(193 P.) pasture elsewhere for part of his cattle, and he had to feed his cattle for a longer season than usual. The Jury returned a verdict for the plaintiff in the sum of $240, and answered certain questions: "Q. 2. ** Was the use of the pasture impaired for grazing purposes by reason of any acts or omissions of the defendant? A. 2. Yes. "Q. 3. What acts or omissions of the defendant caused the impairment of the land for grazing purposes and in what way was its use impaired? A. 3. Insufficient cattle guards. "Q. 4. Was any part of said damages based on the failure of the defendant to install and maintain proper cattle guards? A. 4. Yes. "Q. 5. * If so, what part of said damage have you found was the result of such failure of the defendant? A. 5. All. * "Q. 10. Has the plaintiff promptly exercised diligence in preventing or minimizing his damages? A. 10. Yes. Sections 8459 and 8460 of the General Statutes of 1915 provide: "Sec. 8459. When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle guards on such railroad when they enter and when they leave such improved or fenced land. "Sec. 8460. Any railroad company neglecting or refusing to comply with the provisions of sections one and two of this act shall be liable for all damages sustained by any one by reason of such neglect and refusal; and in order for the injured party to recover all damages he has sustained, it shall only be necessary for him to prove such neglect or refusal." [1] The petition was good against a demurrer. Defendant's next contention is that its demurrer to the evidence should have been sustained. The evidence tended to show that the cattle guards were defective wooden contrivances, and that the plaintiff's stock passed over them. The plaintiff's son testified: "Q. 11. If you answer the above question in the affirmative, when and what acts did he do "We could not use the east pasture in June, to prevent or minimize his damages? A. 11. because there was nothing to keep the cattle By keeping his stock in small pasture and feed-in where the road went through north and ing them after the railroad was constructed." The railway company assigns trial errors in overruling its demurrer to the petition, its demurrer to the evidence, and in refusing two instructions which it requested. Noting these in order, the action was not based alone upon breach of the contract to construct an underground crossing, but also upon breach of the defendant's statutory duty. The petition recited all the pertinent facts, and alleged: "Plaintiff further says that the defendant has failed and neglected to construct said underground crossing or cattle guards and has failed to fence its said right of way as provided in said contract and as required by law, though often requested to do so." south. They would walk right out. They had not cattle guards when the road was first constructed. Wooden cattle guards were put in in the fall of 1916, but the cattle walked over fours and setting up endways about three inchthem. The wooden guards were just one by es apart and about four or five feet long, lying lengthwise across the track the same way the rails run. * "Whenever the cattle went across it would break the boards, and sometimes the wind filled ber of times to use the east pasture, but the them up with dirt. We tried a numcattle would get out. * "I took away the stock from section 29, in May of last year, because we could not pasture them on the cast side of the track. We had to feed these cattle in the fall of 1916. We never even had a little pasture on the west side and had to keep stock in the lot and feed them when they first came through with the road. "If we turned them into the east pasture, they never stayed there." The plaintiff testified: "We were prevented from using it close to six months. There was close to 80 acres of pasture east of the railroad. My water and feed lot is in that part of the pasture west of the railroad. * Whether an obligation to build fences might be implied in the contract from the specific agreement of the railway company that "an underground crossing should be put in"-an obviously useless arrangement unless the right of way was fenced on both sides-is not now material. The trial court instructed the jury that the defendant was under no legal obligation to fence its right of way, and that alleged dereliction of the defendant went out the case; and, while the defendant clearly did obligate itself to construct an underground crossing, that phase of the lawsuit went out of the case by the Jury's findings. There remained, in the petition, however, the failure of the defendant "I was prevented from using the east pasto construct the cattle guards-a duty im-ture for six months or more, * * I mean posed by statute on the railway company. the 80-acre tract on the east side of the rail "When that was built, we could use the pasture west of the railroad. They provided barbed wire gates where they filled in between the pastures, but put no cattle guards at that crossing. running the trains that they put up wooden "It was in September when they commenced cattle guards. * * bottom pasture and paid $1 per head per month (Supreme Court of Kansas. Nov. 6, 1920.) because we could not pasture them at home." [2] The defendant cites several cases touching the measure of damages for its failure to make proper cattle guards at the railway entrance to and exit from the pasture. But surely the measure of damages is not restricted to such of the particular items as are approved in those particular cases. The statute says the injured party may recover "all damages," and "it shall only be necessary for him to prove such neglect and refusal." The damages were sufficiently established; and so, too, were the defendant's neglect and refusal. Loss of pasturage was held to be a proper item of damages in Railway Co. v. Billings, 77 Kan. 119, 120, 93 Pac. 590. While it may be correct that the plaintiff might have employed herders to keep the stock from passing over the defective cattle guards, it is certain that the wages of such herders would have been a greater item than the total loss of the pasturage, and one, too, which properly might have been assessed against the defendant. Freeman v. Railway Co., 101 Kan. 516, 521, 167 Pac. 1062. It is, of course, the duty of the injured party to minimize his damages, and that duty, we think, was fully discharged by the plaintiff when he abandoned the use of the pasture east of the railway and confined and fed his live stock in the smaller pasture, and hired other pasturage for part of his cattle. [3] Complaint is made of an instruction relating to plaintiff's duty to observe diligence to prevent his cattle passing over the defective cattle guards, but this subject was adequately and more pertinently covered in those given by the court. Another instruction refused would have declared the law to be that, if the plaintiff suffered damage by reason of the defendant's failure to maintain proper and sufficient cattle guards, the jury should not consider any consequent damage for a period of more than 60 days commencing from the completion of the railway. Presumably this was because of defendant's viewpoint that the statute limited the damage to some such period unless notice and demand for proper cattle guards were made upon the railway company. The statute, however, contains no such provision; and, moreover, we think the evidence showed that such notice and demand were repeatedly made. The court cannot see its way to disturb this judgment, and it is therefore affirmed. All the Justices concurring. —256(5)— 2. Executors and administrators Affidavit for appeal from separate orders allowing claims held sufficient. An affidavit for an appeal from two orders of a probate court allowing separate claims against an estate of a deceased person recited that the "appeal is not taken for the purpose of delay," but did not recite that it was "not peal bond was given, which was approved by taken for the purpose of vexation." One apthe probate court for an appeal from two orders, which were made on the same day. Held, that the district court obtained jurisdiction of both claims, and that the appeal was improperly dismissed as to one of them. Proceeding by Flora Foy and Fred Smith against the estate of Felix Smith, deceased, for the allowance of certain claims. From an order of the probate court allowing the claims of each claimant, M. L. Smith, decedent's widow and heir, appealed to the district court. From a dismissal of the appeal as to the claim of Flora Foy, M. L. Smith again appeals. Reversed. J. K. Mitchell and N. C. Else, both of Osborne, for appellant. H. McCaslin, of Osborne, for appellee. MARSHALL, J. M. L. Smith, widow and heir of Felix Smith, deceased, appeals from a judgment of the district court dismissing her appeal from a judgment of the probate court allowing a claim in favor of Flora Foy against the estate of Felix Smith. He had died in Arkansas intestate, and left surviving him his widow, and Fred Smith and Flora Foy, his children. W. B. Foy, husband of Flora Foy, was appointed administrator of the estate of Felix Smith by the probate court of Osborne county. Fred Smith and Flora Foy each presented to the probate court a claim for allowance against the estate. Both claims were allowed on the same day. From the orders allowing those claims M. L. Smith appealed. She filed but one affidavit and one bond. The affidavit stated "that she intends to appeal from the orders (193 P.) of said probate court, made on February 23, [the settlement of the partnership estate in the 1918, in the matter of the claims of Fred probate court, and to appeal from the decision Smith and Flora Foy, by said probate court," of that court.” and that the "appeal is not taken for the purpose of delay." The bond recited that "The condition of this obligation is such: Whereas, said obligator, Mrs. M. L. Smith, intends to appeal to the district court of Osborne county, Kansas, from certain orders made in the probate court of Osborne county, Kansas, on February 23, 1918, in the matter of the allowance of claims against the estate of Felix Smith, deceased, W. B. Foy, administrator, in favor of one Fred Smith in the sum of $470.75, and in favor of Flora Foy in the sum of $131.00." If a creditor is interested in preserving the assets of an insolvent estate, for the purpose of increasing the amount that he may receive to apply on his claim, an heir is likewise interested in preserving the assets of an estate, for the purpose of increasing the amount of his share on the final distribution. If a creditor has the right to protect the assets in order to secure the payment of his claim, an heir should also have the right to protect the assets in order to preserve the amount of his distributive share. If a creditor has the right to appeal, an heir should have the right to appeal. It necessarily follows that M. L. Smith can appeal from the judgment of the probate court. In the district court Fred Smith and Flora Foy presented separate motions to dismiss the appeals on three grounds: First, that M. [2] 2. The complaints concerning the affiL. Smith had no capacity to appeal; second, that the affidavit for appeal failed to comply davit for an appeal and the appeal bond may with the requirements of the statute, which be considered together. The affidavit for an latter ground was based on the proposition that the affidavit for appeal failed to recite "that the appeal is not taken for the purpose of vexation"; and, third: appeal in the present case is very similar to "That such appeal bond runs to the state of Kansas, and not to this appellee; that one purported bond, and only one, is offered and filed in the said probate court as the basis for the appeal from the decision of the said probate court in two separate and distinct proceedings determined and decided therein, in one of which this appellee is not a party, nor in any wise interested, and the other being this proceeding, and the said purported bond is without surety or security to act; the purported surety thereto, in signing the same, be-ders may have been made therein at different ing ultra vires, void, and ineffective." The bond was amended on leave of court by obtaining additional surety. M. L. Smith requested leave to file an amended bond in the appeal as to Flora Foy; that leave was denied, and the appeal was dismissed as to her claim, but was not dismissed as to the claim of Fred Smith. He does not appeal to this court. times, from which appeals might have been taken, if taken within the time allowed therefor. These appeals were taken within proper time, and the clear intention of M. L. Smith was to appeal from both orders. "Appeals are favored, and mere technical defects or omissions are to be disregarded, as far as possible, without obstructing the course of justice." Haas v. Lees, 18 Kan. 449, Syl. sec. 2. [1] 1. Did M. L. Smith have the right to To the same effect is Smith v. Mescatunga appeal from the judgment of the probate court. She is interested in the estate of Felix Town Co., 36 Kan. 758, 14 Pac. 246; C. K. Smith; after his debts have been paid, she & W. R. Co. v. Town-Site Co., 42 Kan. 97, Burkhalter, will be entitled to one-half of the remainder 104, 21 Pac. 1112; Brown Co. v. of his estate. She is interested in seeing that 75 Kan. 321, 89 Pac. 655; Mercantile Co. v. the funds of the estate are not diminished by Wimer, 97 Kan. 31, 33, 154 Pac. 216. the allowance of claims for which the estate is not liable. If the assets of the es- of appeal bonds, have been permitted, and tate are dissipated, she will be injured. This brings her within the principle underlying the rule declared in Serbach v. Deposit Co., 99 Kan. 29, 32, 160 Pac. 990, 992 (L. R. A. 1917B, 1043), where this court said: "That a creditor of the personal estate, who is dependent upon the personal estate's share of the residue of a partnership estate for the tisfaction of his claim, has such interest in the partnership estate as will entitle him to resist the allowance of a questionable claim in Amendments of affidavits for appeals, and new appeals have been filed in order to perfect attempted appeals, where the statute giving the right to appeal had not been strictly complied with.. McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749, 9 Ann. Cas. 707; Elliott v. Bellevue, 82 Kan. 78, 107 Pac. 794; Mercantile Co. v. Wimer, 97 Kan. 31, 154 Pac. 216. If the court was not satisfied with the appeal bond, it could have directed that a new appeal bond or bonds be filed. The rules that have heretofore been declared control in the present instance. The appeal of M. L. Smith was improperly dismissed as to Flora Foy. It is so held, and the judgment dismissing that appeal is reversed. All the Justices concurring (107 Kan. 700) SOLOMON NAT. BANK v. CONTINENTAL TRUST CO. et al. (No. 22866.) (Supreme Court of Kansas. Nov. 6, 1920.) (Syllabus by the Court.) Evidence 459(2)-Answer that obligation was of trust company, and not of defendant treasurer, held sufficient. In an action against the makers of a promissory note by the payee thereof, signed, "The Salina Trust Company, W. B. Middlekauff, L. A. Mergen, Treas.," an answer by L. A. Mergen which alleges that he signed the note as treasurer of the Salina Trust Company, that he was authorized so to do, that the note was the note of the trust company, that it was not the note of L. A. Mergen, and that the payee had knowledge of such facts and accepted the note as the note of the trust company, and not of L. A. Mergen, states a defense in the action as to him, and a demurrer to the answer is properly overruled. Appeal from District Court, Saline County. Action by the Solomon National Bank against the Continental Trust Company, L. A. Mergen, and others. From a judgment overruling its demurrer to the answer of defendant Mergen, plaintiff appeals. Affirmed. David Ritchie, of Salina, for appellant. Kagey & Smith, of Beloit, for appellee. MARSHALL, J. The plaintiff appeals from a judgment overruling its demurrer to the answer of defendant L. A. Mergen, filed against the petition of the plaintiff in an action by it against the Continental Trust Company, W. B. Middlekauff, and L. A. Mergen to recover on a promissory note as follows: "Six months after date, for value received, we promise to pay to the order of the Solomon National Bank, Solomon, Kansas, three thousand two hundred seventy-two and no/100 dollars, with interest at the rate of 8 per cent. per annum from date at the Solomon National Bank of Solomon, Kansas, Beloit, Kansas. Interest payable annually, and, if not paid annually, each installment thereof, when due, shall be added to and become part of the principal, and both shall thenceforth draw 10 per cent. interest, and it is agreed that all signers and indorsers of this note, either as principal or security, waive demand, protest, notice of protest, and nonpayment. The Salina Trust Company, W. B. Middlekauff, L. A. Mergen, Treas." Mergen's answer alleged that: tion was and is the corporate note of the de"The promissory note sued upon in this acfendant the Continental Trust Company, as the successor of the maker thereof, to wit, the Salina Trust Company, a corporation duly organized and existing under the laws of the state of Kansas; that at the time of the execution and delivery of said promissory note this answering defendant was the treasurer of such corporation, and plaintiff knew, at the time of the taking of said note by it, that this defendant was the treasurer of said corporation, and that this answering defendant had executed and delivered said note for and on behalf of said corporation, and as the obligation of said the Salina Trust Company, and that as such officer he was duly authorized to execute said note as the obligation of said the Salina Trust Company; that plaintiff accepted said note as the note of said corporation, the Salina Trust Company, and at the time of its acceptance knew and had knowledge of the fact that this answering defendant executed the same as and for the note and obligation of said corporation, and not as the personal obligation of this answering defendant; that plaintiff accepted said note and paid the consideration therefor with full knowledge and understanding of such facts and of other facts sufficient to put him upon notice that this defendant was merely executing said note upon behalf of said corporation, the Salina Trust Company; and that this answering defendant was and is not identified or personally liable upon said promissory note as a joint maker or indorser thereof." An examination of section 6547 of the General Statutes of 1915, section 27 of the Negotiable Instruments Law, is necessary. That section reads: "Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability." The name of the corporation mentioned in the answer is signed to the note. It appears that L. A. Mergen signed as treasurer. One and probably the best construction of the signatures is that L. A. Mergen signed as treasurer of the Salina Trust Company, although another construction may be that he signed individually and added the expression "Treas." as descriptive of himself. The statute says that Mergen is not liable if he was duly authorized to sign the note for the trust company and signed in the representative capacity. The answer alleges that he was so authorized and did so sign. That the note is the note of the Salina Trust Company, and not the note of L. A. (193 P.) Mergen personally, is supported by an extended discussion and citation of authorities in Brannan's Negotiable Instruments Law (3d Ed.) pp. 69–78. The section of the Uniform Negotiable Instruments Law now under consideration has been construed and applied in a number of cases from other states, where the obligations of the signers to promissory notes were ambiguous, and where it was held that parol evidence is admissible to show the intention of the parties to a note. Belmont Dairy Co. v. Thrasher, 124 Md. 320, 92 Atl. 766; Phelps v. Weber, 84 N. J. Law, 630, 87 Atl. 469; Megowan v. Peterson, 173 N. Y. 1, 65 N. E. 738; Germania Nat. Bank v. Mariner, 129 Wis. 544, 109 N. W. 574; American Trust Co. v. Canevin, 184 Fed. 657, 107 C. C. A. 543. In Phelps v. Weber, supra, it was held that this section of the Negotiable Instruments Law "does not alter the common-law rule" concerning the admissibility of parol evidence to explain ambiguous signatures on a promissory note. lowed by the words in a brace, "Members Board of Directors Sunflower Lead & Zinc Co.," and it was held that it was error to receive evidence to show that the intention was to sign the note for the corporation, and not for themselves as individuals. The decision in that case was based on section 6590 of the General Statutes of 1915, which reads: "A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity." It was there stated that: "In the present case we have merely the note itself, and it is not signed by the president and secretary of the corporation, nor in the way in which notes are usually executed by corporations. On the contrary, it is signed by a number of individuals who describe themselves as members of the board of directors of a certain corporation. They do not sign as the board, nor even as constituting all the members of the board, which might have consisted of more members than those who signed the note. The In Grocer Co. v. Lackman, 75 Kan. 34, words 'Members Board of Directors Sunflower 35, 88 Pac. 527, 528, this court said: "It has been held in this state that, where it is uncertain from the fact of the note whether it was intended to be the note of the corporation or of the individuals signing, or both, if the litigation arises between the original parties, evidence may be introduced to explain the ambiguity." See, also, Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688, 18 L. R. A. 533, 34 Am. St. Rep. 107; Benham v. Smith, 53 Kan. 495, 36 Pac. 997. In Grocer Co. v. Lackman it was further said: "Upon the question whether a note signed as above is the obligation of the corporation or of the individual signers the cases are so conflicting that it would be useless to attempt to reconcile them." 75 Kan. 36, 88 Pac. 528. If there is any ambiguity in the signature of defendant Mergen, that ambiguity can be explained by oral evidence under the authorities cited. His answer undertakes to and does explain whatever ambiguity there may be in his signature. The defendant cites Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415, where a note which did not disclose any principal was signed by five persons, whose names were fol Lead & Zinc Co.' amount to nothing more than a description of the individuals who executed the instrument." 103 Kan. 268, 173 Pac. 416. There is an apparent contradiction between Lonnon v. Batchman and the prior decisions of this court, but the contradiction is apparent only not real. In the Batchman Case the Sunflower Lead & Zinc Company does not appear to be liable, and it does not appear that any attempt was made to render It liable or to sign the name of the corpora tion to the note. In the present case the name of the corporation is signed to the note, and that of defendant Mergen appears as treasurer. That takes this action out of the rule declared in Lonnon v. Batchman, and puts it under the rule declared in Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527, and the other decisions of this court that support that rule. The defendant Mergen can plead and prove that he is not individually liable on the note, and that the note is the obligation of the Salina Trust Company. This court is compelled to say that the answer to the plaintiff's petition stated a defense, and that the plaintiff's demurrer to the answer was properly overruled. The judgment is affirmed. |