GREENE v. BOARD OF EDUCATION OF CITY AND COUNTY OF SAN FRANCISCO et al. (GINN et al., Interveners; S. F. 2382.) (Supreme Court of California. Jan. 16, 1901.) In bank. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by J. C. Greene against the board of education of the city and county of San Francisco and others; Ginn & Co. and the II. S. Crocker Company intervening. From a judgment in favor of plaintiff, defendants appeal. Reversed. Sheffield S. Sanborn (Wm. B. Bosley, of counsel), for appellants. John H. Dickinson, for respondent J. C. Greene. H. H. Hindry, for respondent H. S. Crocker Co. Franklin K. Lane, for respondent board of education.

PER CURIAM. This case involves the same questions as in Greene v. Board (S. F. No. 2,381) 63 Pac. 161. Upon the authority of that case, and for the reasons therein given, the judgment and order herein appealed from are reversed.

In re KRUGER'S ESTATE. (S. F. 758.) (Supreme Court of California. Dec. 11, 1900.) Department 2. Appeal from superior court, Nevada county: F. T. Nilon, Judge. On the settlement of the account of the executors of the estate of W. H. Kruger, deceased, the compensation of the attorney for the estate was fixed, and from the order fixing the amount Ida Gardner and another appeal. Reversed. Fred T. Searls and Geo. T. Wright, for appellants. P. F. Simmonds, for respondent.

PER CURIAM. For the reasons stated in Re Kruger's Estate (Sac. 757; this day decided) 63 Pac. 31, the decree appealed from is reversed.

PATTON V. CARPENTER. (L. A. 741.) (Supreme Court of California. Dec. 19, 1900.) Department 1. Appeal from superior court, San Diego county; J. W. Hughes, Judge. Action by J. A. Patton against H. N. Carpenter. From a judgment for plaintiff, defendant appeals. Affirmed. Collier & Collier and D. L. Murdock, for appellant. J. Z. Tucker, for respondent.

PER CURIAM. Action of claim and delivery brought in the justice's court. Defendant by his answer showing that the title to real estate was involved in the litigation, the cause was certified to the superior court. The judgment went for plaintiff, and this appeal is taken. The subject-matter of the litigation consists of a house, and plaintiff's title to the house depends upon his title to the land upon which it rested. During plaintiff's absence defendant removed the house from this particular tract of land. Upon the trial the defendant offered no testimony, and, as far as the evidence shows, was a mere trespasser in removing the building. The court found the plaintiff to be the owner of the property in litigation, and we are entirely satisfied with that finding. It is not necessary to recite the evidence in detail. It appears that the building was located upon land which the plaintiff claimed, upon which he was being taxed, and which he had improved in various ways by fencing, clearing, etc. In addition to this evidence the defendant concedes plaintiff's right of recovery if the evidence justifies the conclusion "that pueblo lot No. 1,196, according to the Poole map, is identical with the same lot according to the Pascoe map." After an examination of the record we deem the evidence substantially discloses that fact. For the foregoing reasons, the judgment and order are affirmed.

WARREN et al. v. FERGUSON. (S. F. 2.404.) (Supreme Court of California. Jan. 10. 1901.) Department 1. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action on a street assessment by one Warren and others against one Ferguson. From a judgment in favor of the plaintiffs, the defendant appeals. Reversed. Stafford & Stafford, for appellant. J. C. Bates, for respondents.

PER CURIAM. Action upon a street assessment. The question involved upon this appeal -the sufficiency of the engineer's certificatewas presented in Obermeyer v. Patterson (Cal.) 62 Pac. 926, and it was there held that the court erred in admitting the certificate in evidence. Under the authority in that case the court erred herein in admitting the engineer's certificate in evidence, and in rendering judgment in favor of the plaintiffs. See, also, Warren v. Ferguson, 108 Cal. 535, 41 Pac. 417. The judgment and order are reversed.

COVERDALE v. WESTCHESTER FIRE INS. CO. (Supreme Court of Kansas. Feb. 9, 1901.) Error from court of appeals, Southern department, Central division. Action by W. T. Coverdale against the Westchester Fire Insurance Company. Judgment for plaintiff was reversed by the court of appeals (58 Pac. 1029), and plaintiff brings error. Affirmed. C. E. Elliott and H. L. Woods, for plaintiff in error. E. F. Ware, Jas. Lawrence, and Gleed, Ware & Gleed, for defendant in error.

PER CURIAM. An examination of the entire record in this case leads us to the conclusion reached by the court of appeals. We would not be justified in extending our inquiry further than was done by that court, nor do we think that further discussion of the points involved is necessary. For the reasons given by the court of appeals, its judgment, reversing that of the district court, will be affirmed.

HARDEN V METZ. (Supreme Court of Kansas. Feb. 9, 1901.) Error from court of appeals, Southern department, Eastern division. Action by J. E. Hardeu against Frank Metz. Judgment for defendant was affirmed by the court of appeals (58 Pac. 281), and plaintiff brings error. Affirmed. Ergenbright & Banks and F. J. Fritch, for plaintiff in error. A. B. Clark and Geo. W. Clark, for defendant in er

ror.

PER CURIAM. This case involves questions relative to the dedication of land for streets and alleys in a town. the acceptance of the dedication by the public, and an estoppel by deed. All of these questions arise upon the evidence, but the record fails to show that it contains all of such evidence. In fact, the jury trying the case made a finding relative to the matter of estoppel entirely inconsistent with the idea that the record does contain all the evidence, and for that especial reason, apart from the general and oft-repeated rule, we cannot examine the claims of error without something equivalent to an affirmative statement that all the evidence has been preserved. The case is affirmed.

STATE v. JORDAN. (Supreme Court of Kansas. Feb. 9, 1901.) Appeal from district court, Shawnee county; Z. T. Hazen, Judge. Pie Jordan was convicted of larceny, and brings error. Affirmed. S. S. Urmy, for appellant. A. A. Godard, Atty. Gen., and A. P. Jetmore, Co. Atty., for the State.

PER CURIAM. Pie Jordan was convicted of stealing a fancy velvet quilt of the alleged value of $50. He complains that there was no sufficient evidence to prove the value of the

quilt to be over $20. Two witnesses, who were acquainted with the value of the material used in making the quilt and of the work done upon it, testified that it was worth from $40 to $50. It is true they did not know the market value of the quilt; but some articles, like this one, have no market value, and hence no such test can be applied. The testimony as to value was sufficient. For the same reason, the objections to the testimony of the witnesses are without merit. The judgment will be affirmed.

DEAN et al. v. FIRST NAT. BANK OF HAYS CITY. (Court of Appeals of Kansas, Northern Department, W. D. July 13, 1900.) Error from district court, Ellis county; Lee Monroe, Judge. Action by Catherine M. Dean and John A. Dean against the First National Bank of Hays City. Judgment for defendant. Plaintiffs bring error. Reversed. A. D. Gilkeson, for plaintiffs in error. David Rathbone and A. J. Bryant, for defendant in error.

PER CURIAM. The contention of the plaintiffs in error, who were the plaintiffs in the trial court, is clearly stated in the briefs of plaintiffs in error as follows: "The plaintiffs made certain notes in favor of the defendant. It, being a national bank, charged and reserved in each and every one of them a greater rate of interest than is allowed by the laws of the state of Kansas. For this reason each and every note lost or forfeited its interest-bearing quality, and was only valid against the plaintiffs for the amount loaned to or obtained by them. These different notes at last all became merged in one note, which was largely in excess of the amount actually and legally due. They made payments from time to time upon the principal of money, and at a certain time there was certain personal property taken and applied upon the indebtedness. By reason by these matters, the indebtedness is more than paid, and the defendant is indebted to the plaintiff for the excess, being a sum certain; and for this amount we ask for judgment." Upon the trial, after the plaintiff had rested, the court sustained a motion to strike out certain evidence, and also a demurrer to the evidence, and thereupon rendered judgment for the defendant. It is first contended by the defendant in error that the record does not purport to contain all the evidence. With this we We cannot agree. think a fair reading of the record will disclose that all the evidence is therein. While we do not think that the amended petition in this case is a model, yet we do think it was sufficient to serve as a basis for a recovery. Some parts of the motion of the defendant to amend it should have been sustained; but, in the absence of this, there was sufficient in the pleadings and the evidence to go to the jury. The judgment of the trial court is reversed, and a new trial directed.

DOUGLASS v. BRANDON et al. (Court of Appeals of Kansas, Northern Department, E. D. Jan. 1, 1901.) Error from district court, Leavenworth county; Louis A. Myers, Judge. Action by John C. Douglass against George Brandon and others. Judgment for defendants, and plaintiff brings error. Dismissed. John C. Douglass, for plaintiff in error. J. H. Gilpatrick and John Atwood, for defendants in error. PER CURIAM. This action was brought by John C. Douglass, on the 6th day of August, 1887, in the district court of Leavenworth county, against George Brandon, John Brandon, Louisa Williams, Fred Lange, Henry Lange, and David Atchison, in ejectment, for the recovery of real estate in the city of Leavenworth and for rents and profits. A summons was issued and served on all of the defendants. vid Atchison, by his attorney, J. H. Gilpatrick, answered. John Brandon and George Bran

Da

don, by their attorney, Lucien Baker, answered. The defendants Louisa Williams, Fred Lange, and Henry Lange made default. The plaintiff replied to the various answers. A trial was had and judgment entered, and upon motion a new trial granted. Another trial was had on December 10, 11, and 12, 1894. The plaintiff appeared in person and by Wheat, his attorney; George Brandon and John Brandon, by Lucien Baker, their attorney; and David Atchison appeared in person and by J. H. Gilpatrick, his attorney. The jury returned a verdict for the defendants, together with special findings of fact. The plaintiff filed a motion for a new trial, which was argued on October 19, 1895, and taken under advisement. The motion for a new trial was on the 2d day of October, 1897, overruled, and the plaintiff allowed 90 days to make and serve a case-made, which time was extended until March 20, 1898. The case-made was served on the defendant Atchison on the 18th day of March, and on William C. Hook and John H. Atwood, attorneys, on March 21, 1898. However, it does not appear that the last-named attorneys at any time entered an appearance for any of the defendants. The plaintiff gave notice that the case-made would be presented for settlement on Saturday, the 1st day of October, 1898, at the court house in the city of Leavenworth. This notice was served upon George and John Brandon by the delivery of a copy to Baker, Hook & Atwood, and upon David Atchison in person. The casemade was settled and signed by the trial judge on October 1, 1898. The petition in error, together with case-made, was filed in this court on October 3d; the 2d being Sunday. The summons in error was issued October 4th, and served on the 10th day of October, 1898. George Brandon, defendant, died on 2d day of June, 1898, and there has been no proceeding to revive the action against his heirs or legal representatives. The action was, on July 11, 1900, dismissed by plaintiff in error as to Brandon, deceased, and his heirs and legal representatives. The judgment rendered in this cause was in favor of all the defendants, and against the plaintiff, for costs. The defendants in the trial court are all necessary parties to this proceeding in error. The case-made was not served upon Louisa Williams, Fred Lange, or Henry Lange. The attempted service of the case-made upon John Brandon and George Brandon was made upon William C. Hook and John H. Atwood, attorneys; but there is nothing in the record to show that these parties were attorneys for the defendants, or either of them. Besides, the service was made on the 21st day of March, 1898, and not within the time allowed therefor. The plaintiff in error dismissed his action as to George Brandon, deceased, and his heirs and legal representatives. The defendants are all necessary parties to a review of the alleged errors in the proceedings of the trial court. The petition in error must be, therefore, dismissed.

FALLETTI v. MARSHALL. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 17, 1900.) Error from district court, Osage county; William Thomson, Judge. Action by Samuel Marshall against Mathew Falletti. Judgment for plaintiff. Defendant brings error. Affirmed. A. A. Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error. C. S. Martin and J. H. Stavely, for defendant in er

ror.

PER CURIAM. The questions presented in this case are substantially the same as those considered by us in the case of Brentnall v. Marshall (just decided by this court) 63 Pac. 93. One or two questions are discussed in the brief of counsel in this case that were not considered in the former case; but, after a careful examination of the record, we are satisfied that the district court committed no error which will

require a reversal of the case, and the judgment of the court below will therefore be affirmed.

FIRST NAT. BANK OF KANSAS CITY, MO., v. SCHRENKLER. (Court of Appeals of Kansas, Northern Department, W. D. Sept. 25, 1900.) Error from district court, Ellis county; Lee Monroe, Judge. Action by the First National Bank of Kansas City, Mo., against William Schrenkler. Judgment for defendant, and plaintiff brings error. Affirmed. David Rathbone, for plaintiff in error. Wm. B. Sutton, for defendant in error.

PER CURIAM. This was an action brought by the First National Bank of Kansas City, Mo., against William Schrenkler, for the recovery of the amount alleged to be due upon a certain check negotiated by the defendant. It appears that the defendant drew a check upon the First National Bank of Russell, Kan., for the sum of $1,500, and delivered the same to the Traders' Grain Company at Kansas City. Thereafter the grain company delivered the same to plaintiff in error. The defendant filed an answer, and afterwards, by permission of the court, filed an amended answer, to which the plaintiff replied. A trial was had and judgment rendered for defendant. The plaintiff, as plaintiff in error, presents the case to this court for review. There are numerous assignments of error, but we deem it unnecessary to examine them. The petition is fatally defective. It does not state a cause of action in favor of the plaintiff and against the defendant. It necessarily follows that the trial court properly rendered judgment for defendant, and against the plaintiff, for costs. The judgment must be affirmed.

HALE v. McCONNELL et al. (Court of Appeals of Kansas, Northern Department, E. D. Jan. 1, 1901.) Error from district court, Jackson county; Marshall Gephart, Judge. Action by William D. Hale, receiver of the American Savings & Loan Association against Thomas C. McConnell and Nellie P. McConnell. From the judgment, plaintiff brings error. Affirmed. John H. Crain, for plaintiff in error. Hayden & Hayden, for defendants in error.

PER CURIAM. It is said by the plaintiff in error in his brief that "the determination of this case depends entirely upon whether or not the defendant in error is entitled to be credited upon his mortgage indebtedness with such sums as he has paid as dues upon his stock in the building association." It was held by the majority of this court in Association v. Kidder, 58 Pac. 798, that under the facts of that case all the payments must be applied to the payment of the mortgage indebtedness, with interest. That case was different from this. It is also contended that the sufficiency of the petition in this case was decided in the case of Hale v. Hoagland, 61 Pac. 314. Neither of the cases cited is decisive of this case. The courts of this state should not permit a nonresident company, or, in fact, any company, to first collect the amount of the loan from the borrower, and trust to the courts of another state to refund to him the amount due him upon his stock, as the latter would often result in the forfeiture of the property offered as security, when, in fact, little or nothing was owed thereon by the owner. In the case at bar there was no statement of facts from which the necessary conclusions could be made to justify a foreclosure, and for that reason the demurrer to the petition was properly sustained. The judgment of the court below is affirmed.

HOKE v. ZENT et al. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Error from district court, Reno

county. Action by William H. Zent and another against James S. Hoke. From a judgment of the district court in favor of plaintiffs on appeal from a justice, and from an order denying a new trial, defendant appeals. Affirmed.

PER CURIAM. It is conceded by counsel for defendant in error that the statement of facts set forth in the brief of the plaintiff in error is a correct statement of the issues made by the pleadings. The statement is as follows: "The defendants in error commenced an action before a justice of the peace in Reno county, Kan., against plaintiff in error, for $279, claiming that on the 26th day of April, 1898. plaintiff in error placed in the pasture of defendants in error 205 head of cattle, under an agreement with the defendants in error that he would pay them at the rate of 25 cents per head per month, provided that said cattle remained during the entire pasturing season, but 30 cents per head per month if he took them out before the end of the pasturing season; that said cattle were kept in the pasture of defendants in error until the 2d day of September, 1898, and then taken out; that the pasturing season was not then closed; and that the plaintiff in error was indebted to them for said pasture for said cattle at the rate of 30 cents per month. To this action the plaintiff in error filed his answer, in which he admitted placing the 205 head of cattle in the pasture of defendants in error, and that he kept them in there the length of time claimed by defendants in error, but claiming that the contract was that he was only to pay the defendants in error 25 cents per head per month, and that defendants in error were not to pasture to exceed 400 cattle on 2,400 acres of pasture, which amount of good pasture defendants in error represented they had, and claiming that said defendants in error misrepresented the amount of their pasture land; that in fact they had only 1,900 of pasture land, and that they had pastured upon this land over 600 head of cattle; that the 1,900 acres of land was wholly insufficient for so large a number of cattle, and that by reason of that fact the cattle of plaintiff in error were not properly cared for and pastured; that said pasture land had been so closely fed and eaten that the plaintiff in error was compelled to remove his cattle therefrom, which he did as soon as he learned the condition of said pasture; and that by reason of the facts aforesaid, and of the failure of the defendants in error to furnish plaintiff with pasture as agreed, his cattle were damaged in the sum of $1,200,-and praying the court to offset so much of said amount as was necessary to offset the claim of defendant in error for the price of said pasture. On the trial of the case before the justice of the peace, judgment was rendered in favor of defendants in error. Plaintiff in error appealed to the district court, where the case was again tried, and again resulted in a judgment for defendants in error in the sum of $224.45, and for the further sum of $188.75 costs. A motion for a new trial was properly filed by the plaintiff in error and overruled by the district court, and this proceeding is brought for the purpose of reversing the judgment of the lower court." It is contended that the district court erred in giving and in refusing to give certain instructions. The court instructed the jury as follows: "(1) The plaintiffs in their bill of particulars claim that on the 26th day of April, 1898, the defendant placed in pasture with plaintiff 205 head of steers; and they agreed with defendant to pasture said steers during the entire season of 1898 at 25 cents per head per month during the time said steers were in plaintiffs' pasture, and further agreed that, if at any time said defendant was dissatisfied with the pasture, he should remove said steers from the pasture, and, if the season of 1898 was not then closed, he should pay 30 cents per head per month during the time said steers were in plaintiffs'

pasture. The plaintiffs claim that under this agreement 205 head of steers were placed in their pasture the 22d day of April, 1898, and that they are entitled to recover for the pasture of these 205 head of cattle at the rate of 30 cents per head per month for the time between the 26th day of April and the 2d day of September, 1898. They also claim that 3 other head of cattle were put in the pasture for 3 months, and claim for the pasture of these steers at 30 cents per head per month for the 3 months. The defendant, in his bill of particulars and cross petition, denies each of the allegations alleged in plaintiffs' bill of particulars, except as he afterwards admits. He admits that he had 205 head of cattle in plaintiffs' pasture from the 26th day of April, 1898, to the 2d day of September, 1898, and also that he had 3 other head of cattle from May 15 to July 1, 1898. The defendant alleges, in substance, that these cattle were furnished for pasturage under a verbal agreement with the plaintiffs, in substance, that the plaintiffs should furnish the defendant good and sufficient pasture and water during the season of 1898 for the said stock, and that he wholly relied upon plaintiffs to furnish proper pasture for the cattle, and did not know the condition of the pasture for some time prior to the 2d day of September, 1898. He also alleges that it was further agreed between the defendant and plaintiffs that the plaintiffs should furnish 2.400 acres of good pasturage, and would not place on said pasture more than 450 head of cattle, for the season of 1898. He also alleges that, notwithstanding the terms of the contract, the plaintiffs failed to furnish but 1,900 acres, and placed therein, contrary to said agreement, more than 600 head, and there was not sufficient amount of grass in said pasture for such an amount of cattle; and the plaintiffs failed and neglected to furnish sufficient pasture for the cattle of the defendant, and while they were in plaintiffs' pasture the defendant relied upon the representations of plaintiffs, and left the said cattle in the possession of plaintiffs until the 2d day of September, 1898, without knowing the condition of said pasture; and by reason of the failure of the plaintiffs to furnish pasture and grass for said cattle, as plaintiffs agreed to do, the defendant was compelled to remove his cattle to another pasture, and was damaged thereby in the sum of $1,200. He alleges these damages consisted in the loss of growth of the cattle during the last three months that they were in plaintiffs' pasture, amounting to 10,000 pounds, of the value of 4 cents per pound, and also that there was a loss of growth of the cattle, by reason of the plaintiffs' failure to furnish grass and water agreed upon, on account of having to remove the cattle to another pasture, in the further amount of 5,000 pounds of growth, of the value of 4 cents per pound; and these damages he reserves from this amount, all except the amount of $300, which he seeks to offset in this case, and asks that his damages, not exceeding the amount of $300, be set off against any amount you may find to be due to the plaintiffs for the pasturing of the cattle; and, if such damages exceed the amount due to plaintiffs for pasturing the cattle, he asks judgment against the plaintiffs for the excess. (2) The burden of proof in this case is upon the plaintiffs to prove by a preponderance of the evidence the alleged contract for the payment of 30 cents per head, instead of for 25 cents per head, if the cattle should be removed before the end of the season by the defendant. There is no dispute between the parties as to the number of head of cattle and as to the time they were pastured by the plaintiffs. (3) The burden of proof in this case is upon the defendant. J. S. Hoke, to prove by a preponderance of the evidence that the plaintiffs made the contract with him as he alleged, and also that the plaintiffs understood at the time they made

the contract that the defendant contemplated that his cattle should make the gain that cattle of a like kind usually make under like circumstances, and that the plaintiffs were undertaking, and agreed, with the said Hoke, to make the said cattle gain as many pounds as cattle of a like kind could be made to gain under the most favorable circumstances. (4) A person who receives cattle for hire, to be fed and pastured, is a bailee for hire, and the relation between the parties is what is known in law as a bailment'; the party furnishing the cattle being the bailor, and the person feeding or grazing cattle being the bailee. (5) As between the bailor and bailee for hire, the bailee is only bound to use ordinary care; and ordinary care is such care as is ordinarily taken and exercised by bailees engaged in a like business under like circumstances. Before the defendant, Hoke, could recover for any want of care on the part of plaintiffs, under ordinary care, he must show by a preponderance of the evidence that the plaintiffs contracted and agreed with him to take more than ordinary care of the cattle. The want of ordinary care is ordinary negligence, and the plaintiffs in this case are not bound for slight negligence, unless the evidence shows in behalf of defendant, by a preponderance thereof, that they contracted and agreed that they would exercise more than ordinary care. (6) A bailor. cannot recover damages for any negligence or want of care on the part of the bailee which is not expressly contracted for in the contract, if he is himself guilty of any want of ordinary care which contributed to the injury; and if you find from the evidence that the defendant, Hoke, was at the plaintiffs' pasture the latter part of July, and at the time when he now claims that the said pasture was insufficient, or at any time when, by examining the pasture, it could have been determined by him that the pasture was insufficient to pasture the cattle then in the pasture, and failed to make an examination of the pasture, and further find that a reasonably prudent man, under the same circumstances, would have made an examination of the grass in the pasture at that time, in that event, such failure on the part of the defendant would be negligence, and, if such negligence contributed to his injury, he cannot recover, or offset any such damages in this case. (7) The plaintiffs in this case are not bound for any mistake of judgment. If they took, in the spring of the year, when grass was starting, what cattle in their honest judgment could be reasonably well pastured in the pasture for the season, and such number as a reasonably prudent man would have taken under like circumstances, they cannot afterwards be held liable for any damages resulting from their mistake in judgment, if they exercised and used ordinary care, prudence, and judgment, unless you find, from the evidence in favor of the defendant, by a preponderance thereof, that the plaintiffs agreed to furnish more acres of pasture per head than they did subsequently furnish. (S) To constitute a contract or agreement, both parties must agree upon its terms. It must be mutual. Both parties must understand the subject-matter of the contract, and contemplate fully and fairly all the matters which could reasonably be expected to arise from a breach thereof; and before the defendant in this case can recover against the plaintiff any damages, on account of anticipated profits, by reason of a breach of the contract to furnish him a certain amount of grass and water, he must show by a preponderance of the evidence that the plaintiffs agreed to furnish the amount of acres and water claimed, and that they fairly understood at the time what would be the result in damages to the defendant in case of a breach of the contract; and the defendant is bound to prove, also, by a preponderance of the evidence, that the plaintiffs did knowingly breach the contract, and al

so that he was damaged in a sum and amount which can be determined with reasonable certainty, and that such damage was the result of the breach of such contract. (9) If you find from the evidence that plaintiffs agreed with defendant to furnish defendant plenty of grass and water for pasturing defendant's cattle, then you will consider whether or not plaintiffs, have failed to furnish plenty of grass and water for defendant's cattle. If you further find from the evidence that defendant's cattle failed to increase in weight by reason of the failure of plaintiffs to furnish grass according to their contract, then you will determine from the evidence how much defendant has been damaged by reason of the failure of his cattle to increase in weight as they would have done if grass had been furnished them according to the contract, and déduct said damages so found, if any, from the amount that you may find due plaintiffs for pasturing said cattle. (10) The defendant claims that plaintiffs agreed to furnish him plenty of grass for the cattle which he furnished in plaintiffs' pasture, and that plaintiffs failed to furnish plenty of grass as contracted; and it is for the jury to determine whether or not such a contract was made, and whether or not plaintiffs failed to comply with such contract. (11) If the jury find from the evidence that plaintiffs failed to furnish grass for defendant's cattle in the season of 1898 as they agreed to do, and if you further find that by reason of plaintiffs' failure to furnish grass according to the contract the defendant had to remove his cattle from plaintiffs' pasture in order to furnish them with sufficient grass, then you will find what damage, if any, was caused to defendant by reason of loss of growth of defendant's cattle caused by the removal of said cattle before the pasture season was ended, and deduct the damages so found from any amount which may be owing to plaintiffs by defendant for the pasturing of said cattle. (12) If you find from the evidence that defendant agreed with plaintiffs that, if he removed his cattle before the end of the pasture season, he should pay 30 cents per head for the time actually pastured, and find that defendant removed his cattle before the end of the season for the reason that the pasture furnished by plaintiffs was insufficient for his cattle, you cannot find the additional 5 cents per head per month against the defendant, unless you should further find from the evidence, by a preponderance thereof, that the defendant contracted and agreed with plaintiffs that he should pay 30 cents per head for the cattle during the time they were in the pasture, if he should remove them before the end of the season for any reason, including the reason that the pasture furnished by the plaintiffs was insufficient for their support. In the absence of any special agreement, the defendant would have a right to remove his cattle at any time that the plaintiffs failed or refused to furnish sufficient grass and water according to the terms of the contract between the parties. (13) The jury are the sole and exclusive judges of all the facts in the case, and of the credibility of the witnesses. You have the right, in determining the weight and value of the evidence, to take into consideration the feelings, motives, passions, and prejudices of the witnesses; their interest in the result of the suit, where any is shown; their manner on the stand while giving their testimony; their memory and knowledge of the things about which they testify; and every fact and circumstance occurring at the trial, and in evidence, which tends to contradict or corroborate any witness, -and then give the several parts of the evidence such weight as they may seem to merit." The special instructions submitted by counsel for plaintiff in error are as follows: "(1) If you find from the evidence that defendant removed his cattle at the end of the pasture season by reason of plaintiffs' pasture being insufficient,

then plaintiffs could not recover 30 cents per month per head, even if the contract was made as claimed by plaintiffs. (2) If the defendant went to Colorado in the latter part of July, and if the pasture was apparently sufficient for his cattle when he examined same shortly prior to his going to Colorado, then I instruct you that the defendant had the right to rely on plaintiffs to furnish pasture as agreed, and defendant is. not guilty of negligence by reason of not examining said pasture from about July 24 to about September 1, 1898." From our examination of the evidence, we are satisfied that the law, as given in the instructions, is applicable to the facts, and that no error was committed that would justify a reversal of the case. The judgment of the district court is affirmed.

KANSAS & C. P. RY. CO. v. LAWRENCE et al. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 17, 1900.) Error from district court, Franklin county; A. W. Benson, Judge. Injunction proceedings by the Kansas & Colorado Pacific Railway Company against J. J. and Martha Lawrence. On the death of J. J. Lawrence, Martha Lawrence and W. F. Lawrence were substituted as his personal representatives. Judgment for defendants. Plaintiff brings error. Affirmed. Waggener, Horton & Orr, for plaintiff in error. H. P. Welsh, for defendants in error.

PER CURIAM. This is a proceeding in error, brought by plaintiff in error to reverse a judgment of the district court of Franklin county refusing an injunction against the enforcement of a judgment theretofore rendered by said court in an action in which plaintiff in error and the Council Grove, Osage City & Ottawa Railway Company were defendants and J. J. Lawrence and Martha Lawrence were plaintiffs. In its petition, filed in the injunction proceedings, plaintiff in error alleged that the judgment, the enforcement of which it sought to enjoin, was void because, in the case in which such judgment was recovered, it (plaintiff in error) was not served with summons and made no appearance in said action. Defendants in the injunction proceedings admitted that no summons was served, but averred that plaintiff entered its appearance. The case was tried to the court. The only question at issue was, did the plaintiff enter its appearance in the action in which the judgment, the enforcement of which it sought to enjoin, was rendered? Upon this question, the court found in favor of defendants. Taking the evidence as a whole, we think that it supports this finding. The judgment of the district court will be affirmed.

LEHMAN-HIGGINSON GROCER CO. v. STAUB et al. (Court of Appeals of Kansas, Southern Department, C. D. Jan. 12, 1901.) Error from district court, Sumner county; J. A. Burnette, Judge. Action by the Lehman-Higginson Grocer Company against John Staub, Sr., and others. From a judgment in favor of deAffirmed. fendants, plaintiff brings error.

W. W. Schwin and James Lawrence, for plaintiff in error. Haughey & McBride and C. E. Elliott, for defendants in error.

PER CURIAM. This case was submitted on the same brief as case No. 714, Bank v. Staub (just decided) 63 Pac. 1133, and the conclusions there reached are adopted in this case. The judgment of the district court is affirmed.

LITTLEFIELD v. LITTLEFIELD. (Court of Appeals of Kansas, Northern Department, E. D. Jan. 1, 1901.) Error from district court, Shawnee county; Z. T. Hazen, Judge. Ac