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(230 P.)

Attached to the mortgage was a purported assignment which, however, was not асknowledged by Mr. Hood. The finding by Christenson of the Hoover note and mortgage in their safety deposit box was their first knowledge of the existence of such instru

ments.

Rossman, the remaining executor, sought to recover the note and mortgage. The controversy, therefore involves the right and authority of Hood, as executor, to dispose of them without the knowledge or consent of his coexecutor, and without an order of the probate court.

[1] The defendants contend that from the time the two executors qualified until Hood's death, Hood had full charge of all the personal property, and full power and authority to sell and dispose of it without consulting his coexecutor. In support of this contention, they cite the general rule:

"Pay to the order of William Christenson (fer, or assignment of the note and mortgage without recourse. Estate of Ellen E. Little, in question. The probate judge testified that by E. A. Hood, executor." he had been in office since January, 1921; Rossman and Hood, was filed June 20, 1921; that the annual report of the executors, that he (the probate judge) had never made an order authorizing the executor to sell or assign the mortgage. According to the records of the bank, the Mehrman note was paid on July 14, 1921. The facts not only there was no authorized or valid sale. To fail to disclose a sale, but clearly show that have made a private sale of the note and mortgage would have required an order of the probate court. None was made. On the other hand, the evidence not only disclosed no public sale, but dispels any conclusion that there could have been one. The Christensons had no knowledge of the note and mortgage being in their box until after Hood's death, in January, 1922, six months after the payment of the Mehrman note, and after the date of the alleged assignment of the Hoover mortgage to them. Any attempted sale to them, then, must have been by Hood, acting as their agent. Hood, as executor of the Ellen E. Little estate, was without power to sell the property to himself as agent of the Christensons. He could not act as both seller and buyer, either in his personal or representative capacity. 6 R. C. L. 592, 13 C. J. 261. While the books of the bank showed a deposit of $1,000 to the Ellen E. Little estate, on the day the Mehrman note executed. the estate actually got no money. was paid, and the alleged assignment was The entry on the books of the bank was a paper entry only. What happened is perfectly apparent. Hood was cashier of the bank. He had a key to the safety deposit box of the Christensons. He was executor of the estate of Ellen E. Little. When $1,The theory of the defendants must fail. 537.50 was paid on the Mehrman note, he The attempted sale or transfer was not made put $537.50 of the amount to the credit of in conformity with the procedure laid down the Christensons. He made the records of by the statute. Section 22-603, R. S., reads: the bank show a payment of the balance of "The sale of personal property shall be $1,000 to the estate of Ellen E. Little, but made at public sale, after at least two weeks' the estate did not receive it. notice having been given in some newspaper in of the $1,000 is not shown. Whether he ac general circulation throughout the county, or tually put the Hoover note and mortgage in by advertisement set up in at least five public the Christensons' box at that time, or later, places in the county where such sale is to take is of no moment. The attempted transfer place. When the interest of the estate re- and assignment, whenever made, was invalquires it, the probate court may order the ex-id. Under all the circumstances the plainecutor or administrator to dispose of said personal property at private sale at not less than three-fourths of its appraised value."

"That several coadministrators or coexecutors are, in law, but one person representing the testator, and acts done by one in reference to the administration of the testator's goods are deemed the acts of all, inasmuch as they have a joint and entire authority over the whole property belonging to the estate." 11 R. C. L. 405.

And:

"That one or two or more executors possess the power of selling and disposing of the personal assets of the estate as fully as if all joined in the act of transfer." 18 Cyc. 1332.

They also argue that the presumption of regularity of official acts applies to an executor, and that it must be presumed that Hood's acts were in all respects regular.

[2] The records of the probate court disclosed no order authorizing the sale, trans

What became

tiff, who is the remaining executor of the
Ellen E. Little estate, is entitled to the pos-
session of the note and mortgage.
The judgment is affirmed.
All the Justices concurring.

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August, 1915, and left a will, giving to his widow a life use of his property with power to sell with remainder to his children. The widow and the son, Jesse D. May, and two daughters continued to live on the land which was managed and operated wholly by Jesse

1. Eminent domain 238 (3)-Award of dam-D. May and as agent for the others interestages in proceedings to locate road appealable to district court by one interested.

One who has an interest in real property and who is not satisfied with the award of damages made by the board of county commissioners in a proceeding to locate a road thereon, may appeal to the district court.

2. Eminent domain 238 (3) - Dismissal of appeal of party for himself and as agent for remaining owners, in proceeding to locate road, held erroneous.

Where, in a proceeding for locating a road the notice to the landowner is addressed to Jesse D. May, agent, and he meets the view ers and files a claim for damages which is signed Jesse D. May, agent, and an allowance is made to him as Jesse D. May, agent, and he is not satisfied with the award made and appeals to the district court, signing the appeal bond Jesse D. May, and, on the hearing in the district court, it is shown that Jesse D. May had an undivided one-third interest in the real

property, and that he represented the owners of the other interests as their agent, and that the appeal was taken for and on behalf of himself and such others, it is error to dismiss the appeal because it is not prosecuted in the name of the real party in interest:

ed. In 1918 proceedings were had before the board of county commissioners for the relocation of a road along the May farm which took some of the land, and notice was given to Jesse D. May, as agent or guardian, of the action about to be taken, and the time when the viewers would meet. He appeared and filed a claim for damages in the sum of $1,000, which was signed "Jesse D. May, Agent." The viewers and commissioners allowed him $110, making the allowance to Jesse D. May, agent. Not being satisfied with the allowance, an appeal was taken, the necessary papers and bond being signed Jesse D. May. At the hearing of the appeal in the district court, there was evidence that Jesse D. May had an undivided one-third interest in the land in addition to such interest that he might have under his father's will, and that in all that he did in this matter he was acting for and on behalf, not only of himself, but of his mother and any other members of the family who had any interest in it. There was also evidence as to the amount of damages. At the close of appellant's evidence, the court sustained a demurrer and dismissed the appeal, upon the

Appeal from District Court, Riley County; ground that the appeal was not being proseFred R. Smith, Judge.

Proceeding by Jesse D. May, individually and as agent of the heirs of Jesse M. May, 'deceased, against the Board of County Commissioners of the County of Riley. From an order of the district court sustaining a demurrer to the evidence, and dismissing an appeal from an award of damages of the Board of County Commissioners in proceeding locating a road, plaintiff appeals. versed, with directions.

Re

cuted by the real parties in interest, and this is the judgment appealed from.

[1] The statute provides:

"Any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decisions of said coard of county commissioners to the district court." R. S. 68–107.

So, even if it be argued that the appeal is taken by Jesse D. May personally, it should not have been dismissed because not prose

Charles Hughes, of Manhattan, for appel-cuted by the real party in interest, for it is clearly shown, and at least tacitly admitted,

lant.

A. M. Johnston, Co. Atty., of Manhattan, that he had a one-third interest in the real for appellee.

HARVEY, J. This is an appeal from an order sustaining a demurrer to the evidence, and dismissing an appeal from an award of damages of the board of county commissioners in the proceedings locating a road. Briefly stated the facts disclosed by the record are as follows:

At some time prior to 1915, James M. May bought real property near Manhattan. At the time his son, Jesse D. May, contributed one-third the purchase price with an understanding that he had one-third interest in the land, but the title was taken in the name of the father. James M. May died in

property.

[2] But it seems clear from the entire proceedings and the evidence adduced, that the appeal was taken in the same capacity in which he presented the claim, in the same capacity in which he and others interested in the proceedings were notified of the laying out of the road. Perhaps the proceedings would have appeared more uniform had the word "agent" appeared on the appeal bond, but since the evidence showed the capacity in which the appeal was taken, that is not very material. The damages, if any, to the land was the thing to be ascertained. All the county was interested in was knowing that whatever sum it paid would relieve it

(230 P.)

from further claims of damages. Brown tory to the defendant; that the plaintiff then County v. Burkhalter, 75 Kan. 321, 89 P. 655; Nicholson v. Nicholson, 83 Kan. 223, 109 P. 1086.

The judgment will be reversed, with directions to overrule the demurrer to the evidence.

All the Justices concurring, except JOHNSTON, C. J., who did not sit.

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(Syllabus by the Court.)

1. Brokers 82(I)-Petition held to state cause of action for broker's commission.

The petition stated a cause of action for a real estate agent's commission on the exchange of land.

2. Appeal and error 1001 (1)—Jury's determination of procuring cause of exchange of land supported by evidence conclusive on appeal.

In an action by a real estate agent to recover commission for the exchange of land, where the principal question of the trial was who was the procuring cause of the exchange, the determination of that question by the jury from the evidence, when properly instructed, and if supported by evidence, is conclusive on appeal to the Supreme Court.

Appeal from District Court, Barton County; C. R. Douglass, Judge.

Action by Stewart T. Frederick against Ben Neiberline. From a judgment for plaintiff, defendant appeals. Affirmed.

R. C. Russell, of Great Bend, for appellant.

D. A. Banta, of Great Bend, for appellee.

authorized Martin & Son to procure other land to be exchanged for the land of the defendant; that other land was procured; that an exchange was made; and that the commission earned by the plaintiff had not been paid.

It is not pointed out what other allegation was necessary to be set out in the petition in order for it to state a cause of action. Everything that was necessary to entitle the plaintiff to recover his commission was alleged. It follows that the petition stated a cause of action, and that the demurrer to the petition was properly overruled.

2. The order overruling the demurrer of the defendant to the evidence of the plaintiff, and the sufficiency of the evidence to sustain the verdict in favor of the plaintiff, presents a different question. An examination of the evidence is necessary.

The plaintiff on his direct examination testified:

"That Neberline and Martin made arrangements to go back another day and inspect other land, and an arrangement was made that Martin was to go on and effect a deal if he could. providing he could find land that would suit Neiberline; that later a deal was made between Mr. Martin and Mr. Neiberline for an

exchange of lands."

On his cross-examination he testified:

"That Mr. Martin is a real estate man living at Sterling, Kan.; that appellee took Mr. Martin and went up to inspect the farm of appellant, and appellee and appellant went to Pawnee county; that they looked over some land in Pawnee county that Mr. Martin had parties all returned to Great Bend, and appellisted for sale; that no deal was made, and lee took appellant back home; that appellee never had any conversation with appellant from that time until after the appellant finally made a trade for some other land with Mr. Martin; that on the trip to Pawnee county appellee and Mr. Martin showed the appellant two half sections of land, but that neither of those deals went through; that appellee had no lands listed in Pawnee county, and that the lands shown to appellant were lands listed with Mr. Mr. Martin had the land listed for sale that Martin; that appellee did not know whether appellant finally obtained and that he [appellant] had nothing whatever to do with the listing of any Pawnee county land.

MARSHALL, J. The defendant appeals from a judgment against him for real estate agent's commission on the exchange of real property. A demurrer to the petition was overruled, as was also a demurrer to the evidence of the plaintiff. The defendant argues that both demurrers should have been sustained, and that there was not sufficient evidence to support the verdict of the jury. [1] 1. The petition alleged that the plaintiff was engaged in the real estate business at Claflin; that the defendant owned certain land; that he authorized plaintiff to exchange the land of the former for other land; that the plaintiff negotiated with Martin & Son, real estate agents at Sterling, asking for land to Lo exchanged; that an attempt to exchange the land of the defendant the real estate business about 12 years, ac"That he lived in Sterling, Kan., and was in for land in Pawnee county was made quainted with the parties to this action; that through Martin & Son, but the attempt failed he saw Mr. Frederick in Sterling; that about because the land offered was not satisfac-two weeks later he went with appellee to ap

"Q. Now, what, if anything, did you have to do with the consummation or putting through with the deal that Neiberline finally accepted? A. After I showed Mr. Neiberline's place I Mr. Martin's business to show the other." paid no more attention to it, because that was

S. M. Martin, one of the real estate agents at Sterling, testified as follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lant's home in Barton county, and that he had never seen Mr. Martin before that time, and that he was introduced to Mr. Martin by the appellee; that Martin looked his farm over, and that arrangements were made to go to Pawnee county; that he and appellee and Martin went to Pawnee county and looked over two pieces of land; that neither of them suited him; that they all came back to Great Bend, at which time he told Mr. Martin that he would give him two or three weeks to find some land that was suitable, and that he would trade for some land in Pawnee county; that he rode home from Great Bend with Mr. Frederick; that he never recognized any liability to appellee for a commission; that he asked Mr. Martin whether or not he owed him anything because he dealt with him, and Mr. Martin told him he did not owe him anything; that he "valued his Barton county land at $14,000."

pellant's farm, and all the parties then drove |
to Pawnee county and looked at two half sec-
tions of land that he [Martin] had listed for
sale and exchange at that time; that after
looking over the land they failed to complete
a sale on either and came back to Great Bend
and separated; in about 13 or 14 days he call-
ed Neiberline and told him that he now had a
half section listed and thought they might make
an exchange, and made arrangements with him
to meet him in Great Bend to go and look at
the farm, and after looking at the farm made
the exchange; that when the deal was com-
pleted appellant asked him if he owed him a
commission, and he said 'No'; that the usual
commission was 5 per cent. on the first $1,000
and 22 per cent. thereafter; that the rea-
sonable value of appellant's farm was $12,400,
and that he had never known appellant until he
was introduced to him by appellee.

On cross-examination, Martin testified as follows:

"That while he and appellant were together appellant said to him that he would give him two or three weeks to find him a farm in Pawnee county for exchange for his farm; that the appellee had nothing to do with the trade and exchange of appellant's farm for the land in Pawnee county; that he [Martin] made the deal himself some three weeks later."

The defendant on his direct examination testified:

"That he had talked to him [plaintiff] about trading his [defendant's] farm in Barton county for some land near Macksville; that later appellee phoned to him and asked whether or not he would trade for some land south of Larned; that he went out to see the land in Pawnee county with his son-in-law and Mr. Martin; that they looked at two pieces of land and returned to Great Bend and then went home; he had no further conversation with appellee about any further deals and had never had any further conversation with the appellee about any further deals until about 6 or 7 weeks after the trading had been made; that about ten days after he had made his trip to Pawnee county, Mr. Martin called him up and asked him whether or not he was going to make a deal, and he told him, 'No,' and that appellant asked him whether or not he had anything he could show him and he said, 'No,' but he would look around and see what he could do, and later he called and asked appellant to come to Great Bend about a week or ten days later; that he went with Martin to Pawnee county and exchanged his Barton county property for Pawnee county land; that he did not trade for any land that Mr. Frederick, the appellee, had shown him, and that it was not land that Mr. Martin owned personally."

On cross-examination, the defendant testified:

"That he had known appellee about a year; that he did not know what business he was engaged in, that he told him at Macksville that he wou like to trade for some land near Macksville; that two or three months after that appellee and Mr. Martin came to appel

The evidence established that the plaintiff authorized Martin & Son to find land to be exchanged for the land of the defendant; that the first effort of Martin & Son to bring about an exchange of land failed; that the defendant gave them further time in which to find other land to be offered in exchange; that other land was found and offered; and that an exchange was made.

[2] The controlling question in the case is: Was the plaintiff the procuring cause of the exchange of land? That is a question of fact, not a question of law. It is a question that must be determined from the evidence. Ordinarily, it is not a fact that can be established by direct testimony, but is an inference of fact to be drawn from other facts proved. From the evidence, the jury, under proper instructions on that question, concluded that the plaintiff was the procuring cause of the exchange of land. That conclusions was approved by the court, was justified by the evidence, and is binding on this court.

That brings this case within the rule often declared in this court that "a real estate agent has earned his commission when he procures a purchaser ready, willing, and able to buy upon terms which the owner has accepted or agreed to accept." Wacker v. Hester, 102 Kan. 710, 171 P. 1151.

The defendant cites Latshaw v. Moore, 53 Kan. 234, 36 P. 342. The court there

said:

"Real estate brokers employed to procure a purchaser or a trade for property for a specified commission are not entitled to recover the commission agreed upon, unless they were the primary, proximate, and procuring cause of the sale or exchange which was made."

The rule there declared does not differ from the rule that a real estate agent who is the proximate and procuring cause of a sale is entitled to his commission. The judgment is affirmed. All the Justices concuring.

(230 P.)

WADDELL v. KANSAS SOLDIERS' COMPENSATION BOARD. (No. 25975.) (Supreme Court of Kansas. Nov. 8, 1924.)

(Syllabus by the Court.) Bounties-Order refusing World War veteran's application for compensation, filed after January 1, 1924, held proper.

The facts recited and relied on to excuse the presentation of a claim for compensation until after the statutory limit of time for receiving and auditing of such claims examined, and held, that the compensation board properly refused to receive and audit the claim.

Original mandamus by Everett V. Waddell against the Kansas Soldiers' Compensation Board, to compel defendants to act on plaintiff's application for compensation. On motion to quash. Motion sustained, and action dismissed.

It seems clear that plaintiff's cause must fail. He was not a minor. He was under no legal disability. To suit his own inclination he tarried in France. He did not keep in touch with affairs in his home state. That he was shipwrecked was unfortunate; likewise that he was ill for some time in But these untoward occurrences the East. only covered a relatively small part of the time provided for the presentation of claims. The state cannot be expected to maintain permanently the necessarily expensive establishment of a compensation board to audit and allow claims which are unreasonably delayed in their presentation. For all practical purposes, so far as Kansas was concerned, the World War ended by the middle of the year 1919, when the mass of Kansas soldiers got home, or could have gotten home. R. S. 73-102. The setting of the date, January 1, 1924, as the limit when compensation claims would be received and audited was reasonable to the point of

R. M. Anderson of Beloit, for plaintiff. Charles B. Griffith, Atty. Gen., and Donald generosity, and only complete indifference W. Stewart, Asst. Atty. Gen. (Ralph W. on the part of plaintiff to what was going Oman, of Topeka, of counsel), for defend-on at home could have prevented him from

ants.

DAWSON, J. The plaintiff, a citizen and resident of Kansas, enlisted in the United States army in 1913. His term of enlistment expired during the World War, and he reenlisted, and served abroad until he was honorably discharged at Gievres, France, on June 20, 1919. Plaintiff remained in France for over three years, sailing for the United States in February, 1923. He was shipwrecked, rescued, and landed at Baltimore, where he secured employment. During the winter of 1923-24 he learned that the state of Kansas had enacted compensation for Kansas soldiers, but he was then seriously ill, and unable to learn the requirements for securing it. In May, 1924, he returned to Kansas, at which time he made application for compensation.

The defendant board declined to consider, allow, or reject his claim for compensation because of the statute, which in part reads:

knowing of the adoption and enactment of compensation for Kansas soldiers in plenty of time to take advantage of its terms. The motion to quash is sustained, and the action is dismissed.

All the Justices concurring.

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(Supreme Court of Kansas. Nov. 8, 1924.)

(Syllabus by the Court.)

1. Criminal law 628 (3)—Permitting indorsement of witnesses' names on information after case called for trial held not abuse of discretion.

In a prosecution for grand larceny, the indorsement of names of witnesses on an information after the case is called for trial is held not to have been prejudicial.

2. Larceny 32(I)-Title to property may be laid, in information, either in owner or person from whom property stolen.

In an information charging larceny, the title to the property may be laid either in the owner or the person from whom the property was stolen.

"73-146. Time for Presentation of Claims. That the state compensation board is directed not to receive any claim or claims, under the provisions of the compensation acts heretofore enacted and that may be enacted at this session of the Legislature subsequent to January 1, 1924, and said board shall forthwith publish notice of this direction in the official state paper: Provided, however, that this act shall not It is not error for the trial judge to proapply to minors or persons under legal disabil-pound questions to witnesses as may be necesity." Laws 1923, c. 8, § 1, Special Session (H. J. R. No. 1, Aug. 19).

Our original jurisdiction in mandamus is invoked to require the defendant board to act on plaint.ff's claim. The board moves to quash, and the cause is submitted on the petition and motion.

3. Witnesses 246(1) — Questions may be propounded to witnesses by trial judge.

sary to elicit pertinent facts, in order that the truth may be established.

4. Criminal law 1186(4)-Instruction held not erroneous as in effect charging jury to find defendant guilty.

The instructions examined, and held to have fairly covered the material facts.

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