he was also acting as agent and attorney for said corporation and the parties organizing the same, and that said parties furnished and paid all the necessary expenses of said application for patent. That said Cunningham and his associates, by and with the full consent of the said Kerns, and under the terms of said agreement and declaration of trust, continued to expend money in the development of said mining claims up to and until about the 1st day of March, 1903, pursuant to said agreement, and the said Cunningham and his associates, acting in pursuance of said agreement and declaration of trust, caused to be organized the plaintiff corporation under the laws of the state of Washington, with a capital of $1,000,000, divided into 1,000,000 shares, of the par value of $1 each. That said Kerns was notified of said organization, and acquiesced in and concurred therein, and agreed to the same, and made no objection thereto. That thereafter said corporation duly complied with all the laws of the state of Idaho authorizing it to hold mining claims and prosecute business in said state, and that it is now authorized to take and hold and convey real estate and to do business in said state. That in the year 1903, after the organization of the plaintiff company, on account of large expenditures made by the incorporators in the development of said mining claims and in the payments made to said Kerns by the plaintiff corporation, there was not sufficient money in the treasury of said company to pay said mortgage, and that said Cunningham, who had the management of the affairs of the company and was about to leave for a trip to Alaska. entered into an arrangement, for and on behalf of the plaintiff corporation, with J. C. Cunningham, vice president of the company, and F. Cushing Moore and Francis Jenkins, stockholders of the company, that, in case payment of said mortgage should be insisted upon, they would advance the money for the company to pay the same, and notified said Kerns of such arrangement, and directed him that, in case payment should be insisted upon, he should

call upon said parties for the money to pay said mortgage, and that Kerns promised to do so. That on or about the 1st day of June, 1903, the administratrix of the estate of the said Elom, deceased, did commence an action to foreclose said mortgage. That said Kerns did not notify the plaintiff corporation, nor said Cunningham, nor any of the officers or stockholders of the said company, but permitted a decree and judgment of foreclosure to be entered directing the sale of said mining claims to pay said mortgage. That the date of said sale was fixed, and the said J. C. Cunningham, vice president of the company, for the purpose of protecting the plaintiff corporation, did advance the money for the plaintiff to bid in the said property at the sale, and did bid the same in in his own name for the use and benefit of the plaintiff company, and received the sheriff's certificate of sale, receiving the same and holding the same in trust for the plaintiff corporation upon the repayment of the amount of money so paid by him, all of which was well known to the defendant Kerns. That thereafter, on the 18th day of August, 1904, the defendant Kerns, in violation of his said trust and with intent to cheat and defraud the plaintiff, and in violation of the confidence reposed in him as attorney for the plaintiff, sold and conveyed to the defendant William J. Hall an undivided one-fourth interest in said mining claims, and received therefor the sum of $3,300, and with the said money he redeemed said property from said sheriff's sale, and at the same time the said Kerns entered into an agreement with the defendant Hall to sell and convey to him the remaining interest in said claims. That at the said time said Hall well knew the said property in equity belonged to the plaintiff, and well knew that the said defendant Kerns held the legal title in trust for the plaintiff and had no legal right to sell and convey the same. That said Hall, in making said purchase and contract, was acting as the agent for the defendant the Federal Mining & Smelting Company, and said company furnished the money which was paid to said Kerns as aforesaid. That in making said sale to said Hall and entering into said contract with him the said Kerns violated the trust and confidence reposed in him as trustee of the plaintiff for the sole and simple purpose of defrauding the plaintiff and securing to himself an additional sum of money. That on the 29th day of May, 1905. the plaintiff corporation demanded of said Kerns the deed conveying all the Olympia, Portlan1, Seattle, Alice, Olympia Fraction. Darling, Pacific, and Diamond Fraction, and an undivided one-fourth interest in and to the Rose and Lincoln, lode mining claims aforesaid, and tendered to said Kerns in lawful money of the United States $900 and a certificate for 1,9 shares of the capital stock of the plaintiff corporation, which certificate of stock was paid up to the amount of 10 cents per share, for all that was due

him under the original contract between said Cunningham and said Kerns, and for his services as attorney as aforesaid. That the plaintiff has been at all times, and is now. ready and willing to make said payment. and now brings said money and stock into court to be delivered to him. Then follows prayer for the relief above indicated.

Many of the formal allegations of the complaint were admitted by the answer, and denials of other allegations put in issue many of its material allegations. For a separate and second defense the defendant Kerns sets up the transaction which occurred between him and Cunningham in detail, and sets up the violation of said contract by Cunningham, in that he failed to make the payment required by said contract and perform the work required to be performed by him upon said claims, and in the formation of the corporation under the laws of the state of Washington, instead of under the laws of the state of Idaho; that he was required to spend large sums of money in protecting his own interests in said mining claims during the years 1903, 1904, and 1905 because of the failure of the said Cunningham to keep his part of said agreement; that by reason of such negligence and laches by said Cunningham, and his breach of said agreement, he impaired the title of the defendant Kerns by making the default in said payments and allowing the premises to be sold to a stranger. The defendants Hall and the Federal Mining & Smelting Company answered, denying many of the allegations of the complaint, and as an affirmative defense, among other allegations. alleged that they had advanced the defendant Kerns $3,300, which sum was devoted and used in redeeming said mining property from said foreclosure sale and paying the necessary expenses for obtaining patents thereto; that thereafter said Kerns executed a deed to said Hall, but really for the use and benefit of said mining company, being an undivided one-fourth interest in and to said mining claims, and that said Hall held said one-fourth interest for the use and benefit of said mining company, and now holds the same for that purpose; that at the time he executed said deed said Kerns entered into an agreement with said Hall for the purchase of the remaining three-fourths interest in said mining claims; that said contract of purchase was entered into for and on behalf of said mining company; that said contracts were made with said Kerns without any knowledge, information, or belief of any right, title, or claim on the part of the plaintiff corporation in and to said mining claims or any of them. It is further alleged that the money so advanced by Hall was used to perfect the title to said mining claims. and that, in case it is adjudged that the plaintiff is the owner of said premises, said defendants in equity ought to be reimbursed for said advances with interest thereon; and