follows: That R. E. Ela, Jr., party of the first part and C. F. McCormick, party of the second part, have entered into a contract this 1st day of February, 1903, that R. E. Ela, Jr., is to be the manager of said drug store now owned by C. F. McCormick located in Kansas City, Kansas, on lot two (2) block three (3), No. 1932 Walnut Park Addition. It is agreed between the parties that R. E. Ela, Jr., is to be in full charge of the store and in full control of its management, and to be its manager and it is further agreed between. the parties to this contract that C. F. McCormick is the sole owner and proprietor of all stock, merchandise and fixtures in said store. It is further agreed between the party of the first part and the party of the second part that the stock of goods shall be kept up to the invoice price which the goods invoiced on or about the first of October, 1902, and it is further agreed that the amount of stock, including medicines, drugs, sundries, fixtures, other goods and merchandise, shall always be equal and amount to invoice price which the goods invoiced on or about the first days of October, 1902. It is further agreed and consented on the part of R. E. Ela, Jr., that he will put in all of his time, energy and efforts to control such business, and that he will not engage in any other business while this contract is in effect, but give his whole time and attention to the management of the store now subject of this contract. It is further agreed that R. E. Ela, Jr., shall have full charge of said store, and that R. E. Ela, Jr., of the first part, out of the proceeds of the business shall pay all expenses in operating the store, including light, fuel, water, and insurance. It is further agreed that R. E. Ela, Jr., is to pay C. F. McCormick, party of the second part, eight per cent. per annum on five thousand ($5,000) dollars. To be paid on the 25th of each month. The first payment is to be paid February 25, 1903. The amount to be paid each month is thirty-three (33%) dollars and the payment of thirty-three (33%) dollars is to be paid as long as this contract is in force. R. E. Ela, Jr., is to have all of the profits the store makes after paying the eight per cent. per annum monthly payments to C. F. McCormick, of the second part, and that the party of the first part shall draw no salary whatever. It is further agreed by and between the parties hereto that the party of the second part shall have the privilege and reserve the right to put an end to and terminate this contract any time if he believes the business is not running satisfactory. It is further agreed on the part of the party of the first part that the party of the second part shall have the right to sell, convey and dispose of this stock of merchandise at any time that he can secure a buyer for the same and also take immediat possession of said stock when he has found a buyer. It is further agreed by party of the second part that R. E. Ela, Jr., is to have an option on buying

said stock if it is to be sold or disposed of, option good for 30 days. It is further agreed between party of the first part and party of the second part that second party can make a weekly inspection of the books and examine the stock and demand an accounting at any time desired. It is further agreed that R. E. Ela, Jr., party of the first part, and C. F. McCormick, party of the second part, that first party can terminate this contract at any time he desires. In witness whereof, parties hereto set their hands and affix their seal on the day and year first above written. R. E. Ela, Jr. C. F. McCormick."

The goods purchased of plaintiffs below, under the Campbell régime, were not paid for, and hence this action was brought and a recovery had against Campbell.

Ryan & Ryan, for plaintiff in error. C. W. Reeder, Austin & Austin, and Karnes, New & Krauthoff, for defendant in error.

JOHNSTON, C. J. (after stating the facts). The material facts in the case are not in dispute, but there is a contention as to the relation of J. A. Campbell to the drug business and his liability for the contracts made while he was conducting it. These depend mainly upon the interpretation and obligation of the McCormick-Ela contract under which Campbell continued the business. At an early stage of the litigation there appears to have been some claim that the contract created a partnership relation, but all parties now agree that McCormick and Ela were not partners, and Campbell therefore does not stand in such relation and cannot be held liable as a partner. He does contend that he was warranted in continuing the business, and did so without personal liability because Ela's contract did not terminate with McCormick's death. It will be observed that it was a personal contract which ended with the life of McCormick. It was expressly stipulated that McCormick should be the sole owner of both goods and fixtures; and, while Ela was given the management of the store, he was not to have any ownership or interest in it. Instead of receiving a fixed salary, his compensation was to be regulated by the extent of the business done; that is, he was to receive as compensation all above a fixed amount of the earnings which was to be paid monthly to McCormick. Aside from this, there was the specific provision that the contract could be terminated at any time by McCormick, and if McCormick was not bound to continue the relation with Ela, it is certain that no obligation rested upon Campbell to do so. It is clear, therefore, that the contract was dissolved by the death of McCormick, and that it had no binding effect on Campbell. lips, 162 Mass. 399, 38 N. E. 416, 44 Am. St Rep. 370; 170 III. 179, 48 N. E. 688;

Marvel v. Phil1117, 26 L. R. A. Smith v. Preston, Shultz v. Johnson's

He

Adm'r, 5 B. Mon. (Ky.) 497; Dickinson v. Calahan's Adm'rs, 19 Pa. 227; Bland's Adm'r v. Umstead, 23 Pa. 316; 2 Woerner on American Law of Administration, § 328. When Campbell renewed the contract with Ela for a continuance of the business he made himself individually liable for such obligations as his agent should contract. Upon his appointment as administrator the legal title of the stock of goods vested in him, and it became his duty to sell it and administer the proceeds as the statute provides. had no authority to continue and carry on the drug business for the estate, and contracts made by him in the conduct of the business bind him personally and not the estate. A representative expressly authorized by a will to carry on the business of the testator for a time may do so under the direction of the probate court. One so authorized is not bound to incur the hazard, but if he does, the contracts made will be his own, and he will be individually bound by them. In 2 Woerner on American Law of Administration, § 328, it is said: "The executor carrying on the business under the will is personally liable to the persons with whom he deals as such; but they have a right to indemnify themselves for the payment of the debts thereby incurred, and an equitable right arises to the trade creditors to resort to the estate, if their remedy against the executor is unavailable."

Here there was no will, and the administrator's only duty with respect to the business was to wind it up. In 18 Cyc. 241, it is said: "The general rule is that neither an executor nor an administrator is justified in placing or leaving estates in trade, for this is a hazardous use to permit of trust moneys, and trading lies outside the scope of administrative functions. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred, without, on the other hand, allowing him to receive the benefit of any profits that he may make; the rule being that the persons beneficially interested in the estate may either hold the representative liable for the amount so used, with interest, or at their election take all their profits which the representative has made by such unauthorized use of the funds of the estate." See also, Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493; Lucht v. Behrens, 28 Ohio St. 231, 22 Am. Rep. 378; Williams on Executors (7th Ed.) 791; Schouler's Executors and Administrators, § 325; 11 A. & E. Encycl. of L. 974. Ela was not employed by Campbell to wind up the business of the estate, but to carry it on in the same manner and upon the same plan in which it had been conducted during McCormick's lifetime. It was not carried on in pursuance of an order of the court or other authority, and hence Campbell took the risk of any loss that might occur and made himself individually liable

for the purchases of goods and other contracts made by his agent.

We find no error in the record, and therefore the judgment will be affirmed. All the Justices concurring.

(73 Kan, 789)

COX et al. v. CITIZENS' STATE BANK. (Supreme Court of Kansas. May 12, 1906.) 1. BILLS AND NOTES-TIME FOR PRESENTATION OF CHECK FOR PAYMENT.

Payment of a check need not be demanded immediately, but, if the party receiving it and the bank on which it is drawn are in the same place, presentation of it on the day after it is given is timely, and, if they are not in the same place, it is only necessary to put it in the course of collection within such time.

[Ed. Note.-For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1095-1098.] 2. SAME-EFFECT OF DELAY.

In order for delay in forwarding and presenting a check for payment to defeat recovery on the check by a bona fide holder, the drawer must show the delay caused him to suffer loss. 3. SAME-ACTION ON CHECK-DISREGARDING

INDORSEMENTS.

An indorsee, in suing on a check which was not paid, may disregard or cancel all indorsements carrying it forward from him to the drawee.

Error from District Court, Allen County. Action by the Citizens' State Bank against W. D. Cox and others. Judgment for plaintiff. Defendants bring error. Affirmed.

Chris Ritter and C. J. Peterson, for plaintiffs in error. Amos & Orton, for defendant in error.

PER CURIAM. It is the law that checks are payable instantly on demand, but it is not the law that payment of a check must be demanded instantly. Granting that a check has some features of a bill of exchange, under the statutes of this state, it need not be presented until the day after it is given, if the party receiving it and the bank upon which it is drawn are in the same place. If they are not in the same place, it is only necessary that the check be put in course of collection within the time otherwise allowed for presentation. It cannot be said to be due until demand for payment is made. If not forwarded and presented within the time allowed by the rules of comn.ercial law, the drawer must show the delay caused him to suffer loss, before he can defeat recovery by a bona fide holder. The same rule holds regarding protest and notice of nonpayment. Geo. M. Noble & Co. v. Wm. Doughten (opinion of this court filed Dec. 9, 1905, and cases there cited) 83 Pac. 1048. The statement in the defendant's answer that the check was due the day it was drawn could not be true, and no facts showing a violation of the rule of diligence in presenting the check and subsequent damage are pleaded. In suing upon the check the indorsee had the right to disregard or cancel all indorsements carrying the check for

ward from it to the drawee. The defendant's remedy is against the party defrauding them, and not against the party who in good faith cashed their check.

The judgment of the district court is affirmed.

(73 Kan. 686)

STALEY v. HUFFORD et al. (Supreme Court of Kansas. May 12, 1906.) BROKERS-SALE OF REALTY-COMMISSIONS.

Where one employs a real estate broker to find a buyer for land which he occupies with his wife as a homestead, and the broker produces a purchaser ready and willing to take the property upon the prescribed terms, the latter's claim for compensation is not defeated by the fact that a sale is prevented through the refusal of the wife to execute a conveyance.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, § 94.]

(Syllabus by the Court.)

Error from District Court, Allen County. Action by J. H. Hufford and another against C. G. Staley. Judgment for plaintiffs, defendant brings error. Affirmed.

Chris Ritter, for plaintiff in error. Atchison, for defendants in error.

J. B.

MASON, J. C. G. Staley employed Hufford & Napier, real estate agents, to sell for a stated price a tract of land, a part of which was occupied by himself and wife as a homestead, or to arrange a satisfactory exchange of this for other property. The agents found a buyer, one C. A. Martin, who was ready and willing to take the land upon terms that were satisfactory to Staley, and Staley and Martin signed a paper purporting to be a contract for its sale or exchange. Staley's wife did not execute this instrument or otherwise consent to the bargain. She refused to execute a deed, and the deal consequently fell through. Hufford & Napier sued Staley for a commission and recovered a judgment which it is the purpose of this proceeding to reverse.

The principal contention of the plaintiff in error is that, inasmuch as the contract entered into by Staley and Martin was void for want of the consent of Mrs. Staley, there could be no recovery for services in connection with it; Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431, being relied upon to support this view. The invalidity of that contract does not affect the matter. It was competent for Staley to employ Hufford & Napier to find a buyer for property which he had no power to convey, just as he might have employed them to get a bidder for property which he did not own, but which he expected to be able to control. Having asked and received their services, no reason is apparent why he should not pay them therefor; they having done everything possible on their part, and their efforts to accomplish a sale having been rendered futile. by the inability of Staley to procure a conveyance,

The

which resulted from no fault of theirs. purported contract signed by Staley and Martin is of no importance in the matter, except as evidence that the terms of sale or exchange negotiated by Hufford & Napier in fact met the requirements of Staley, and therefore that the agents had performed the duty they had undertaken. The case is within the reason of the rule that a real estate broker's claim for commission is not defeated where a sale is prevented by the fault of the owner, his employer. A letter written by the agents contained an expression to the effect that they expected no pay, unless they made a trade. This did not alter the essential character of their contract with Staley, or affect the application of the rule referred to. 23 A. & E. Encycl. of L. (2d Ed.) 919, 920.

Complaint is also made of the refusal of the court to permit the introduction of certain testimony, but the offer was made under such circumstances that it was clearly within the discretion of the court to refuse to consider it on account of the time of making it. The judgment is affirmed. All the Justices concurring.

(73 Kan. 511)

FOWLER et al. v. WOOD et al. (Supreme Court of Kansas. May 12, 1906.) 1. STATES-BOUNDARIES-NAVIGABLE WATERS -CHANGE IN COURSE.

If a navigable river dividing the territory of two states changes its position by gradual and imperceptible encroachment or insensible recession, so that the process by which the removal is accomplished cannot be detected while in operation, the boundary follows the shifting thread of the stream.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. States, § 8.]

2. NAVIGABLE WATERS-TITLE TO BED AND BANKS OF NAVIGABLE RIVER.

In Kansas the title to the bed of a navigable river is vested in the state. Private ownership in bordering land extends only to the river's margin, and if the position of the stream changes in the manner described in paragraph 1, the boundary between the land of the state and that of other proprietors follows the movement of the river's edge.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 270.] 3. SAME-SUDDEN CHANGE.

If, while a river of the character described is at flood stage, an ice gorge causes a sudden and violent irruption of the water, whereby the lands upon one side are visibly degraded or submerged, or a new channel is cut, the state boundary remains stationary at its former location, and the titles and boundaries of private owners remain unchanged.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 279; vol. 44, Cent. Dig. States, § 8.]

5. SAME-ACCRETION AND RELICTION.

New formations arising from the bed of a river belong to the owner of the bed, and new formations added to a bar or an island in the channel of a river by the processes of accretion and reliction belong to the owner of the island or bar.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 270.] 6. SAME.

In order to effect a change of boundary, formations resulting from accretion or reliction must be made to the contiguous land and must operate to produce an expansion of the shore line outward from the tract to which they adhere.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 267.]

7. SAME.

If the owner of a body of land, a part of which has been submerged, convey the upland and retain title to the remainder, the purchaser, upon the reappearance of the submerged portion, can include it within his boundary only by the processes of accretion or reliction.

8. SAME-RIGHTS OF RIPARIAN OWNERS.

An owner of land bounded by a navigable stream has the right to protect his soil against inroads of the water, to secure accretions which form against his bank, and to erect and maintain improvements necessary to promote commerce, navigation, fishing, and other uses of the river as navigable water; but he has no right, by obstructions placed across the main current, to deflect the stream itself into a new channel.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 247.]

9. SAME-ACCRETIONS.

If the channel of a river separating mainland belonging to one proprietor, and an island, bar, restored land, or other formation belonging to another proprietor, be deflected and fill up so that the two bodies of land join, each owner is entitled to the accretions to and the relictions from his own shore. If the channel fill up from the bottom, without accretion to or reliction from either side, the boundary is the center of the channel, as it was before the water left it.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 270.].

-

10. PARTITION — FINALITY OF DECREE SUBMERGED LAND-REAPPEARANCE AFTER PARTITION.

After proceedings had been commenced to partition a body of land bounded upon two sides by navigable streams and containing 250 acres more or less, a portion of the tract was submerged by a violent flood. A survey was made before the water had subsided, and the partition commissioners reported that, owing to the waste by the washing away of the banks of the rivers, the quantity of land had decreased to 200 acres. Allotments were made proportional to that quantity, and the report was confirmed. The next year, when the water went down, a portion of the submerged land reappeared, and all of it, with accretions added, was subsequently restored. Held, the owners are entitled to a partition of the undivided land, with its accretions, on the equitable ground of a mistake as to the existence of a part of the subject-matter of the former suit.

11. BOUNDARIES - NAVIGABLE RIVER - PRESUMPTION.

If a private owner grant land, bounding it generally upon a river, the presumption that the grant will carry title as far as he owns is rebuttable, the question being purely one of intention; and when the intention is ascertainable from the record of a proceeding or the

containing some 274.7 acres. The land was low bottom land, of the peculiar formation which characterizes the valley of the Missouri river in this region, and subject to the vicissitudes which result from the conduct of that capricious stream. By purchase and descent various parties acquired undivided interests in this land. In some instances quantities in acres were conveyed, to be derived from the undivided holdings of the grantors. By the close of the year 1866 some 25 different parties claimed to be tenants in common of the tract, and, on January 23, 1867, an action was brought in the district court of Wyandotte county to partition it. The petition designated the land as "all that parcel of land lying in the forks of the Missouri and Kansas rivers and between the Missouri state line and the Kansas river as lies north of Turkey creek." The area was estimated at "about 250 acres more or less." On April 11, 1867, the court ordered that, "for the purpose of ascertaining the quantity of land included in the boundaries mentioned in the petition of said plaintiffs a survey of the same be made, and it being represented that John Runk, Jr., is a competent person to make said survey, he is hereby empowered to make the same and report by Saturday morning next." On April 13, 1867, a decree of partition was entered, which describes the land as it is described in the petition, and which closes by ordering a writ in due form to be issued to the sheriff of Wyandotte county, commanding him, by the oath of three judicious and disinterested freeholders named, to cause "the same said land" to be set off and partitioned among the parties found by the court to be entitled to portions thereof. On September 26, 1867, the partition commissioners made their report. Those who were entitled to acre quantities were given shares out of the undivided interests of their grantors. In the description of various allotments, boundary lines are described as running “to the east bank of the Kansas river; thence down the same *" etc., and "to the west bank of the Missouri river; thence down the same * * *" etc., and on the plat accompanying the report a number of lots are extended from river to river. The commissioners' report concludes with the following statements: "By a survey which was made of the lands during the April term of the first district court, 1867, they were found to contain 208.4 acres, upon which a division was based. * A careful survey

made during the month of July last shows that, owing to the waste by the washing away of the banks of the Missouri and Kansas rivers, the quantity of the land has decreased to 200 acres. The allotments are proportioned to this in quantity, and give an area to Thomas Ewing, Jr., of 1863/100 acres; Armstrong heirs, 3458/100 acres; James, 5442/100 acres; Wood. 2094/100 acres; Wm. Weer's heirs, 25 13/100 acres; Swope, 96/100 acres, and the Union Pacific Railway

E. D. 1158/100 acres. The accompanying plat hereto attached represents the allotments with the courses and distances marked on the lines and the several areas in acres and hundredths of an acre." The report of the commissioners was confirmed by the court on October 15, 1867, and no action having been taken to review the proceedings, they became final.

Subsequent to the partition suit the Missouri river continued to encroach upon those allotments of which it formed the boundary, and, in order to prevent their lands from washing away, the several owners entered into a contract with James F. Joy to deed him certain tracts bordering upon the stream and extending back for quantity, in consideration of his riprapping the river bank. The agreement is dated in August, 1868, and the work was completed within a few months following. Deeds were duly delivered to Joy, whereby he acquired the entire Missouri river frontage from the mouth of the Kansas river to the state line, except that opposite the land of two of the allottees in the partition suit, Swope and Ewing, who paid for their proportion of the work of riprapping in cash. The calls in the Joy deeds were to the bank of the Missouri river and down and along the same. Later the title of these riparian owners passed either mediately or directly to the Armour Packing Company, the Hannibal & St. Joseph Railroad Company, the Fowler Land Association, the Metropolitan Water Company, and others. From the time of the partition down to the time when the bank was protected, a considerable quantity of land along the channel of the river was carried away by erosion. The final survey under which partition was made is known as the Miller survey and the riprap bank, or Joy deed line, lay south of the north line of the Miller survey at distances varying from 200 to 300 feet. The composite map following indicates crudely the position of the Missouri river bank at the time of the government survey, the Miller survey line, the riprap bank or Joy deed line, several of the allotments made by the commissioners in the partition suit, and affords some other information which may be useful in arriving at a comprehension of the case. From 1868 until 1889 the deep water channel of the Missouri river lay next to the riprap bank. Business enterprises requiring access to the river were established there. For a long time the Fowler Packing Company maintained a wharf upon its land (partition lot 16 and a segment of lot 15), from which steamboats loaded and discharged their cargoes, and all the commerce of the stream was carried upon the current, which pressed against that bank. About the year 1889, the main current was diverted to the Missouri side of the stream. The old channel filled up and, at the commencement of this litigation, the river was separated from the old riprap bank by a wide stretch of land many