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is the essence of the contract, and also that to themselves, and as the result of negounder these provisions the lessees might con tiations free from imposition and fraud, they tinue the lease during its full term of 20 must have that right. But, having deliberyears without doing anything in the way of ately made a contract of the latter descripexplorations for gas or oil. These consideral tion, they have no right to call upon a court tions, however, do not make the lease void to declare that it is of the other kind merely nor unreasonable. There are no facts al because generally it might seem to be better leged in the petition which indicate that for farmer's not to incumber their lands these provisions are in any way injurious with mineral leases, giving a long time for to the interest of the lessors. Whether or not exploration, or because generally such leases a contract is unconsciunable, unreasonable, or do contemplate that forfeiture shall follow improvident, mas depend upon something a failure to explore at one." more than its mere language. The subject We see no want of mutuality in the terms inatter of the agreement, its condition, sur of the lease. Taken as a whole, it is such a roundings, and the relation of the parties contract as parties may properly make. We thereto, may become material matters for do not think the district court erred in susconsideration. The land described in the taining the demurrer, and the judgment is lease, in the absence of allegations to the affirmed. All the Justices concurring. contrary, may have been assumed by the listrict court to be, when tlie lease was ex

(74 Kan. 10) ecuted, situated remote from oil or gils pro

STATE v. FLETCHER. ilucing territory. When this lease was erecuted, the idea of valuable deposits of gas

(Supreme Court of Kansas, Nov. 10, 1906.) or oil being under the leased premises may


EVIDENCE. have been regarded as somewhat visionary.

In view of the other provisions of the proThe lessors may have been disposed to grant hibitory law, the section thereof which forbids very liberal terms to persons willing to make the giving of intoxicating liquor to minors must

be construed to have reference only to gifts the necessary expenditure to ascertain wheth

properly so called, and not to sales, and thereer such deposits existed or not. On the

fore a conviction upon an information drawn other hand, the lessees may have been willing under that section cannot be sustained by proof to undertake such explorations if induce

that the defendant sold intoxicating liquor to il

minor. inents sufficiently liberal, as to time and

[Ed. Note-For cases in point, see Cent. Dig. otherwise could be secured. The terms and

vol. 29, Intoxicating Liquors, $$ 171, 269.] conditions of such a contract, including the

(Syllabus by the Court.) time during which a lease should continue in force before the commencement of the

Appeal from District Court, Allen County; work of exploration, are proper matters

Oscar Foust, Judge. of agreement which the parties have the right

Bob Fletcher was convicted of giving liquor to fix to suit themselves. In the absence of

to a minor, and appeals. Reversed. fraud, imposition, or mistake, neither of Ewing, Gard & Gard, for appellant. C. C. which is suggested here, parties should be Coleman and Burton E. Clifford, for the left to make their own contracts, and, when State. freely and voluntarily made, should be held to the conditions thereof, even though it

MASOX, J. Bob Fletcher was convicted should turn out in the light of subsequent

upon a charge of having illegally given indevelopments that their rights were valued

toxicating liquor to a minor, and appeals. too lightly. In the case of Rose v. Lanyon, At the trial it was developed that the etc., 68 Kan. 126, 74 Pac, 625, Justice Burch transaction complained of was a sale, and used language which is quite pertinent here. the question is therefore presented whether, It reads: "Courts have no right to declare under such a charge, a conviction can be had that, whatever the parties may think, opera upon proof that the defendant sold liquor to tious for sinking a well must begin at a minor. The statute reads (Gen. St. 1901, once under an oil or gas lease. If this § 2481): "The treating or giving of any court had done so prior to the time plain intoxicating liquors to any minor by any pertiffs desired to contract they would have son other than the father, mother, or guardirebelled, without any doubt, with the utmost an of such minor, or a physician for medical indignation against the decision as an in purposes, shall be unlawful; and any person fringement of their liberty to contract with violating the provisions of this section shall reference to their land and the minerals be. be deemed guilty of a misdemeanor, and upneath its surface as they pleased. In SO on conviction thereof shall be punished theredoing. they would have been justified. If for as provided in the last preceding section plaintiff's should desire to contract for an of this act for unlawfully selling intoxicating immediate exploration, they must have that liquors.” The state relies largely upon the right; and, if they should desire to give an authority of Commonwealth v. Davis, 12 oil or gas company five years in which to Bush (Ky.) 240. That was a prosecution sink a well, upon a consideration satisfactory under a statute making it an offense to "sell,

lend or give" intoxicating liquor to a minor. ing liquor to a person in the habit of getting The evidence showed that the defendant, with intoxicated; but an indictment for selling money a part of which had been supplied would not be sustained by proof that liquor by a minor for the purpose, bought whisky, had been given to a person in the habit of some of which he later gave to the minor, getting intoxicated, nor would an indictment who drank it. The trial court took the view for giving liquor be sustained by proof of a that there was no gift, because the liquor sale. A sale and a gift, under the statute, was the joint property of the defendant and are distinct and separate offenses, and the the minor, and therefore discharged the jury proof of one will not sustain a charge for and dismissed the indictment. On appeal the other." the reviewing court reversed the judgment, Granting that a statutory prohibition holding that to carry out the purpose of the against the giving of liquor to minors might law the word "give" should be construed to under some circumstances be construed to mean “furnish” or “supply." Upon sub include a sale, or even that, standing alone, stantially the same statute and facts a con it should be given that construction; its meantrary conclusion was reached in Young v. ing in the present case must be determined by State, 58 Ala. 358. In Kentucky, as mention the context. The section already quoted in ed in the opinion referred to, the rule that full was passed as a portion of an act, a penal statutes are to be strictly construed large part of which was devoted to defining has been abrogated, whereas in this state what sales of liquor were legal and what ilit is still in force. State v. Chapman, 33 legal. If it had been the purpose of the Kan. 134, 5 Pac. 768; State v. Sutton, 53 Legislature that the section in question Kan. 318, 36 Pac. 716. These considerations should apply to sales made to minors, it is impair the authority of the Kentucky deci reasonable to suppose that the word "selling" sion; but, even if it is given full force, it does would have been coupled with "giving.” The not necessarily control the present case. section immediately preceding this provides

The question here is whether the word that whenever a relative of any person shall "giving," as used in the statute quoted, was notify a druggist that such person uses inintended to include the furnishing of liquor toxicating liquors as a beverage, "and shall for compensation. In Parkinson v. State, 14 forbid said druggist from selling, bartering Md. 184, 74 Am. Dec. 522, it was held (the or giving to such person any intoxicating Chief Justice dissenting) that a title refer liquor, it shall be unlawful for any such I'lng in terms only to the sale of liquor to druggist, after such notice, to let such percertain classes was broad enough to cover a son have any intoxicating liquors upon any prohibition against its being given to them. terms or conditions whatever." The occurIt was distinctly shown in the opinion, how rence of such explicit language so near to it (ever, that the words "give” and “sell” were suggests the unlikelihood that the one not regarded as covering the same ground; word "giving" was intended to have the the writer saying: "In 'their ordinary and same sweeping effect as the entire phrase familiar signification,' 'in their accepted and italicised. The use of the word "treating" known sense,' the words 'sell' and 'give' have in the same connection also indicates that not the same meaning, but are commonly used the mind of the draftsman of the bill to express different modes of transferring

was directed toward the idea expressed the right of property from one person to by "giving" in its usual and specific sense. another; a sale meaning a transfer for a These considerations convince us that the valuable consideration, and a gift signifying Legislature purposely omitted to include a gratuitous transfer without any equiva sales to minors among the acts denounced by lent." This language is quoted with approval this section. The reason for such course in Holley V. State, 14 Tex. App. 505; the was obvious. It was not that selling liquors court adding: “No subtlety of reasoning or to immature persons was regarded as less ingenuity of argument can, in common ac pernicious than giving it to them outright, ceptation, make the two words mean the but because it was conceived that the whole same thing." In Humpeler v. People, 92 Ill. subject of illegal sales had been covered by 400, a conviction under a statute making it other provisions of the law. True, these othan offense to "sell or give" liquor to a minor, er provisions as they then existed (when sec. or to a person in the habit of getting in tion 2481, Gen. St. 1901, was enacted, in toxicated, was set aside for reasons thus 1885) contained no prohibition against the stated: “While there is abundance of proof sale of liquor to minors; but such a prohibito sustain the finding as to the sale of in tion was added to one of them by amendtoxicating liquor, there is no proof whatever ment in 1887 (see Gen. St. 1901, § 2489), an in the record that the defendant gave in addition which points to a legislative intertoxicating liquor, as charged in the third pretation that the enactment of 1885 did not and sixth counts of the indictment. The

cover such sales. verdict and judgment, therefore, as to these It follows, from the view stated, that the counts, were erroneous. It was a violation judgment must be reversed. All the Jusof the statute to either sell or give intoxicat tices concurring.

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(74 Kan. 896)

after the suit was brought, and, upon learnSTATE v. FOWLER. SAME V. McCARLEY. ing of the gift and action, she prosecuted the (Supreme Court of Kansas. Nov. 10, 1906.) proceeding to a conclusion. The petition Appeals from District Court, Allen County ;

was in the ordinary form for foreclosure,

alleging the execution of the note, the sale Oscar Foust, Judge.

and indorsement of the same from Miller to Howard Fowler 'and Cliff McCarley were convicted of giving liquor to a minor, and ap

Ford before maturity, and a copy of it with

the assignment was set forth. Default was peal. Reversed.

made by the McCrays on the note, but J. 0. Chris Ritter, for appellants. C. C. Coleman Bare and wife, who had been named as and Burton E. Clifford, for the State.

defendants, answered with a general denial;

and, further, that the plaintiff was not the PER CURIAM. In each of these cases the

real party in interest; that the cause of acdefendant was charged by information with

tion was barred by the statute of limitations, giving intoxicating liquor to a minor. There

and that they had acquired the land by a tax was no evidence to sustain the charge of giv

deed executed by the county of Clark. Ford ing intoxicating liquor to a minor, but there

replied, denying generally the allegations of was evidence, over the objection and excep

the answer, and also stating that the tax tion of the defendant, of sales by the defend

deed to Bare was void because of several ant of intoxicating liquor to the minor named

defects in the tax proceedings. On the isin the information, and the defendant in

sues so formed, the jury found in favor of each case was found guilty, his motion for

the plaintiff, and the mortgage was adjudged new trial was overruled, and he was sen

to be a valid lien on the land, the defendtenced.

ant's tax deed was held to be illegal, and set Each of these cases is reversed on the au

aside, but the taxes paid by the Bares, with thority of State of Kansas v. Bob Fletcher

the accumulated interest, was declared to be ( just decided) 87 Pac. 729.

a lien upon the land. The Bares complain

and insist that the evidence was insufficient (74 Kan. 593)

to establish a cause of action against them, BARE et al. v. FORD.

and that the demurrer to the evidence should (Supreme Court of Kansas. Nov. 10, 1906.

have been sustained. Rehearing Denied Dec. 8, 1906.)

The claim of insufficiency is based mainly LOST INSTRUMENTS-PLEADING Loss-NECES on the fact that the plaintiff pleaded that SITY.

she was the owner and holder of a proniisIn an action to recover on a promissory

sory note, and only proved the assignment note, a copy of which is set forth in the petition, proof of loss of the note and of its execution of a note previously lost. It is argued that and contents may be received, although no men an averment of the execution and existence tion of the loss is made in the petition.

of a note is not sustained by proof of a lost [Ed. Note.For cases in point, see Cent. Dig.

note. The execution of the note, which was vol. 33, Lost Instruments, $$ 47, 50.]

set forth in the petition, was admitted by the (Syllabus by the Court.)

defendants. The mortgage was assigned and Error from District Court, Clark County ; delivered to the assignee, and it contained E. H. Madison, Judge.

a copy of the note which corresponded with Action by J. C. Ford against J. O. Bare and the copy set out in the petition, and the Eva Bare. Judgment for plaintiff, and de statute provides that “the assignment of any tendants bring error. Affirmed.

mortgage as herein provided shall carry

with it the debt secured." H. J. Bone and D. R. Hite, for plaintiffs

Gen. St. 1901, $

+238. There was abundant testimony that in error. Francis C. Price, for defendant in error.

Ford was the owner of the note, but the

question remains whether there could be a JOHNSTON, C. J. This was an action to recovery in the absence of an averment foreclose a mortgage. On December 1, 1887, that the note had been lost. The loss of the C. J. McCray and wife gave a promissory note is no part of the cause of action, and note for $800 to Samuel G. Miller, due five a statement of the loss is therefore not an years after date, and to secure its payment essential allegation. The reason that loss executed a mortgage on a quarter section of or destruction of a note or other instrument land in Clark county. On June 30, 1902, C.

is alleged in certain cases is to excuse the J. Carson purchased the note and mortgage failure to give a copy of it in the pleadings for his sister, J. C. Ford, as a gift, taking or the failure to make profert of the instrua written assignment of each directly to her. ment where it is required. In Sargeant v. The mortgage was delivered with the assign Railroad Co., 32 Ohio St. 449, the Supreme ment, but there was no manual delivery of Court of Ohio held that "an action may be the note, as it appears to have been lost. sustained on a destroyed promissory note, Carson placed the mortgage and assignments and where a copy of the note is given with in the hands of Ford's attorney for fore or made part of the petition the destruction closure, but she was not aware that she had of the note need not be averred in the become the owner of the instruments until petition.” The same view is taken by the

Supreme Court of Indiana in Cunningham ing the rights of an innocent holder, nor v. Hoff, 118 Ind. 263, 20 N. E. 756, in which seeking to cut off the equities of the maker. it was held that “where a copy of a note Upon a like question in Bank v. Schlegel, sued on is filed with the complaint as an 66 Kan. 509, 72 Pac. 210, Justice Mason reexhibit no allegations in regard to the loss marked that was plaintiff did not assert any or destruction of the note are necessary to

rights as an innocent purchaser, and did make the complaint good." Iouy v. Gamel, not claim to have purchased the note be26 Tex. Cir. Ap. 123, 62 S. W. 76, was an fore maturity, the allegation of its indorseaction to recover on notes which had been ment was immaterial, and it was not neceslost, and it was contended that proof of the sary for plaintiff to prove it in order to es

tablish his right to recovery." When the loss and secondary evidence of execution and contents could not be received because alle

plaintiff first rested her case the defendants gations of loss were not contained in the pe

demurred. and indicated that they would

stand on their deinurrer, the court remarkedl tition. It was held that "it was not necessary in this character of suit to allege the

to the jury that it would be his duty to innotes as having been lost. If it was an

struct them to find for the plaintiff. He

suggested the appointment of a foreman, and equitable suit to establish the existence of lost notes merely, such averments would

requested the clerk to give him a blank ver

dict, when plaintiff's attorney asked and probably have been essential. But this was

obtained leave to offer evidence of defects to recover judgments upon the notes, and a

in defendant's tax deed, the execution of rule of evidence only was involved.


which had been admitted. There is a comupon proof of the loss, Secondary evidence,

plaint that this was in effect an instruction concerning their execution and contents, was

to the jury to find against the defendants, adnissible." The same question was before

and that it was never withdrawn from their the Supreme Court of Vermont in the case

consideration. of Viles & Atkins v. Moulton, 11 Vt. 170,

The court indicated that as

the case stood it would be his duty to inwhere it was said: “This was an action on

struct them to find for the plaintiff, and some note. The note was not produced in evidence, but the plaintiff endeavored to prove

steps were taken preparatory to the giv

ing of such instructions. Before it was its loss and contents. The first objection

given, however, the case was opened up, testiwhich was raised on the part of the defend

mony submitted on the part of both plainant was that there was no count in the dec

tiff and defendants, and the case was sublaration upon a lost note. We think that

mitted at length to the jury under full inthere is no necessity for such a count in any

structions by the court. The jury could not case. Whenever it becomes necessary to

have misunderstood the status of the case, make a profert of an instrument, if it is

nor been misled by the remark of the lost, there must be an averment of the loss. judge. Testimony offered for the purpose But, in a declaration on a note, no profert of showing that the mortgage debt was satisis made. It is not usual, and not required fied and the mortgage discharged by the exein the courts of the United States, to de

cution of a deed from the mortgagor was clare specially on a lost note as lost." See, excluded by the court. No error was comalso, Renner v. Bank of Columbia, 9 Wheat.

mitted in its exclusion. Payment, satis(U. S.) 581, 6 L. Ed. 166; Dormady v. State faction, or settlement were not pleaded, and Bank of Illinois, 3 Ill. 236; Adams r. Baker, could not be proven under a general denial. 16 R. I, 1, 11 Atl. 168, 27 Am. St. Rep. 721; Stevens v. Thompson, 5 Kan. 305; Railroad Adams v. McCauley, 4 Rob. (La.) 184; 13 Co. v. Grove, 39 Kan. 731, 18 Pac. 958; NaEnc. of Pl. & Pr. 361.

tional Bank v. Quinton, 57 Kan. 750, 43 To the claim that it was unfair for the Pac. 20. Neither was there any abuse of plaintiff to set out a copy of the note as discretion in the ruling refusing the appliif she had possession of the original, and then cation of defendants to amend the answer at the trial present the copy of it with and introduce the new issue of payment or secondary evidence of its contents, it may satisfaction near the end of the trial. The be said that the execution of the instrument statute of limitations invoked by the deas it was copied in the mortgage was ad fendants was not available to them, as they mitted. Then, again, the defendants could claimed under a tax deed, and not under not have been misled or prejudiced on that any title derived from the mortgagor. Ordaccount, as long prior to the trial deposi way V. Cowles, 4.5 Kan. 447, 25 Pac. 862: tions had been taken by both plaintiff and Trust Co. V. Parker, 65 Kan. 819, 70 Pac. defendants with respect to the loss of the 892. There was sufficient testimony to show note, and the question was tried out sub that the tax deed of the defendants was destantially as if it had been pleaded.

fective and void, and, while some other obNor did the defendant suffer prejudice by jections have been made to the proceedings the averment that the note had been indorsed and judgment, we find nothing substantial in and sold before maturity, where the only them, and no ground for reversal. proof was of a sale after maturity and with Judgment affirmed. All the Justices conout indorsement. The plaintiff was not claim curring.

(74 Kan 574)

that fires should not be set out and comSPRAGUE et al.

municated by its engines. And, if you should

find from the evidence that the defendant (Supreme Court of Kansas. Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.)

did not do so, but negligently permitted com

bustible material and structures to be and RAILROADS – FIRES SET BY LOCOMOTIVES RIGHT OF WAY.

remain on its grounds in close proximity to In an action against a railway company for its tracks, owned and held by it for use in damages by fire, alleged to have been caused by

the operation of its road, and that the same a defective engine and negligence of the company in maintaining upon, and adjacent to, its

took fire from said engine No. 2319 of deright of way dry and combustible wooden sheds fendant, and that such fire spread to the and wooden buildings with wooden roofs which

plaintiff's property and caused the fire in took fire from the engine and communicated to and destroyed plaintiff's property, an instruc

question, which plaintiff claims destroyed his tion is erroneous which charges that it was the

property, and if you should also believe that duty of defendant to keep its grounds and right the plaintiff was not guilty of contributory of way free and clear from combustible ma

negligence, then your verdict should be for terials and structures.

the plaintiff in such sum as the evidence [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, $$ 1673-1676, 1754.]

shows he was damaged by reason of such Graves, J., dissenting.

fire." In another instruction the jury were

told that it was the duty of the railway (Syllabus by the Court.)

company to exercise "ordinary and reasonable Error from District Court. Lyon County;

care to keep its grounds adjacent to its F. A. Meckel, Judge.

tracks, owned and held by it for use in the Action by E. F. Sprague and others against

operation of its road, free and clear from the Atchison, Topeka & Santa Fé Railway combustible material and structures.” It is Cumpany. Judgment for plaintiffs, and de

seriously urged that this same instruction, in fendant brings error. Reversed.

substance, was approved in Railway Co. v. W. R. Smith, 0. J. Wood, and A. A. Scott Ludlum, 63 Kan. 719, 66 Pac. 1015. The (A. A. Hurd, of counsel), for plaintiff in er language of the instruction in that case was ror. W. A. Randolph, John G. Egan, and as follows: “'You are further instructed, Buck & Spencer, for defendants in error. that it was the duty of the defendant to

keep its right of way free from dry grass, PORTER, J. E. F. Sprague brought this weeds, and other combustible material, in action to recover dainages for the destruction order that fires may not be set out on the of a planing mill by fire, alleged to have right of way by passing engines and from been caused by sparks from a defective en- | there communicated to adjoining farms.'" gine. It was claimed that the sparks ignited The instruction was approved and was proper wooden coal sheds and other structures, own in that case. The claim was that the railed or controlled by the railway company and way company permitted "dry grass, weeds, located on its right of way, and from which leaves, and vegetation” to remain upon the the fire spread to the planing mill. A former right of way, and that, by reason thereof, judgment and verdict in favor of the railway the fire was communicated to the property of company was reversed, and a new trial or- / plaintiff. The negligence relied upon and dered on account of error in the instruc proved here was not in permitting weeds, tions. Sprague v. Railway Co., 70 Kan. 359, dry grass, or rubbish to accumulate. upon 78 Pac. 828. From a judgment and verdict in the right of way-something which ordinary favor of plaintiff below, the railway com- | prudence would suggest-which should be pany now brings error.

cleared off, and which by ordinary diligence The petition set up the following, in ad could be removed, but the claim relied upon, dition to other acts of negligence: “Said and the evidence showed, that certain wooddefendant railway company, contrary to its en buildings were permitted to stand upon duty in that regard, by itself and its agents the right of way; that these took fire and the and servants, carelessly and negligently failed fire communicated therefrom to plaintiff's to have and keep its grounds and right of property. There was no question in the way in said city free and clear from dry and case of negligence in permitting rubbish to accombustible materials, and carelessly and neg cumulate. The things permitted to be upon ligently permitted dry and combustible wood the right of way were wooden buildings and en sheds and wooden buildings, with wood structures. In effect the instructions stated en roofs, to be and remain upon its said the law to be that it is negligence per se for grounds and right of way, close to its rail a railway company to permit combustible road tracks, and where they were liable to material and structures to be upon or in and would be ignited by sparks and fire close proximity to its right of way. It is a from its engines.” The court instructed the matter of common observation that all woodjury as follows: "I instruct you that it way en .buildings, without reference to their age the duty of the defendant railway company or condition, are combustible. It cannot be to keep its grounds, in close proximity to its true that a railway company is required to tracks owned and held by it for use, in the construct its depots, warehouses, coal sheds operation of its road, free and clear from and other structures of fire-proof material, or combustible material and structures in order that it is guilty of negligence if it fails in

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