testify for or against each other, and cited authorities. The question was argued orally by both parties, and the court considered it as properly involved.

We have gone over the record again, and think that the second conclusion of law-that Lanning was estopped, by accepting a legacy, from raising the question of insufficiency of the attestation and probate of the will-is sustained by the evidence. The law would not permit a legatee, with the knowledge possessed by Lanning of the circumstances surrounding the attestation of the will, to accept a legacy under it and afterwards attack its sufficiency, after tendering back what he had received.

The petition for rehearing is denied.

are that Smyser was not a surety at all but that he agreed to pay for the material for his house himself. The law will not imply a relation between parties contrary to their agreement covering the subject. First Nat. Bank of Concordia v. McIntosh & Peters (opinion filc 1 Jan., 1906) 84 Pac 535. The case is quite like that of Carney Bros. v. Cook, 80 Iowa, 747, 45 N. W. 919, and bears no resemblance to Fisher v. Stockebrand, 26 Kan. 565. Smyser cannot be heard to say that a notice was not given which he expressly waived, and if he desired a general verdict he should have asked for it before the jury to which he submitted his case was discharged.

The judgment of the district court is affirmed.

(73 Kan. 773)

SMYSER et al. v. FAIR. (Supreme Court of Kansas. March 10, 1906.) 1. CONTRACTS-CONSTRUCTION.

The law will not imply a relation between parties contrary to their agreement covering the subject.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, § 730.]

2. NOTICE-WAIVER-EFFECT.

A party cannot be heard to say that a notice which he expressly waived was not given. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Notice, § 15.]

3. TRIAL-GENERAL VERDICT.

Where a party desires a general verdict as well as special findings, he must ask for it before the jury to which he submitted his case is discharged.

Error from District Court, Reno County; W. H. Lewis, Judge.

Action by D. J. Fair against W. C. Smyser and another. From a judgment in favor of plaintiff, defendants bring error. Affirmed.

Geo. A. Vandeveer and F. L. Martin, for plaintiffs in error. Prigg & Williams, for defendant in error.

PER CURIAM. In addition to the advisory findings of the jury the court made findings of its own which bring to the support of the judgment all the facts and all the inferences of fact derivable from the evidence most favorable to the plaintiff, even although opposed by strong evidence to the contrary. The findings of the jury themselves entirely preclude the notion that the attempted return of the windows can be tacked to the tender of the $250 so as to make a legal tender of payment of the balance due the plaintiff. The transaction amounted to no more than a belated attempt to return damaged property to a vendor on the ground that it did not comply with the contract of sale. The record contains ample evidence to support Fair's position that he was under no legal duty to receive and give credit for the windows when Smith brought them back, and Smyser is clearly chargeable with them if he is the principal debtor. The evidence and findings

(73 Kan. 295) MISSOURI PAC. RY. CO. v. PERU-VAN ZANDT IMPLEMENT CO. (Supreme Court of Kansas. March 10, 1906.) 1. CARRIERS-DELAY IN SHIPMENT-ACTION BY CONSIGNEE.

When property has been consigned by the general owner to an agent, who has a special interest therein as factor, or commission agent, and the goods so consigned are negligently delayed in transit and converted by the carrier, so that sales thereof previously made by the consignee are canceled and lost, such consignee may maintain an action in its own name against the carrier for the recovery of damages on account of such lost commission, and also for the value of the property converted.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 266-269.]

2. SAME-PAYMENT OF FREIGHT-CONVERSION. When a common carrier negligently delays the delivery of goods, so that the damages occasioned by such delay exceed the amount of freight due for the transportation of such goods, the consignee may rightfully demand the delivery of the goods without payment of freight, and a refusal by the carrier to surrender possession upon such demand is wrongful and amounts to a conversion.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, $$ 435, 858, 876.]

3. SAME-DELAY IN DELIVERY-NOTICE OF EF

FECT.

Common carriers are supposed to take notice of such natural events as are familiar to ordinary people. They will be held to a knowledge of seed time and harvest and the general customs relating thereto in the territory where they do business. A common carrier, that on June 12, 1903, received at the factory in Port Huron, Mich., threshing machines, consigned to an implement dealer of Hutchinson, Kan., to be delivered at Larned, Kan., with stopover, to partly unload at Seward, Kan., will be deemed to have notice that such machines are for immediate sale, if not already sold, and that a delay of delivery until the entire threshing season has passed will defeat the purpose of shipment. 4. SAME-MEASURE OF DAMAGES.

An action was brought against a common carrier by the consignee of threshing machines. On the trial it appeared that the plaintiff had sold the machines as agent for the consignor, and was entitled to receive out of the proceeds of the sale a commission of 40 per cent. of the price for which the sale was made. It also appeared that the carrier negligently delayed the delivery of the goods until the sales were for that reason canceled, and the commis

Kan.)

sion thereby lost. It further appeared that the carrier converted the machinery to its own use. An action was brought to recover for the loss of commission and the, value of the property converted. Held, that the price for which the sale had been made was the proper measure of damages in such action.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 451.]

(Syllabus by the Court.)

Error from District Court, Reno County; P. J. Galle, Judge.

Action by the Peru-Van Zandt Implement Company against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

The Port Huron Engine & Thresher Company, of Port Huron, Mich., manufactures threshing machines and sells them throughout the country through local agents. The plaintiff, defendant in error, is its agent at Hutchinson, Kan. By the contract of agency, it is the duty of the Peru-Van Zandt Implement Company, to advertise, introduce, and sell the machines to those desiring to purchase, and, when a sale is made, an order is taken from the purchaser, in writing, directing the Port Huron Company to ship the machinery desired, stating price, manner of payment, and other particulars constituting the conditions of sale, which order is signed by the purchaser and delivered to the local agent. This order is forwarded to the Port Huron Company by the agent making the sale. Upon this order the machinery is shipped by the designated route, consigned to the local agent. It is the duty of the agent to receive the machinery and hold possession thereof until payment is made or secured as stipulated in the order of the buyer. In completing the sale the agent takes in payment cash, notes, mortgages, or other security as directed, but delivers the machinery only after the sale has been approved by the Port Huron Company. Until such approval and delivery, the title to the machinery does not pass from the seller. The Peru-Van Zandt Company receives for its services in making such sales a commission of 40 per cent of the selling price. If any machinery is taken back, or returned, the local agent takes charge thereof and may resell it, and receive a commission therefor. The local agent pays all expenses incident to the sales made. buyer pays the freight, in addition to the price stipulated for the machinery. Where payment is made by the purchaser with notes, collection is made by the agents, and out of the proceeds, the commission is deducted. The commission always comes out of the proceeds of each sale when collected. The Peru-Van Zandt Company, under this employment, sold two machines for the aggregate sum of $920, and took from the purchasers written orders therefor, which were duly forwarded to the Port Huron Company. Upon receipt of the orders, the machines were shipped over the road of the plaintiff in error, consigned to the Peru-Van Zandt Implement

The

409

Company, at Larned, Kan., with stopover to partly unload at Seward, Kan., being the points where the purchasers lived. The bill of lading contained nothing to indicate the relation existing between the consignor, the Port Huron Company, and the consignee, whether that of vendor and vendee, or principal and agent. The machines were shipped June 12, 1903, and in ordinary course would have arrived at destination within 10 days, but on account of negligent delays they did not arrive until some time in the month of August, long after the threshing season had closed and the sale contracts had, for that reason, been canceled. By the contract of shipment, the freight was payable before delivery of machinery to consignee. The consignee declined to pay the freight, claiming that the damages suffered on account of delay far exceeded the amount of the freight bill. The carrier refused to deliver the goods until the freight was paid. Thereupon the defendant in error demanded that the machinery be delivered to it without payment of freight, and, upon refusal, commenced this suit. The demand was made in the name of the Port Huron Company, by the Peru-Van Zandt Company as agent. The petition alleges that the plaintiff is the agent and factor of the Port Huron Company, and avers the facts constituting their relationship, substantially as hereinbefore set forth. In the first cause of action the plaintiff asks judgment for the amount of commission lost by it, and in the second cause of action it demanded judgment for the value of the machines. The carrier retained, and still keeps, possession of the machines. The plaintiff recovered judgment for the price for which the machines were sold. Plaintiff in error brings the case here for review.

Prigg & Williams, J. H. Richards, and C. E. Benton, for plaintiff in error. Geo. A. Vandeveer and F. L. Martin, for defendant in

error.

GRAVES, J. (after stating the facts). Many assignments of error have been presented, but they are substantially covered by three: (1) It is insisted that the plaintiff has no interest in the machinery in controversy, and, therefore, cannot maintain an action for its conversion; (2) that the proper measure of damages in case of a recovery is the difference between the market value of the machinery at the time and place of delivery, and the market value thereof when it in fact arrived at such place; (3) that damages for loss of commission cannot be recovered, because a sale of the property was not within the contemplation of the parties when shipment was made.

Concerning the first proposition, there is considerable confusion among the authorities as to whether the consignee or consignor is the proper party plaintiff in an action against a carrier, but the rule that a suit for the conversion of goods must be brought by the owner,

or one having a beneficial interest in the property converted, seems to be fairly well established. Hutchinson on Carriers, §§ 731-734; 6 Cyc. 510; Woods' Brown on Carriers, § 599. The consignee is always presumed to possess the necessary ownership, until the contrary is shown. Ray on Carriers of Freight, p. 1006; Griffiths v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Smith v. Lewis, 3 B. Mon. (Ky.) 229; Arbuckle v. Thompson, 37 Pa. S. 170; Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N. E. 253. The ownership need not be extensive. An agent, factor, broker, bailee or other person having rights in the property to be protected, may maintain an action, and recover both for himself and the general owner. Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Harrington v. King, 121 Mass. 269; Finn v. Railroad, 112 Mass. 524, 17 Am. Rep. 128; Green v. Clarke, 12 N. Y. 343; Railroad v. Mower, 76 Me. 251.

We think the plaintiff in this case had sufficient interest in the property to enable it to maintain this action. In Railroad v. Mower, supra, a case very similar to this, the court said: "Ordinarily, when a plaintiff sustains his action, it is presumed that the whole amount of damages recovered will belong to him. In fact, the injury to him or to his property is the measure of the damages. But, while this is the general rule, there are exceptions, not to the extent or measure of damages, but to the interest the plaintiff may have in them. It is true that an action cannot be maintained unless the plaintiff has an interest in the subject-matter of the suit, but he may do so when he is not interested to the full extent of the damages to be recovered. Such are the familiar cases of injury to property in which there is a general and special owner, as bailor and bailee, consignor and consignee, principal and factor. In such cases the action may not be brought in the names of the two jointly, but may in the name of either. In the action now in question the subject-matter was mowing machines, and parts of mowing machines. The damage claimed rests upon a neglect of the carrier by which the property was improperly delayed in its transit. The facts show that the title to the property was in the mower company; that it had consigned and forwarded the machines to Dunham by virtue of a contract under which Dunham was to sell them for a specified commission and account to the company for them at a specified price. Dunham was also to pay the freight. This contract, while it did not change the title in the machines and pieces, gave Dunham such a special property in them as to enable him to maintain the action in his own name, and the consignment and forwarding the property, thus setting it apart and putting it into the hands of the carrier for his benefit, gave him a constructive possession sufficient for that purpose; and as the injury was the result of a single wrongful act to the whole property the damage could not be ap

portioned but must all be recovered in that one action, the judgment in which would be conclusive against any suit by the general owner. Hence, Dunham, in his suit, is entitled to recover, not only his own damages, but such as have accrued to the mower company as general owners. The measure of damages as held by the court in that case can be applicable upon no other theory. If then Dunham should receive the whole damage recoverable in his suit he would be entitled to retain his own share, and the balance he would hold as trustee for the mower company." In the case of Express Co. v. Armstead, 50 Ala. 352, it is said: "The consignee of goods has a right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to deliver to him. Generally the property vests in him by the mere delivery to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto, if he have the right of immediate possession, this does not necessarily divest the right of the consignee to sue, notwithstanding he has never had the actual possession."

A judgment in favor of the plaintiff can work no harm, as it is a bar to an action for the same injury by the Port Huron Company. White v. Bascome, 28 Vt. 268; Green v. Clarke, supra; Harker v. Dement, 9 Gill (Md.) 7, 52 Am. Dec. 670; Little v. Fossett, 34 Me. 545, 56 Am. Dec. 671. The plaintiff holds in trust for the Port Huron Company, whatever remains of the amount recovered, after payment of its commission. Chamberlain v. West, Finn v. Railroad, White v. Bascome, and Little v. Fossett, supra. A consignee has a right to withhold freight bill when its damages exceed that amount, and in such a case the refusal of the carrier to deliver the goods until the freight is paid amounts to a conversion. 5 A. & Eng. Enc. of Law (2d Ed.) 232; Miami Powder Co. v. Port Royal, etc., (S. C.) 16 S. E. 339, 21 L. R. A. 123; 6 Cyc. 497; Railroad v. Goodholm, 61 Kan. 758, 60 Pac. 1066. The measure of damages is compensation for the injury sustained. An amount which will place the injured party in the same condition he would have occupied, if no loss had occurred, will satisfy this requirement. If in this case the machinery had been delivered according to contract, the price for which it had been sold would have been realized. Out of this amount the commission due the plaintiff would have been deducted. The freight would have been paid by the purchasers of the machinery. The selling price at place of delivery seems, therefore, to be the true measure of damages. We think the amount recovered in the district court fairly compensates all parties for the losses sustained. Out of this amount the plaintiff will retain a sum equal to the commission lost, and must account to the Port Huron Company for the remainder.

Finally, it is insisted, that a sale of the

machinery was not within the contemplation of the parties at the time of shipment, and therefore commission is not a proper element of damages. A railroad company must be held to know facts familiar to ordinary people. It is fair to assume that a carrier of threshing machines knows what they are used for and that the only purpose implement dealers have for shipping such property into the heart of a great wheat country is to sell it. When a shipment of threshing machines is made in June of any year, the inference follows that, if they are not already sold, an immediate sale is intended. We think, therefore, that the loss of commission is not so remote as to be excluded as an element of damage in this case. The general rule that damages caused by the loss of a sale, not within the contemplation of the parties, cannot be received, has no application to the facts here shown.

No error appearing, the judgment of the district court is affirmed. All the Justices concurring.

(73 Kan. 414)

BARNETT v. SCHAD, Sheriff. (Supreme Court of Kansas. April 7, 1906.) ACTION-COMMENCEMENT INJUNCTION.

Where the statutes authorize the clerk of a district court to do a certain act and authorize the judge of the same court to do another act and the authority of each to act is dependent upon the previous action of the other, either may act first and the two acts will be regarded in law as done at the same time, provided the act of the other follows within such reasonable time as, under the particular circumstances of the case, the difference in time may be regarded as inconsiderable. (Syllabus by the Court.)

Error from District Court, County; Thos. C. Wilson, Judge.

Sedgwick

Action by Alice E. Barnett against Henry Schad, sheriff of Sedgwick county, Kan. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

This action was brought by plaintiff in error to enjoin the defendant as sheriff of Sedgwick county from selling land, which she alleged was her property, on an execution issued against another person. At the commencement of the action a temporary injunction was allowed by the judge of the district court. Afterward the court, on motion of the defendant, issued an order dissolving such temporary injunction, and the plaintiff brings the case here for review upon such order of dissolution.

Holmes & Yankey, for plaintiff in error. I. P. Campbell & Son, for defendant in error.

SMITH, J. (after stating the facts). Six grounds were set forth in the motion to dissolve the temporary injunction; the first, second, third, and sixth of which relate to the failure to issue a formal order, addressed to the defendant, and under the

seal of the court. The temporary order was allowed at the time of commencing the action, and "Injunction allowed" was indorsed on the summons which was issued and served. Section 4690, Gen. St. 1901. But, it is urged in defendant's brief, the words "Injunction allowed" were not indorsed by the clerk, but were written on the summons by plaintiff's attorney. In the absence of any evidence on the subject, it must be presumed the indorsement was made by the clerk. A forgery will not be presumed. It follows that these grounds for dissolution should have been overruled.

The fourth and fifth grounds of the motion were really one, and it was that the verified petition was not filed with the clerk before it was presented to the judge for the allowance of the order. The principal contro

versy on the hearing seems to have been whether the order was made by the judge immediately before the filing of the petition or immediately thereafter. Much evidence pro and con was introduced and we assume from the ruling of the court that it found this issue in favor of the defendant. It is not within our province to weigh this evidence, and we disregard it as immaterial, except so far only as there is no conflict. The uncontroverted evidence shows that the plaintiff, with her attorney, appeared in the clerk's office about the time the court opened in the adjoining room of the courthouse, and the clerk being absent, the attorney presented the petition to the deputy clerk and requested him to swear the plaintiff to the same, which he did, she subscribed her name to the oath, and he affixed his jurate and seal. The attorney either did or did not request the deputy to file the paper, but immediately took the same to the judge and requested him to allow the order, which was done, and immediately thereafter the attorney returned the same to the deputy clerk when the papers were marked "Filed," including a precipe for summons. An injunction bond was filed, security for costs given, and summons issued and indorsed as before stated. The statute (section 4686, Gen. St. 1901) provides: "The injunction may be granted at the time of commencing the action. * Section 4487 provides: "A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon." If the petition is used as the evidence upon which the injunction order is obtained, the filing thereof and the order thereon cannot well be made at the same instant of time. Neither is it requisite.

*

It is urged that a judge has no jurisdiction to make any order except in an action actually pending and this may be admitted as the general rule. Under the facts of this case, however, the concurrence of the granting of the order and of the commencement of the action being practically simultaneous

will be regarded as actually simultaneous. Since the granting of the order is entirely ineffective until the order is issued and served or until a summons with the indorsement "Injunction allowed" is issued and served the rights of a defendant cannot be affected even if the allowance of the order in fact precedes the filing of the petition by a moment's time. Further, it may be said, the law necessitates the granting of the injunction before the commencement of the action. Procuring the issuance of a summons is as essential to the commencing of an action as is the filing of a petition, and the indorsement "Injunction allowed" should, if desired, be made upon the summons at the time it is issued. If this were done before the judge or court had, in fact, granted the injunction, another objection, with equal force, might be based thereon. While the act of the judge and the act of the clerk must, of necessity be separated by some inconsiderable interval of time, the law regards both acts as done at the same time, regardless of which precedes the other.

The order of the district court dissolving the temporary injunction is reversed, and the case is remanded. All the Justices concurring.

(73 Kan. 375)

KANSAS CITY SOUTHERN RY. CO. v. FIELDS & SLAUGHTER CO. (Supreme Court of Kansas. April 7, 1906.) APPEAL-REVIEW-NEW TRIAL.

This court will not reverse an order of the trial court granting a new trial, unless the record shows the order was clearly and manifestly in violation of some principle of law.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3860-3876.] (Syllabus by the Court.)

Error from District Court, Crawford County; W. L. Simons, Judge.

Action by the Fields & Slaughter Company against Forrester Bros. Judgment for plaintiff, and garnishee summons issued against the Kansas City Southern Railway Company. Verdict for garnishee was set aside and a new trial ordered, and the garnishee brings error. Affirmed.

Cyrus Crane, W. J. Watson, and S. W. Moore, for plaintiff in error. Paul F. Coste and J. M. Wayde, for defendant in

error.

GREENE, J. The Fields & Slaughter Company obtained a judgment against Forrester Bros. to satisfy which they garnished the Kansas City Southern Railway Company. It answered that it was not indebted. Upon this answer the Fields & Slaughter Company took issue. The jury returned a verdict for the garnishee. Upon application of the plaintiff the verdict was set aside and a new trial ordered. The garnishee prosecutes error to reverse this order.

There were no pleadings, consequently the contentions of the parties can only be ascertained from the statements made by counsel, and the questions which appear to have been tried. From these it appears that the Fields & Slaughter Company claimed that Forrester Bros. were engaged in buying and shipping corn and oats; that about September 27, 1901, they entered into a contract with certain railroads running between Omaha and Council Bluffs and other common northern points to Kansas City, called the northern connecting lines, and with the Kansas City Southern Railway Company, for the transportation of corn and oats from Council Bluffs and other common points on these roads to Kansas City and over the Kansas City Southern to Shreveport, La., and other common points in the south, at a rate of 161⁄2 cents per hundred weight; that the Kansas City Southern agreed to accept as its proportion of this rate 8 cents per hundred; and agreed to ship the corn over its line from Kansas City at the rate of 8 cents per hundred; that Forrester Bros. commenced to ship the corn about the 1st of October, 1901, and continued shipping until February, 1902; that the Kansas City Southern charged 8 cents per hundred until October 31st, after that it raised the rate to 10 cents, and subsequently to 14 cents; that Forrester Bros. paid this excess amounting to about $10,000. Therefore it was claimed that the Kansas City Southern was indebted to Forrester Bros. for this excess. It was this alleged indebtedness of the Kansas City Southern to Forrester Bros. that the Fields & Slaughter Company were attempting to apply upon their judgment against Forrester Bros.

The Kansas City Southern denied that it had ever made a contract with Forrester Bros. or any one representing them for the shipment of corn and oats from Kansas City to Shreveport or other common points at eight cents; but claimed that during the months of September and October, 1901, it had declared and published a rate of 10 cents per hundred pounds on corn and oats from Kansas City to Shreveport, Texarkana, and other common southern points and that this rate had been filed with the Interstate Commerce Commission at Washington, as required by the interstate commerce act, and that this rate was in force until October 31st, about which time it changed its schedule and advanced the rate to 14 cents, which rate was also published, and filed with the Interstate Commerce Commission; that if any contract existed by which Forrester Bros. were to receive a special rate lower than that so declared and published, such contract would be in violation of the interstate commerce act and void. It was also contended by the garnishee that its only agreement concerning the shipment of corn and oats coming to it over the northern connecting lines was made with one Shauffler, traffic agent for such lines, by which it agreed to divide