tion by Clara E. Littlefield against James E. Littlefield. Judgment for defendant, and plaintiff brings error. Reversed. Waters & Waters, for plaintiff in error. W. E. Fagan, for defendant in error.

PER CURIAM. There is nothing in this case to review. There is no case-made or certified transcript of the record attached to the petition in error, as is required by law. The pretended transcript of the record is certified to by the clerk as "a full, true, and correct copy of petition, demurrer, and journal entry in the above-entitled cause, as the same appears on file in my office.' Under numerous decisions of our supreme court, this has been held not to be a compliance with the law. The petition in error will be dismissed.

NELSON et al. v. BARR. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Error from district court, McPherson county. Action by Sarah E. Barr against Mary C. Nelson and others. Judgment for plaintiff. Defendants bring error. Affirmed.

PER CURIAM. This action was commenced by Sarah E. Barr, defendant in error, in the district court of McPherson county, against Mary C. Hultgren, now Mary C. Nelson, plaintiff in error, to recover upon a promissory note given for $1,000 and interest and upon a certain real-estate mortgage executed to secure the note sued upon. The note was made payable to the Globe Investment Company, at its office in Boston, Mass., and was by the investment company indorsed to the plaintiff below, defendant in error, Sarah E. Barr. The defendants below in their answer allege that the plaintiff's note had been duly paid and satisfied before the commencement of this action, a part of which payment it is alleged was made in money, and a part by the giving of a new note and mortgage for $800. The trial court instructed the jury that there was no evidence in the case to warrant the court in submitting to them the question as to whether or not any payment had been made upon the plaintiff's note by the giving of the $800 note and mortgage. In this ruling we concur. The only question submitted to the jury was the amount due on the note. The jury returned a verdict for $1,012, after deducting the $200 cash payment. For this amount judgment was rendered. The defendants below bring the case here. The court instructed the jury: (5) There is some evidence in this case, with relation to a certain draft sent from Marquette, in the sum of $225, as a payment upon the plaintiff's note, sued upon, and interest then due, and the jury are instructed that if said sum of money was received at the place where the said sum was payable, at the office of the Globe Investment Company, at Boston, Mass., then the defendant Mary C. Hultgren, now Nelson, is entitled to a credit upon the note in suit for the amount of such payment as was made upon the note as of the date when it was so received at said office in Boston. There is also some evidence in this case tending to prove that the plaintiff received interest upon her note in suit for 18 months after it became due, and that this was so received from the Globe Investment Company, at Boston. If she did so receive such interest, then the defendant Mary C. Hultgren, now Nelson, is entitled to receive credits upon the note in suit of the amounts so received by the plaintiff, and at the times it was so received. (6) If the defendant Mary C. Hultgren, now Nelson, is entitled to receive any credits upon the note now in suit, it is by reason of the payments made in the first preceding instruction. These are the only payments which are to be taken into consideration by the

jury. If these payments were so made, or if either of them were so made, then you should credit the note in suit with the amount of such payments and at the times they were made." We will not attempt to give a review of the evidence. From a careful consideration of the record, we conclude that the agency of the Globe Investment Company was a limited one, and that the rulings and instructions of the court are in harmony with the well-established principles of law in this state. The judgment of the district court will be affirmed.

NOLAN V. FOLEY. (Court of Appeals of Kansas, Southern Department, W. D. Nov. 19, 1900.) Error from district court, Hamilton county. Action between T. B. Nolan and Dennis Foley. From a judgment for the latter, the former appeals. Affirmed.

PER CURIAM. We have made a careful examination of the questions raised in this case, and have concluded that a fair trial was had, and no prejudicial error was committed by the trial court. No good purpose can be served by writing an extended opinion in the case. The judgment of the district court is aflirmed.

PENDLETON v. MENTE et al. (Court of Appeals of Kansas, Northern Department, E. D. Jan. 1, 1901.) Error from district court, Douglas county; Samuel A. Riggs, Judge. Action by W. M. Pendleton against E. W. Mente and E. V. Benjamin. Judgment for defendants, and plaintiff brings error. Reversed. Bishop & Mitchell and Brownell & Poehler, for plaintiff in error. Alford & Clingman, for defendants in error.

PER CURIAM. The plaintiff in error began this action against the defendant in error to recover damages for an alleged breach of contract for the sale and delivery of a car load of bags. The action was begun before a justice of the peace, where the plaintiff had judgment. Defendants appealed to the district court. Upon a trial, defendants objected to the introduction of any evidence in support of the plaintiff's claim, for the reason the bill of particulars did not state a cause of action. This objection was sustained by the court, and judgment went against the plaintiff for costs. The briefs of both parties are devoted almost entirely to the discussion of a proper measure of damages in such cases. No defect of the bill of particulars is pointed out. The bill of particulars alleged the co-partnership between the defendants in error, a contract for the purchase of a specific character of bags at an agreed price and the number of bags constituting a car load, a failure to deliver according to the agreement, and the market value at the place of delivery and at the time the delivery should have been made, with a prayer for damages accordingly. It also contains allegations respecting a resale by the plaintiffs in contemplation of the delivery, and the price at which such resale was made, but does not aver knowledge on the part of the defendants of such contemplated resale by the plaintiff. On the part of the defendants in error it is argued that the measure of damages is the difference between the contract price and the market price at the time and place of delivery. It is true that this is the usual measure of damage in such cases, and, while it may be true that the allegations of the bill of particulars were not sufficient to charge the defendants with damage upon the account of the resale, under the allegations it is sufficient to charge the defendants with damages according to the ordinary rule stated. We are of the opinion, therefore, that the court erred in sustaining the objection to the introduction

of evidence. The judgment of the district court is reversed, and the cause remanded, with directions to award a new trial.

SELLERS et al. v. GAY et al. (Court of Appeals of Kansas, Southern Department, E. D. Jan. 14, 1901.) Appeal from district court, Miami county; John T. Burris, Judge. Action between A. K. Sellers and others and Henry Gay and Willard P. Holmes. From a judgment, Sellers and others bring error. Affirmed. B. F. Simpson and N. W. Wells, for plaintiffs in error. Cook & Gossett, for defendants in error.

PER CURIAM. From our examination of the record and the authorities cited, we are satisfied that no error sufficient to justify a reversal of this case has been committed. The judgment of the district court is affirmed.

SNYDER et al. v. NICHOLS et al. (Court of Appeals of Kansas, Southern Department, C. D. Jan. 12, 1901.) Error from district court, Sedgwick county; D. M. Dale, Judge. Action by C. W. Snyder and others against Emily M. Nichols and others. From a judgment in favor of certain defendants, plaintiff and defendant Gertie Snyder bring error. Motion to dismiss overruled. Amidon & Conly, for plaintiffs in error. Hardy Sayre, Kos Harris, and J. H. Stewart, for defendants in er

ror.

PER CURIAM. The ground of the motion to dismiss is that Gertie A. Snyder, wife of C. W. Snyder, is improperly joined as a plaintiff in error; the claim being that, although Mrs. Snyder was made a party defendant on motion of the original defendant in the action brought by C. W. Snyder and others against Emily M. Nichols and others, and although she filed an answer therein, and although judg ment was rendered against her and her husband for costs, and a judgment in favor of Nichols, quieting title as against Snyder and wife to the land in controversy, yet that Mrs. Snyder did not file a motion for a new trial or participate in making and settling a casemade. We find this claim to be unfounded. The journal entry of the final judgment in the action recites that the "plaintiff filed motion for a new trial, * and the same was argued by the attorneys for C. W. Snyder and Gertie Snyder, * and the court overruled the same, to which the said plaintiff and the said Gertie Snyder duly at the time excepted, and asked the court for time in which to make and serve a case-made for the su preme court in the state of Kansas." Snyder and his wife were represented throughout the trial by Amidon & Conly, who made and served a case-made, and the certificate of the judge states that the case-made was presented to him for settlement by Amidon & Conly as attorneys for Charles W. Snyder and Gertie Snyder. The action involves the homestead of the Snyders, and it is possible that Mrs. Snyder was not a necessary party in the action. The motion to dismiss will be overruled.

* *

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STARRETT v. SHAFFER, Sheriff, et al. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Error from district court, Ness county. Action by P. P. Starrett against W. H. Shaffer, sheriff, and J. A. Wierman. Judgment for defendants. Plaintiff brings error. Affirmed.

PER CURIAM. This action was commenced in the district court of Ness county, Kan., to enjoin defendants in error from selling certain property, claimed by plaintiff in error, under an execution. The material error complained of is "that the evidence did not warrant the

court in rendering judgment in favor of defendants." From an examination of the record, we are satisfied that the finding of the court is fully sustained by competent testimony. The judgment of the district court is aflirmed.

STATE v. EDWARDS. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12. 1901.) Appeal from district court, Finney county. Charles Edwards was convicted of violating the prohibitory law, and brings error. Affirmed.

PER CURIAM. In this case the appellant was charged with violating the prohibitory law. The principal errors assigned and the authorities cited are the same as in State v. Hinkle, Infra, and Same v. Scarlett (just decided) infra. We have examined the record, the errors assigned, and the authorities cited, and find no error so prejudicial to the appellant that it would justify a reversal. The judgment of the district court is affirmed.

STATE v. HINKLE. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Appeal from district court, Finney county. George T. Hinkle was convicted of illegal sale of liquor, and brings error. Affirmed.

PER CURIAM. The appellant was charged with the illegal sale of liquor, and the keeping and maintaining of a common nuisance. He was tried in the district court of Finney county, and convicted. He brought the case here on appeal. Many errors are assigned and well argued in the brief of counsel for appellant. From a careful examination of the authorities, we find no error prejudicial to the substantial rights of the appellant. The judgment of the district court will be affirmed.

STATE v. SCARLETT. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Appeal from district court, Finney county. John Scarlett was convicted of violating the prohibitory law, and brings error. Affirmed.

PER CURIAM. In this case the appellant was charged in the district court of Finney county with the violation of the prohibitory law. The errors discussed in the brief of counsel for appellant and the authorities cited are similar to those in the case of State v. Hinkle (just decided) ubi supra. We have examined the record in this case, and find no error sufficient to justify a reversal. The judgment of the district court is affirmed.

STATE BANK OF BURDEN v. HOYLAND et al. (Court of Appeals of Kansas, Southern Department, C. D. Jan. 12, 1901.) Error from district court, Cowley county; C. L. Swarts, Judge pro tem. Action by the State Bank of Burden against L. E. Hoyland and others. From a judgment for defendants, plaintiff brings error. Affirmed. M. G. Troup & S. J. Day, for plaintiff in error. Madden & Buckman, for defendants in error.

PER CURIAM. This was an action commenced by the plaintiff in error against defendants in error to recover upon a certain promissory note for the sum of $1,200. The defendants admitted the execution of the note, but alleged that they were entitled to certain credits. This action assumed the nature of an accounting. From our consideration of the record and the argument of counsel, we are satisfied that the evidence is sufficient to uphold the verdict and judgment, and the instructions given fully state the law. The judgment of the district court is affirmed.

THOMAS V. BARBER. (Court of Appeals of Kansas, Northern Department, E. D. Jan. 1, 1901.) Error from district court, Atchison county; W. T. Bland, Judge. Action by Joseph Barber against George C. Thomas. Judgment for plaintiff. Defendant brings error. Reversed. Jackson & Jackson, for plaintiff in error. Waggener, Horton & Orr, for defendant in er

ror.

PER CURIAM. This action was originally instituted in the Atchison city court upon a bill of particulars filed by the defendant in error herein against the plaintiff in error to recover the sum of $248, which sum was claimed upon a certain contract, a copy of which is as folJows: "Horton, Kansas, November 3, 1898. Sold to George W. Cole twelve hundred, more or less, bushels number three corn, at twentyfive and one-half cents per bushel, to be delivered at his elevator in Horton, Kansas, within ten days from date. [Signed] George G. Thomas."

Said bill of particulars further stated that on the same day said Cole assigned and transferred said contract to said plaintiff therein in the following words, to wit: "November 3rd, 1898. Transfer. This within contract of corn to J. Barber at twenty-six cents per bushel, said Barber to pay Thomas full amount of twenty-six cents per bushel and accept grade. [Signed] George W. Cole. Joseph Barber,"-and forthwith the said defendant, George C. Thomas, recognized said assignment and transfer, and agreed to deliver said corn to said plaintiff, at the farm of said plaintiff, whenever demanded, and in consideration thereof the said plaintiff paid to said defendant $200 on account thereof; that demand was made for the delivery of said corn about February 1, 1899, which has never been complied with; that said corn at the time of demand was worth 30 cents per bushel,-and claiming judgment for said sum of $248. An appeal was taken to the district court, where a trial was had to a jury, and at the conclusion thereof the plaintiff withdrew the $48 item of damages, and under the instruction of the court a verdict was returned for the plaintiff in the sum of $207.50, and judgment was rendered accordingly. To reverse this the case is brought here. Upon the trial some evidence was introduced tending to show modifications of the original contract. It was also shown on behalf of the defendant that before the corn was delivered to the plaintiff the defendant was garnished in an action against the plaintiff, and that in said garnishment proceedings the defendant answered that he had in his possession $200 worth of corn belonging to said Joseph Barber, being 7693/13 bushels, at the price of 26 cents per bushel. Afterwards an execution was issued on a judgment therein rendered, and levied on said corn in the crib, with other corn undivided, and same sold as the property of said Joseph Barber. We do not think that the court could say as a matter of law just what the contract was as it existed between the parties at the time of the alleged forfeiture. There was sufficient evidence to go to the jury upon that question, and from the evidence thereon different minds could legally draw more than one conclusion. The judgment is reversed, and a new trial directed.

are satisfied that the judgment of the district court should be affirmed. No authorities are cited bearing upon the errors assigned. The judgment of the district court is affirmed.

WELLINGTON NAT. BANK 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 Wellington National Bank against John Staub, Sr., and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed. W. W. Schwin and James Lawrence, for plaintiff in error. Haughey & McBride and C. E. Elliott, for defendants in error.

Her

PER CURIAM. This proceeding in error is brought to reverse the ruling and judgment of the district court of Sumner county in dissolving certain attachments procured by the plaintiff in error, as plaintiff below, against the defendants in error, as defendants below. For some years prior to the 16th day of March, 1896, S. E. Staub, called Lizzie Staub, was the proprietor of a grocery store in the city of Wellington under the name of Staub & Co. father, John Staub, acted as manager of the business. The controlling facts are that on the 16th day of March, 1896, Staub & Co. (being S. E. Staub) owed a note to the Wellington National Bank for $412. On this note Catherine Staub was security. Staub & Co. also owed a note to F. K. Robbins & Co. for $575.96. This note was secured by the name of M. L. Briggle, and also by the indorsement and delivery of a certificate of deposit for $600 owned by Catherine Staub. Staub & Co. were also indebted to other parties. On the 16th day of March, 1896, Lizzie Staub, signing as Staub & Co. and S. E. Staub, executed a mortgage to M. L. Briggle upon the stock of groceries, store fixtures, and book accounts to secure him as surety on the note for $575.96 to Robbins & Co. It is contended that the giving of this mortgage to Briggle was fraudulent; that the effect was to place the goods beyond the reach of the bank, and to hinder and delay it in the collec tion of its debts; and that this was sufficient to justify the attachment. The attachment was obtained upon an affidavit charging a fraudulent disposition of property. The motion to dissolve was verified, and traversed the grounds alleged in the attachment affidavit. On the hearing, oral testimony was introduced and the attachment dissolved by the court. We have examined the evidence and the authorities cited, and conclude that the judgment of the district court should be affirmed.

WICHITA WHOLESALE 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 Wichita Wholesale Grocer Company against John Staub, Sr., and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed. James Lawrence and W. W. Schwin, 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 the case of Bank v. Staub (just decided) ubi supra, and the conclusions there reached are adopted in this case. judgment of the district court is affirmed.

The

WILCOX v. EADIE. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) Error from district court, Greeley county. Action by A. C. Wilcox against Robert Eadie. Judgment for defendant, and plaintiff brings error. Affirmed.

PER CURIAM. This action was commenced in the district court of Greeley county, "on December 31, 1897, to recover $350 and interest claimed to be due on a promissory note executed January 1, 1898, due five years after date. The only question before the trial court was that of the statute of limitations. The note sued on provides that on failure to make any interest payment the note might become due, at the option of the owner and holder. The defendant claims that this option was exercised, and the statute of limitations began to run, in January, 1891, more than five years before the commencement of this action. The defendant was notified of this option by a written notice, received by Thomas Eadie, the owner of the land on which the mortgage was given to secure the said note. The plaintiff denies that this option was exercised, but admits that if it was the action was barred, and plaintiff cannot recover." The plaintiff in error in his brief says: "To avoid any misunderstanding, the plaintiff will admit that, if the owner and holder of the note sued on notified Robert Eadie that an interest coupon had been due and unpaid more than ten days, and therefore he declared the whole of said príncipal note due, then the statute of limitations would begin to run, and, if that was more than five years prior to December 31, 1897, the plaintiff ought not to recover." This is the only question. The whole controversy is reduced to a question of fact. It is contended that the trial court erred in the admission of testimony. There is some incompetent testimony in the record, but in our opinion the errors complained of are not sufficient to require a reversal of the case. The judgment of the district court is affirmed.

BOUNDS v. BOUNDS et al. (Supreme Court of Washington. Dec. 18, 1900.) Appeal from superior court, Garfield county; M. M. Godman, Judge. Action by Amanda E. Bounds against David O. Bounds and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. Tweedy & Jewett, for appellant. S. G. Cosgrove and Gose & Kuykendall, for respondents.

WHITE, J. This action is brought by the appellant to obtain a decree of divorce against the respondent David O. Bounds and for a decree declaring certain property, the title of which is now in the name of Jane Bounds, the other respondent, to be the property of the appellant and the respondent David O. Bounds. The respondent David O. Bounds answered, and denied the alleged acts of cruelty and the fraud alleged as to the conveyance of the property to Jane Bounds. The respondent Jane Bounds denied the fraud alleged as to the conveyance to her of the property. The court below found against the appellant on all the issues, and adjudged the title of the property to be rightfully in Jane Bounds. The court below, in addition to the findings of fact and conclusions of law, filed a written opinion, carefully weighing, analyzing, and comparing the testimony, which is very voluminous. We have carefully read the testimony, and fully concur, not only in the findings of fact and conclusions of law, but in the force and effect given to the testimony by the trial court. It will do the litigants in this action no good to review in this opinion the testimony at length, and the public would not be benefited thereby. It is the policy of the law to discourage divorces, and, unless the evidence clearly warrants a different conclusion from that arrived at by the trial court, in a case where the court fails to find the allegations of the complaint sustained by the evidence, we will not disturb the findings of the court. The appellant and the respondent David O. Bounds had lived together over 12 years. They are the parents of three

children as the result of that union, who yet need their joint care and support. We do not regard the differences between the appellant and her husband as irreconcilable. We are very much impressed, as was the court below, after reading the testimony in this case, that the father of the appellant and the mother of the respondent David O. Bounds have sown the seeds of discord between the husband and wife. With this malign influence removed, we see no reason why the father and mother of the helpless children involved in this litigation may not again resume the marriage relations. The judgment of the court below is affirmed. DUNBAR, C. J., and ANDERS, REAVIS, and FULLERTON, JJ., concur.

EATON v. SPOKANE COUNTY. (Supreme Court of Washington. Dec. 26, 1900.) Appeal from superior court, Spokane county; William E. Richardson, Judge. Action by H. H. Eaton against the county of Spokane. From a judgment in favor of plaintiff, defendant appeals. Affirmed. James Z. Moore, Miles Poindexter. and Horace Kimball, for appellant. John H. Roche, for respondent.

DUNBAR, C. J. This was an action by the plaintiff (respondent) against the county of Spokane to recover certain commissions on sheriff's sales in foreclosure suits which were alleged to have been turned over to the county treasurer; it having been held by this court in Soderberg v. King Co., 15 Wash. 194, 45 Pac. 785, 33 L. R. A. 670, that a sheriff was not entitled to a commission upon a sale of mortgaged premises under a decree of foreclosure where the property was bid in by the plaintiff for the amount of the mortgage debt, and that where the sheriff, upon making a foreclosure sale, had been paid by the bidder, who was the plaintiff in the action, a certain sum as commission, such sum constituted a surplus in the hands of the sheriff, which it was his duty to pay over to the judgment debtor. At the close of the plaintiff's evidence, defendant moved for judgment of nonsuit against the plaintiff, upon the ground that no proof had been offered that the sheriff had paid over any of the surplus funds aforesaid to the treasurer of Spokane county. motion was denied, and the court found that such commissions had been paid to the treasurer aforesaid. There is only one assignment of error, viz. that the evidence does not justify this finding of fact by the court. The evidence is very brief, but from an examination of it we are of the opinion that there was sufficient proof on this question to justify the finding of the court. The judgment is therefore affirmed. REAVIS, FULLERTON, and ANDERS, JJ.,

concur.

The

HOPKINS et al. v. HALE. (Supreme Court of Washington. Dec. 27, 1900.) Appeal from superior court, King county; William Hickman Moore, Judge. Action by Charles P. Hopkins and others, executors, etc., against William D. Hale, receiver. From a judgment for plaintiffs, defendant appeals. Affirmed. Clise & King, for appellant. Fred H. Peterson, for respondents.

PER CURIAM. On the authority of the case of Hale v. Stenger, 61 Pac. 156, the judgment of the trial court is affirmed.

UNITED STATES SAVINGS & LOAN CO. v. OWENS et ux. (Supreme Court of Washington. Dec. 27, 1900.) Appeal from superior court, Chehalis county; Charles W. Hodgdon, Judge. Action by the United States Savings & Loan Company against Harrison Owens and Narcissa Owens. From a judgment in favor

of defendants, plaintiff appeals. Affirmed. Shank & Smith, for appellant. Greene & Griffiths and J. A. Hutcheson, for respondents.

PER CURIAM. This was an action to foreclose a mortgage given by the respondents to the appellant to secure a loan made upon the terms and conditions common to building and loan associations. The trial court held that all

payments made by the borrower to the company, whether as dues, premiums, fines, interest, or otherwise, applied directly upon the loan, discharging it pro tanto, and the correctness of this holding is the question here. In Hale v. Stenger, 61 Pac. 156, we decided that such payments should be so applied, and for the reasons given in that case the judgment will stand affirmed.