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is concurrent and operative at the time of the collision, and contributes to it, there can be no recovery.

To the same effect are these extracts: "There is no testimony suggesting negligence on the part of the driver that does not convict Doyle of an equal or greater degree of negligence. One had no better opportunity to anticipate the accident nor any better means of preventing it than the other. If, therefore, there was negligence, it was concurring negligence, continuous and mutual up to the instant of the accident, which disentitles the plaintiff to recover." Consumers' Brewing Co. v. Doyle's Adm'x, 102 Va. 403, 46 S. E. 391. "In numerous cases it has been held that the plaintiff's conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened. contact with some agency, under the control of the defendant, when the plaintiff cannot, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. The rule does not apply where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof." Robards V. Indianapolis St. Ry. Co. (Ind. App.) 67 N. E. 953. "The plaintiff must show that at some point of time, in view of the entire situation, including the plaintiff's negligence, the defendant was thereafter culpably negligent. and its negligence the latest in, the succession of causes. In such case the plaintiff's negligence would not be the proximate cause of the injury. * ** The plaintiff not only negligently put himself in a place of peril, but continued negligently to move on to the catastrophe until it happened. The language of the doctrine of prior and subsequent negligence implies that the principle is not applicable when the negligence of the plaintiff and that of the defendant are practically simultaneous." Butler v. Rockland, etc.. St. Ry. Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267.

In Green v. Los Angeles, etc., Ry. Co., 143 Cal. 31, 76 Pac. 719, 101 Am. St. Rep. 68, it is said of the rule holding the plaintiff liable notwithstanding the contributory negligence of plaintiff: "It applies in cases where the defendant. knowing of plaintiff's danger, and that it is obvious that he cannot extricate himself from it. fails to do something which it is in his power to do to avoid the injury. It has no application, however, to a case where both parties are guilty of concurrent acts of negligence, each of which, at the very time when the accident occurs, contributes to it." Of the same rule

it is said in O'Brien v. McGlinchy, 68 Me. 552: "This rule applies usually in cases where the plaintiff, or his property, is in some position of danger from a threatened contact with some agency under the control of defendants, when the plaintiff cannot, and the defendant can, prevent the injury. ** * But this principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them." In Smith v. Railroad, 114 N. C. 728, 755, 19 S. E. 863, 923, 25 L. R. A. 287, the general rule is thus concretely stated: "Applying the rule which we have stated to accidents upon railroad tracks, it may be illustrated as follows: First. There must be a duty imposed upon the engineer, as otherwise there can be no negligence to which the negligence of the injured party is to contribute. The duty under consideration is to keep a vigilant lookout in order to discover and avoid injury to persons who may be on the track and who are apparently in unconscious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision, when he could have do so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence of the engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A., being on the track and after this decisive negligence, fails to look and listen, and is in consequence run over and injured, his negligence is not concurrent merely, but really subsequent to that of the engineer, and he cannot recover, as he, and not the engineer, has 'the last clear opportunity of avoiding the accident.' If, however, A. is on the track, and while there, and before the decisive negligence of the engineer, he by his own negligence becomes so entangled in the rails that he cannot extricate himself in time to avoid the collision, and his helpless condition could have been discovered had the engineer exercised ordinary care, then the negligence of A. would be previous to that of the engineer, and the engineer's negligence would be the proximate cause; he, and not A., having the last clear opportunity of avoiding the injury. The same result would follow in the case of a wagon negligently stalled, when no effort of the owner could remove it, and there are other cases to which the principle is applicable." The principle running through these cases is reasonable, is consistent with the general rules that have met with practically universal acceptance, and, if adhered to, will correct a part of the confusion now attending the application of the law of contributory negligence.

The judgment is affirmed. All the Justices concurring.

(74 Kan. 542)

ZIEIIME et al. v. PARISH. (Supreme Court of Kansas. Nov. 10, 1906.) 1. SALES-CONTRACT-ACCEPTANCE.

A written order executed and delivered by a retail dealer to a wholesale dealer to ship certain articles of merchandise at a specified price, constitutes a contract of purchase and sale when the order is accepted by the wholesale dealer and the goods are shipped in accordance with the order.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43. Sales, §§ 44, 46.]

2. SAME--CONSIDERATION.

The shipping of the goods is a sufficient consideration to sustain the contract, and, in an action based upon such contract, it is not necessary to entitle him to recover for the plaintiff to prove the value of the goods. 3. SAME--CONSTRUCTION OF CONTRACT.

When the order contains the following: "Terms: Cash Disc.: 6% 10 days, 3% 20 days, net 30 days. Special time payments: 14 due in 4 months, 14 due in 6 months, 14 due in 8 months, 14 due in 10 months. Special time payments must be closed by note within ten days" and the purchaser refuses after more than 10 days has elapsed to execute notes in accordance with the conditions for the purchase price, the entire bill becomes due in 30 days.

(Syllabus by the Court.)

Error from District Court, Cloud County; W. T. Dillon, Judge.

Action by Albert E. Ziehme and Sidney I. Redfield. partners under the name of St. Louis Jewelry Company, against Susan B. Parish. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

The plaintiffs brought suit before a justice of the peace on a written and printed order for $169 worth of jewelry, and alleged that they shipped the goods as directed, and that the defendant received the same, and that the price thereof was due and unpaid. The defendant denied on oath the execution of the order, and alleged that the contract was not for a purchase of the goods but for an agency to sell on commission. Also alleged want of consideration and admitted receipt of the goods. The plaintiffs obtained judgment, and the defendant appealed to the district

court of the county, Cloud. The case was

tried in the district court on the pleadings

filed below. After the introduction of the plaintiff's evidence a demurrer thereto was sustained. judgment was rendered for the defendant, and the plaintiffs bring the case here.

C. W. Van De Mark, for plaintiff in error. Al. Wilmoth, for defendant in error.

SMITH, J. (after stating the facts). The only error alleged which need be considered is the sustaining of the demurrer to plaintiff's evidence and rendering judgment for

the defendant.

The demurrer was upon three grounds: (1) That there was no evidence tending to prove the execution of the written order. (2) That the evidence does not tend to preve any consideration for the contract. (3) That

the evidence does not tend to show that any sum was due. A part of the evidence introduced was the following from the deposition of J. W. Barnes: "Q. In your former answer you mention an order blank and the terms of the same. Please state if this is the order signed by Susan B. Parish, to be hereto attached and marked 'Exhibit A.' A. Yes." Exhibit A was then introduced in evidence, and, omitting the long list of articles attached which footed up to $196, it reads as follows: "No claims for deficiencies will be

allowed unless made immediately after receipt of goods. Agreements made with salesmen are not binding on us unless specified on original order returned to us. St. Louis Jewelry Co., Wholesale Jewelers, Broadway & Chestnut St., St. Louis, Mo. No goods taken back for credit. All goods f. o. b. St. Louis. Sold to Terms: Cash Disc.: 6% 10 days, 3% 20 days, net 30 days. Special time payments: 4 due in 4 months. 14 due in 6 months, 14 due in 8 months, 14 due in 10 months. Special time payments must be closed by note within 10 days. List of Goods. [Omitted.]

"Our Warranty. Any jewelry purchased of us that may prove defective or does not give reasonable satisfaction may be returned to us any time within 5 years from date, and we will forward a new duplicate article in place of it. Any jewelry purchased of us that does not sell readily may be exchanged within one year for new styles and pattern of any jewelry in our stock. Purchaser must prepay all express charges on repairs or exchange.

"Our Advertising Plan. [Omitted.]
"St. Louis Jewelry Co.

"St. Louis Jewelry Co.: Ship us above goods on special time payment. Terms. Su

san B. Parish, Customer. Salesman, J. W. Barnes. Post Office, Como. State, Ks. Express office, Miltonvale, Ks."

The defendant was also sworn on behalf of plaintiffs, and identified the following

letter, which was introduced in evidence:

"9/12. 1904. Como, Kans.

You must take your julery back or leave it "St. Louis Julery Co.-Sir: Yours at hand as your agent ask for you sent an over-stock of of goods. 37.00 is what the agent said would be the amount and you have sent $196.00 worth. it is out of reason for a place like this. this gangling is hurting my trade.

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cordance therewith shows a completed contract and a consideration therefor. The conditions of the order were that the bill became due in 30 days unless time payments were secured by notes due in four, six, eight, and ten months, each for one-fourth of the amount of the bill. We think the evidence while meager was sufficient to entitle the plaintiffs to recover, and that the court erred in sustaining the demurrer and in rendering judgment for the defendant.

The judgment is reversed, and the case is remanded, with instructions to grant a new trial. All the Justices concurring.

(4 Kan. 554)

CROSS v. HERMAN et al. (Supreme Court of Kansas. Nov. 10, 1906.) TAXATION-TAX DEED-VALIDITY.

A tax deed, which has been recorded more than five years, is not void on its face, merely because it shows the sale of two or more tracts of land together, when such tracts appear from their description, as given in such deed, to be contiguous.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1354.]

(Syllabus by the Court.)

Error from District Court, Finney County; Wm. Easton Hutchison, Judge.

Action by James Cross against D. W. Herman and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Hoskinson & Hoskinson, for plaintiff in error. Sutton & Scates and W. R. Hopkins, for defendants in error.

GRAVES, J. This is an action of eject

The plaintiff in error owns the original or patent title to the land in controversy, and to recover possession thereof he commenced this action in the district court of Finney county, October 9, 1903. The defendants were in possession of the land claiming to be the owners thereof by virtue of two tax deeds. The first of these tax deeds, in point of time, was executed to D. W. Herman and J. W. Herman, jointly, on August 3, 1897, and was recorded August 5, 1897. The plaintiff in error contends that this deed is void on its face for the reason that it appears therefrom that two separate tracts of land were sold together. The land conveyed by this deed is described therein as follows: "N. 2 of N. E. 4 of section fifteen (15), township twenty two (22) range twenty eight (28) and the S. 2 of S. E. 4 of section ten (10) township twenty two (22) range twenty eight (28) situated in Finney county, state of Kansas." From the recitals in this tax deed it appears that at the tax sale in 1893, this land, for want of bidders, was sold to the county as one tract, and as above described, for the aggregate sum of $47.04; that being the whole amount of taxes, interest, and costs then due thereon. The sale together of more than one separate and distinct tract, as two or more town lots in different blocks,

or two or more tracts of land not contiguous, is void. Hill's Heirs v. Dodge, 18 Kan. 277; Mathews v. Buckingham, 22 Kan. 166; Wyer v. La Rocque, 51 Kan. 710, 33 Pac. 547; Manker v. Peck (Kan. Sup.) 81 Pac. 171. But the sale of two or more tracts, together, which are adjoining and susceptible of being used as one tract, may be void. McQuesten v, Swope, 12 Kan. 32; Cartwright v. McFadden, 24 Kan. 662; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951; Mack v. Price, 35 Kan. 144, 10 Pac. 521.

In the case of Cartwright v. McFadden, supra, Justice Valentine said: "The court below held that the tax deed is void upon its face; and this holding was based upon the ground that the deed itself shows upon its face that the property which it purported to convey is composed of several separate and distinct tracts of land, and that they were all sold together in bulk, and not separately, for the taxes severally due upon each of them. Now, it is true that the tax deed does show upon its face that all the lots which it purports to convey were sold together and in bulk; and if it also shows that these lots are separate and distinct tracts of land, not contiguous to each other, then, of course, the tax deed is void upon its face. Hall's Heirs v. Dodge, 18 Kan. 277. But does the tax deed show this? We think not. We think that it furnishes some evidence to this effect, but still that the evidence is not complete or sufficient. The property being divided into lots, and these lots not being numbered consecutively by units, we think furnishes some evidence that the lots are not contiguous; but this evidence. we think, is not conclusive or even satisfactory of the fact. The lots might very well all be in one body, notwithstanding this evidence. This kind of evidence might sometimes, along with other circumstances, furnish the foundation for a finding that the lots are not contiguous; but alone and against the statutory presumptions in favor of the regularity and validity of the tax deed, and of all the prior proceedings, it cannot sufficiently prove any such fact." The lands described in the deed under consideration lie in a compact form, and together constitute, in form and size, an ordinary quarter section. The deed has been of record more than five years, and therefore its language will be liberally construed in favor of its validity. Sanger v. Rice, 43 Kan. 580, 23 Pac. 633; Neenan v. White, 50 Kan. 639, 32 Pac. 381; Penrose v. Cooper (Kan. Sup.) 84 Pac. 115. Under this rule, we are unable to say that the description given in the tax deed embraces two tracts so separated as to make the deed void. No other objection having been made to the validity of the deed, we conclude that it is sufficient to convey the land in controversy. This disposes of the case, and it is unnecessary to consider the objections urged against the other tax deed under which the defendants claim title.

The district court decided that the plaintiff could not recover, and dismissed the action at his costs. This judgment is affirmed. All the Justices concurring.

(74 Kan. 494)

MISSOURI, K. & T. RY. CO. v. WATSON. (Supreme Court of Kansas. Nov. 10, 1906.) 1. PUBLIC LANDS-RAILROAD GRANTS-BONA FIDE PURCHASERS.

The act of Congress of July 26, 1866 (14) Stat. 289, c. 270), granting to the Union Pacific Railroad Company, Southern Branch (now the Missouri, Kansas & Texas Railway Company) a right of way 200 feet wide through what came to be known as "Osage Ceded Lands" in this state, was an absolute grant in præsenti, vesting title from the date of the passage of the act, and all persons subsequently purchasing any of such lands did so subject to, and with notice of, the railroad company's rights.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Public Lands, § 234.]

2. SAME-LOCATION OF ROAD -APPROVAL.

Under the facts of this case, the approval by the President of the United States of the definite location of the Missouri, Kansas & Texas railroad through the lands mentioned will be presumed.

3. ADVERSE POSSESSION-RAILROAD RIGHT OF WAY.

Private individuals cannot acquire title by adverse possession to any portion of the right of way named.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 14, 24, 43.]

(Syllabus by the Court.)

Error from District Court, Labette County; Thos. J. Flannelly, Judge.

Action by the Missouri, Kansas & Texas Railway Company against William Watson. Judgment for defendant, and plaintiff brings error. Reversed.

John Madden and W. W. Brown, for plaintiff in error. M. E. Williams, for defendant in error.

BURCH, J. The action in the district court was one of ejectment brought by the railway company for land claimed as a part of its right of way. Relief was denied on the ground the railway company had never obtained title while the defendant occupant held title both by chain of conveyances from the United States and by adverse possession.

The facts upon which the judgment is based are either found by the court or agreed to by the parties and require consideration in the light of certain treaties between the United States and the Osage Indians, acts of the Congress of the United States, and decisions of the federal Supreme Court. The land in controversy as now surveyed is part of an even-numbered section of what are known as the "Osage Ceded Lands" lying in the southern part of the state. By the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians a reservation was established which the Indians were entitled to occupy for their own use as long as they chose to

do so. On September 26, 1865, another treaty was made between the United States and the same Indian tribes, which was amended in 1866 and finally proclaimed on January 21, 1867. By the first article the Indians granted and sold to the United States a portion of their reservation some 50 by 30 miles in extent, including the land in controversy. The United States agreed to pay $300,000 for the granted territory, to place the purchase fund to the credit of the Indians in the treasury of the United States, to pay interest upon it at the rate of 5 per cent. per annum, and to expend the interest for the benefit of the Indians as the Secretary of the Interior might direct. The same article of the treaty contains the following provision: "Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, but no pre-emption claim or homestead settlement shall be recognized; and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the 'civilization fund' to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States." 14 Stat. 687. On April April 10, 1869, Congress adopted a resolution authorizing any bona fide settler having certain qualifications and residing upon any portion of the lands ceded to the United States by the Osage Indians by virtue of the treaty of January 21, 1867, to purchase such lands within two years from the passage of the act in quantity not exceeding 160 acres at the price of $1.25 per acre. The resolution contained the following proviso: "Provided, however, that nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties." 16 Stat. 55, Resolution No. 18. The grantors of the defendant settled upon the quarter sections which include the land in controversy in 1868, but it is agreed they purchased in the year 1870 under the treaty of 1867 and the congressional resolution of 1869. Patents were duly issued which, however, contained no exceptions of the railroad right of way.

On July 26, 1866, the Congress of the United States passed an act (14 Stat. 289, c. 270) granting lands to the state of Kansas to aid the Union Pacific Railroad Company, Southern Branch, in the construction of a railway and telegraph line from Ft. Riley, or near that military reservation, down the Neosho river to the southern boundary of the state, with a view to the extension of the line through the Indian Territory to Ft. Smith, Ark. The grant consisted of odd-numbered sections lying within certain limits on each side of the road as it should be definitely

located and provided as follows: "But in case it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid, which lands, thus indicated by the direction of the Secretary of the Interior, shall be reserved and held for the state of Kansas for the use of said company by the said secretary for the purpose of the construction and operation of said railroad, as provided by this act." Section 4 of the act reads: "And be it further enacted, that as soon as said company shall file with the Secretary of the Interior maps of its line, designating the route thereof, it shall be the duty of said secretary to withdraw from the market the lands granted by this act, in such manner as may be best calculated to effect the purposes of this act and subserve the public interest." In addition to land granted to the state of Kansas by way of aid in the construction of the proposed road a right of way was granted to the company itself, not only through the ordinary public lands, but likewise through reserved lands, as appears by the following extracts from the law: "That the right of way through the public lands be, and the same is hereby, granted to said Pacific Railroad Company, Southern Branch, its successors and assigns, for the construction of a railroad as proposed: and the right is hereby given to said corporation to take from the public lands adjacent to the line of said road. material for the construction thereof. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said road where it may pass through the public domain; also all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turntables and water stations." "That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be, and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted, subject to the approval of the President of the United States."

The entire grant was made upon the fol

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lowing conditions: "And be it further enacted, that the grant of lands hereby made is upon condition that said company, after the construction of its road, shall keep it in repair and use, and shall at all times transport troops, munitions of war, supplies, and public stores upon its road for the government of the United States, free from all costs or charge therefor to the government, when required to do so by any department thereof." "And be it further enacted, that the United States mail shall be transported on said road, and under the direction of the Post Office Department, at such price as Congress may by law provide: Provided, that until such price is fixed by law the Postmaster General shall have power to fix the compensation." The grantee accepted the terms of the act, and by a change of name duly authorized the plaintiff, the Missouri, Kansas & Texas Railway Company, became entitled to its benefits and subject to its burdens.

It is agreed that the road was constructed, and that since its completion it has been used by the plaintiff in the discharge of its duties as a common carrier engaged in state and interstate commerce. The court finds that the road was definitely located prior to 1870, and it is not disputed that, on January 8, 1868, the Secretary of the Interior transmitted to the Commissioner of the General Land Office a map showing the definite location of the plaintiff's road through the land in controversy and ordered him to instruct the local land officers to withhold, on account of the railway, lands falling to the grant within the country ceded by the Indians, and that, on July 25, 1870, the Secretary of the Interior transmitted to the Commissioner of the General Land Office a map and a certificate of the Governor of the state of Kansas showing that the road had been constructed and equipped as required by the act of Congress. No approval by the President of the United States of the route as definitely located was offered in evidence. The defendant attempts to support his right to the land by the fact that it was occupied by the original patentees before the plaintiff's road was definitely located. Before the act of April 10, 1869, the occupation of Osage Ceded Land gave no right to it whatever. Homestead and pre-emption settlements were expressly forbidden and the only method of acquisition possible under the treaty of 1867 was by purchase for cash. There were valid restrictions upon the government's power of alienation. Wood v. M., K. & T. Ry. Co., 11 Kan. 323, opinion, 346. There being no law recognizing the rightfulness of the occupation by white men of the Indian land, settlement there was no better than a trespass. The purpose of the act of 1869 was to prevent speculators from acquiring the land and to preserve it for actual settlers who would cultivate and improve it; hence settlement was made a part of the purchaser's qualification precisely like citizen

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