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(230 P.)
"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;
Attached to the mortgage was a purported Rossman and Hood, was filed June 20, 1921;

that the annual report of the executors,
assignment which, however, was not
knowledged by Mr. Hood. The finding by that he (the probate judge) had never made
Christenson of the Hoover note and mortgage assign the mortgage. According to the rec-

an order authorizing the executor to sell or
in their safety deposit box was their first ords of the bank, the Mehrman note was
knowledge of the existence of such instru- paid on July 14, 1921. The facts not only
ments.
Rossman, the remaining executor, sought there was no authorized or valid sale.

fail to disclose a sale, but clearly show that

Το to recover the note and mortgage. The

have made a private sale of the note and controversy, therefore involves the right and

mortgage would have required an order of authority of Hood, as executor, to dispose the probate court. None was made. On the of them without the knowledge or consent other hand, the evidence not only disclosed of his coexecutor, and without an or of

no public sale, but dispels any conclusion the probate court.

that there could have been one. The Chris[1] The defendants contend that from the tensons had no knowledge of the note and time the two executors qualified until Hood's mortgage being in their box until after Hood's death, Hood had full charge of all the per- death, in January, 1922, six months after the sonal property, and full power and authority payment of the Mehrman note, and after to sell and dispose of it without consulting the date of the alleged assignment of the his coexecutor. In support of this conten- Hoover mortgage to them. Any attempted tion, they cite the general rule:

sale to them, then, must have been by Hood,
"That several coadministrators or coexecu- acting as their agent. Hood, as executor of
tors. are, in law, but one person representing the Ellen E. Little estate, was without pow-
the testator, and acts done by one in refer: er to sell the property to himself as agent
ence to the administration of the testator's

of the Christensons. He could not act as
goods are deemed the acts of all, inasmuch as
they have a joint and entire authority over both seller and buyer, either in his personal
the whole property belonging to the estate.” or representative capacity. 6 R. O. L. 592,
11 R. C. L. 405.

13 C. J. 261. While the books of the bank

showed a deposit of $1,000 to the Ellen E. And:

Little estate, on the day the Mehrman note
"That one or two or more executors pos-

was paid, and the alleged assignment was
sess the power of selling and disposing of the executed. the estate actually got no money.
personal assets of the estate as fully as if all
joined in the act of transfer." 18 Cyc. 1332. The entry on the books of the bank was a

paper entry only. What happened is per-
They also argue that the presumption of fectly apparent. Hood was cashier of the
regularity of official acts applies to an execu- bank. He had a key to the safety deposit
tor, and that it must be presumed that box of the Christensons. He was executor
Hood's acts were in all respects regular. 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. What became
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 inval-
quires it, the probate court may order the ex- id. Under all the circumstances the plain-
ecutor or administrator to dispose of said per- tiff, who is the remaining executor of the
sonal property at private sale at not less than Ellen E. Little estate, is entitled to the pos-
three-fourths of its appraised value.”

session of the note and mortgage.
[2] The records of the probate court dis The judgment is affirmed.
closed no order authorizing the sale, trans All the Justices concurring.

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August, 1915, and left a will, giving to his MAY V. BOARD OF COM'RS OF RILEY widow a life use of his property with power COUNTY. (No. 25–274.)

to sell with remainder to his children. The (Supreme Court of Kansas. Nov. 8, 1924.)

widow and the son, Jesse D. May, and two

daughters continued to live on the land which (Syllabus by the Court.)

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 ed. In 1918 proceedings were had before the to district court by one interested.

board of county commissioners for the reOne who has an interest in real property location of a road along the May farm .which and who is not satisfied with the award of dam- took some of the land, and notice was given ages made by the board of county commission- to Jesse D. May, as agent or guardian, of ers in a proceeding to locate a road thereon, the action about to be taken, and the time may appeal to the district court.

when the viewers would meet. He appeared 2. Eminent domain 238(3) - Dismissal of and filed a claim for damages in the sum of

appeal of party for himself and as agent for $1,000, which was signed “Jesse D. May, remaining owners, in proceeding to locate Agent.” The viewers and commissioners alroad, held erroneous.

lowed him $110, making the allowance to Where, in a proceeding for locating a road Jesse D. May, agent, Not being satisfied the notice to the landowner is addressed to Jesse D. May, agent, and he meets the views with the allowance, an appeal was taken, the ers and files a claim for damages which is sign- necessary papers and bond being signed ed Jesse D. May, agent, and an allowance is Jesse D. May. At the hearing of the appeal made to him as Jesse D. May, agent, and he in the district court, there was evidence that is not satisfied with the award made and ap- Jesse D. May bad an undivided one-third peals to the district court, signing the appeal interest in the land in addition to such inbond Jesse D. May, and, on the hearing in the terest that he might have under his father's district court, it is shown that Jesse D. May will, and that in all that he did in this mathad an undivided one-third interest in the real property, and that he represented the owners

ter he was acting for and on behalf, not of the other interests as their agent, and that only of himself, but of his mother and any the appeal was taken for and on behalf of him- other members of the family who had any self and such others, it is error to dismiss the interest in it. There was also evidence as to appeal because it is not prosecuted in the name the amount of damages. At the close of apof the real party in interest.

pellant's evidence, the court sustained a de

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

cuted by the real parties in interest, and this Proceeding by Jesse D. May, individually is the judgment appealed from. and as agent of the heirs of Jesse M. May, [1] The statute provides: 'deceased, against the Board of County Com “Any person feeling himself aggrieved by the missioners of the County of Riley. From an award of damages made by the board of counorder of the district court sustaining a de- ty commissioners may appeal from the decimurrer to the evidence, and dismissing an sions of said coard of county commissioners appeal from an award of damages of the to the district court.” R. S. 68-107. Board of County Commissioners in proceeding locating a road, plaintiff appeals.

So, even if it be argued that the appeal is

Reversed, with directions.

taken by Jesse D. May personally, it should

not have been dismissed because not proseCharles Ilughes, of Manhattan, for appel- cuted by the real party in interest, for it is lant.

clearly shown, and at least tacitly admitted, A. M. Johnston, Co. Atty., of Manhattan, that he had a one-third interest in the real for appellee.

property.

[2] But it seems clear from the entire proHARVEY, J. This is an appeal from an ceedings and the evidence adduced, that the order sustaining a demurrer to the evidence, appeal was taken in the same capacity in and dismissing an appeal from an award of which he presented the claim,' in the same damages of the board of county commission- capacity in which he and others interested in ers in the proceedings locating a road. the proceedings were notified of the laying Briefly stated the facts disclosed by the rec-out of the road. Perhaps the proceedings ord are as follows:

would have appeared more uniform had the At some time prior to 1915, James M. May word “agent" appeared on the appeal bond, bought real property near Manhattan. At but since the evidence showed the capacity the time bis son, Jesse D. May, contributed in which the appeal was taken, that is not one-third the purchase price with an under- very material. The damages, if any, to the standing that he had one-third interest in land was the thing to be ascertained. All the land, but the title was taken in the the county was interested in was knowing name of the father. James M. May died in that whatever sum it paid would relieve it

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

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(230 P.) from further claims of damages. Brown , tory to the defendant; that the plaintiff then County V. Burkhalter, 75 Kan. 321, 89 P. authorized Martin & Son to procure other 655; Nicholson v. Nicholson, 83 Kan. 223, 109 land to be exchanged for the land of the de P. 1086.

fendant; that other land was procured; The judgment will be reversed, with direc- that an exchange was made; and that the tions to overrule the demurrer to the evi- commission earned by the plaintiff had not dence.

been paid.
All the Justices concurring, except JOHNS It is not pointed out what other allegation
TON, C. J., who did not sit.

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 al-
FREDERICK V. NEIBERLINE.

leged. It follows that the petition stated a (No. 25469.)

cause of action, and that the demurrer to

the petition was properly overruled. (Supreme Court of Kansas. Nov. 8, 1924.)

2. The order overruling the demurrer of (Syllabus by the Court.)

the defendant to the evidence of the plain

tiff, and the sufficiency of the evidence to sus1. Brokers 82(1)--Petition held to state tain the verdict in favor of the plaintiff, precause of action for broker's commission. The petition stated a cause of action for of the evidence is necessary.

sents a different question. An examination a real estate agent's commission on the exchange of land.

The plaintiff on his direct examination tes

tified: 2. Appeal and error C 1001(1) Jury's de

"That Nesberline and Martin made arrangetermination of procuring cause of exchange of land supported by evidence conclusive on

ments to go back another day and inspect othappeal.

er land, and an arrangement was made that

Martin was to go on and effect a deal if be In an action by a real estate agent to re- could. providing he could find land that would cover commission for the exchange of land, suit Neiberline; that later a deal was made bewhere the principal question of the trial was tween Mr. Martin and Mr. Neiberline for an who was the procuring cause of the exchange,

exchange of lands." the determination of that question by the jury from the evidence, when properly instructed, On his cross-examination he testified: and if supported by evidence, is conclusive on

"That Mr. Martin is a real estate man living appeal to the Supreme Court.

at Sterling, Kan.; that appellee took Mr. Mar

tin and went up to inspect the farm of appelAppeal from District Court, Barton Coun- lant, and appellee and appellant went to ty; C. R. Douglass, Judge.

Pawnee county; that they looked over some Action by Stewart T. Frederick against listed for sale; that no deal was made, and

land in Pawnee county that Mr. Martin had Ben Neiberline. From a judgment for plain- parties all returned to Great Bend, and appeltiff, defendant appeals. Affirmed.

lee took appellant back home; that appellee R. C. Russell, of Great Bend, for appel. never had any conversation with appellant from lant.

that time until after the appellant finally made D. A. Banta, of Great Bend, for appellee. that on the trip to Pawnee county appellee and

& trade for some other land with Mr. Martin;

Mr. Martin showed the appellant two half secMARSHALL, J. The defendant appeals tions of land, but that neither of those deals from a judgment against him for real es went through; that appellee had no lands tate agent's commission on the exchange of listed in Pawnee county, and that the lands real property.

A demurrer to the petition shown to appellant were lands listed with Mr. was overruled, as was also a demurrer to the Mr. Martin had the land listed for sale that

Martin; that appellee did not know whether evidence of the plaintiff. The defendant appellant finally obtained and that he [appelargues that both demurrers should have been lant] had nothing whatever to do with the listsustained, and that there was not sufficient ing of any Pawnee county land. evidence to support the verdict of the jury. "Q. Now, what, if anything, did you have to

[1] 1. The petition alleged that the plain- do with the consummation or putting through tiff was engaged in the real estate business with the deal that Neiberline finally accepted? at Clatiin; that the defendant owned cer

A. After I showed Mr. Neiberline's place I tain land; that he authorized plaintiff to paid no more attention to it, because that was

Mr. Martin's business to show the other." exchange the land of the former for other land; that the plaintiff negotiated with Mar S. M. Martin, one of the real estate agents tin & Son, real estate agents at Sterling, ask- at Sterling, testified as follows: ing for land to lo exchanged; that an at

“That he lived in Sterling, Kan., and was in tempt to exchange the land of the defendant the real estate business about 12 years, acfor land in Pawnee county 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-itwo weeks later he went with appellee to ap

was

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

pellant's farm, and all the parties then drove , lant's home in Barton county, and that he had to Pawnee county and looked at two half sec never seen Mr. Martin before that time, and tions of land that he [Martin] had listed for that he was introduced to Mr. Martin by the sale and exchange at that time; that after appellee; that Martin looked his farm over, looking over the land they failed to complete and that arrangements were made to go to a sale on either and came back to Great Bend Pawnee county; that he and appellee and Marand separated; in about 13 or 14 days he call- | tin went to Pawnee county and looked over two ed Neiberline and told him that he now had a pieces of land; that neither of them suited half section listed and thought they might make him; that they all came back to Great Bend, an exchange, and made arrangements with him at which time he told Mr. Martin that he would to meet him in Great Bend to go and look at give him two or three weeks to find some land the farm, and after looking at the farm made that was suitable, and that he would trade for the exchange; that when the deal was com some land in Pawnee county; that he rode pleted appellant asked him if he owed him a home from Great Bend with Mr. Frederick; commission, and he said 'No'; that the usual that he never recognized any liability to appelcommission was 5 per cent. on the first $1,000 lee for a commission; that he asked Mr. Marand 242 per cent. thereafter; that the rea- tin whether or not he owed him anything besonable value of appellant's farm was $12,400, cause he dealt with him, and Mr. Martin told and that he had never known appellant until he him he did not owe him anything; that he was introduced to him by appellee. *" valued his Barton county land at $14,000."

On cross-examination, Martin testified as The evidence established that the plaintiff follows:

authorized Martin & Son to find land to be “That while he and appellant were together exchanged for the land of the defendant; appellant said to him that he would give him that the first effort of Martin & Son to bring two or three weeks to find him a farm in about an exchange of land failed; that the Pawnee county for exchange for his farm; that defendant gave them further time in which the appellee had nothing to do with the trade to find other land to be offered in exchange; and exchange of appellant's farm for the land that other land was found and offered; and in Pawnee county; that he [Martin) made the deal himself some three weeks later."

that an exchange was made.

[2] The controlling question in the case is : The defendant on his direct examination was the plaintiff the procuring cause of the testified:

exchange of land? That is a question of “That he had talked to him (plaintiff] about fact, not a question of law. It is a questrading his [defendant's] farm in Barton coun- tion that must be determined from the evity for some land near Macksville; that later dence. Ordinarily, it is not a fact that can appellee phoned to him and asked whether or be established by direct testimony, but is an not he would trade for some land south of inference of fact to be drawn from other Larned; that he went out to see the land in facts proved. From the evidence, the jury, Pawnee county with his son-in-law and Mr. Martin; that they looked at two pieces of land under proper instructions on that question, and returned to Great Bend and then went concluded that the plaintiff was the procurhome; he had no further conversation with ing cause of the exchange of land. That conappellee about any further deals and had nev- clusions was approved by the court, was er had any further conversation with the appel- | justified by the evidence, and is binding on lee about any further deals until about 6 or this court. 7 weeks after the trading had been made; that

That brings this case within the rule often about ten days after he had made his trip to declared in this court that “a real estate Pawnee county, Mr. Martin called him up and asked him whether or not he was going to agent has earned his commission when he make a deal, and he told him, 'No,' and that procures a purchaser ready, willing, and able appellant asked him whether or not he had to buy upon terms which the owner has acanything he could show him and he said, 'No,' cepted or agreed to accept." Wacker v. but he would look around and see what he Hester, 102 Kan. 710, 171 P. 1151. could do, and later he called and asked appel

The defendant cites Latshaw v. Moore, lant to come to Great Bend about a week or 53 Kan. 234, 36 P. 342. The court there ten days later; that he went with Martin to

said: Pawnee county and exchanged his Barton county property for Pawnee county land; that he "Real estate brokers employed to procure a did not trade for any land that Mr. Frederick, purchaser or a trade for property for a specithe appellee, had shown him, and that it was fied commission are not entitled to recover the not land that Mr. Martin owned personally." commission agreed upon, unless they were the

primary, proximate, and procuring cause of the On cross-examination, the defendant tes- sale or exchange which was made.” tified: “That he had known appellee about a year; from the rule that a real estate agent who is

The rule there declared does not differ that he did not know what busines

he was engaged in, that he told him at Macksville the proximate and procuring cause of a sale that he wou!! like to trade for some land near is entitled to his commission. Macksville; that two or three months after The judgment is affirmed. that appellee and Mr. Martin came to appel All the Justices concuring.

(230 P.)

It seems clear that plaintiff's cause must WADDELL V. KANSAS SOLDIERS' COM- fail. He was not a minor. He was under

PENSATION BOARD. (No. 25975.) no legal disability. To suit his own inclina(Supreme Court of Kansas. Nov. 8, 1924.)

tion he tarried in France. He did not keep

in touch with affairs in his home state. (Syllabus by the Court.)

That he was shipwrecked was unfortunate; Bounties om l-Order refusing World War vet. likewise that he was ill for some time in oran's application for compensation, filed after the East. But these untoward occurrences January 1, 1924, held proper.

only covered a relatively small part of the The facts recited and relied on to excuse time provided for the presentation of claims. the presentation of a claim for compensation The state cannot be expected to maintain until after the statutory limit of time for re permanently the necessarily expensive esceiving and auditing of such claims examined, tablishment of a compensation board to auand held, that the compensation board properly dit and allow claims which are unreasonably refused to receive and audit the claim.

delayed in their presentation. For all prac

tical purposes, so far as Kansas was conOriginal mandamus by Everett V. Waddell cerned, the World War ended by the middle against the Kansas Soldiers' Compensation of the year 1919, when the mass of Kansas Board, to compel defendants to act on plain- soldiers got home, or could have gotten tiff's application for compensation. On mo- home. R. S. 73–102. The setting of the tion to quash. Motion sustained, and action date, January 1, 1924, as the limit when dismissed.

compensation claims would be received and R. M. Anderson of Beloit, for plaintiff. audited was reasonable to the point of

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.

knowing of the adoption and enactment of

compensation for Kansas soldiers in plenty DAWSON, J. The plaintiff, a citizen and of time to take advantage of its terms. resident of Kansas, enlisted in the United

The motion to quash is sustained, and the

action is dismissed. States army in 1913. His term of enlistment

All the Justices concurring. 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 ship

STATE v. URBAN. (No. 25780.) wrecked, rescued, and landed at Baltimore, (Supreme Court of Kansas. Nov. 8, 1924.) where he secured employment. During the winter of 1923-24 he learned that the state

(Syllabus by the Court.) of Kansas had enacted compensation for 1. Criminal law Om628(3)-Permitting indorseKansas soldiers, but he was then seriously ment of witnesses' names on information after ill, and unable to learn the requirements

case called for trial held not abuse of dis.

cretion. for securing it. In May, 1924, he returned to Kansas, at which time he made applica

In a prosecution for grand larceny, the intion for compensation.

dorsement of names of witnesses on an inforThe defendant board declined to consider, not to have been prejudicial.

mation after the case is called for trial is held allow, or reject his claim for compensation because of the statute, which in part reads: 2. Larceny Om32(1)-Title to property may

be laid, in information, either in owner or "73-146. Time for Presentation of Claims.

person from whom property stolen. That the state compensation board is directed not to receive any claim or claims, under the

In an information charging larceny, the title provisions of the compensation acts heretofore to the property may be laid either in the owner enacted and that may be enacted at this session or the person from whom the property wag

stolen. of the Legislature subsequent to January 1, 1924, and said board shall forth with publish 3. Witnesses Em 246(1) - Questions may bo notice of this direction in the official state pa propounded to witnesses by trial judge. per: 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

sary to elicit pertinent facts, in order that the (H. J. R. No. 1, Aug. 19).

truth may be established. Our original jurisdiction in mandamus is 4. Criminal law Em 1 186(4)—Instruction held invoked to roquire the defendant board to not erroneous as in effect charging jury to act on plaini.ff's claim. The board moves find defendant guilty. to quash, and the cause is submitted on the The instructions examined, and held to have petition and motion.

fairly covered the material facts.

For otber cases see same topic and KEY-NUMBER in all Key-Numbered Digasts and Indexea

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