for the sum of $566.60, with interest, and plaintiff also prayed that his lien might be foreclosed, and an order made directing a sale of such real estate, and an application of the proceeds to the satisfaction of the judgment prayed for. The case was tried to the court, and resulted in a judgment in favor of plaintiff. The defendant brings the case here.

It is contended by counsel for plaintiff in error that the court erred in overruling the demurrer of defendant to plaintiff's evidence. It is urged that the record shows that the agreement upon which this action is based was not introduced in evidence. The record shows that plaintiff offered the agreement in evidence, and that defendant objected to its introduction. The court reserved its ruling, and there is nothing to show that any ruling was made upon defendant's objection. This whole matter is, however, disposed of by the fact that the plaintiff alleged in his petition that the investment company executed the agreement in question; a copy of the agreement being attached to the petition. Under the rules of pleading, the execution of the agreement stands admitted unless denied by plaintiff's answer. There is nothing in defendant's answer which can be held by us to be a denial of the execution of the agreement, and whether it was or was not admitted in evidence is wholly immaterial.

Counsel for plaintiff in error denies that Bedell and Breidenthal had any authority to execute the agreement, and it is also urged that the investment company had no power to make such a contract. In its answer the company sets out the following provision of its charter: "That the purpose for which this corporation is formed is to receive, collect, take charge of, and loan money on real estate or other security, as principal or as agent for any persons, corporations, or firms who may intrust funds to its care; to transact a general real-estate and insurance business, and any other business appertaining to the foregoing." We think that the agreement was within the powers of the company as enumerated in its charter. Under the terms of the agreement, the company was to take charge of the property, offer it for sale, collect rents, and, at the expiration of three years from the date of the agreement, was to purchase Hannum's interest, if, in the meantime, no purchaser had been found. The consideration to be paid for such interest was the amount due on Hannum's judgment, and Hannum reserved a lien on the property for the amount of his claim. We certainly think that a company chartered to do a "general real-estate business" would have a right to do these things.

As to the proposition that Bedell and Breidenthal had no authority to execute the contract, it may be admitted that the record does not show any direct author

ity. There is evidence, however, tending to show that these persons had, in a general way, transacted the business of the company at its Western office, and defendant expressly admitted in its answer that Bedell and Breidenthal were vice president and secretary of the company. In the case of Town Co. v. Swigart, 43 Kan. 292, 23 Pac. 569, our supreme court held: "Where the president and secretary of a corporation executes a contract in behalf of the company, which is regular on its face, and not shown to be outside of the regular business of the corporation, it is prima facie evidence that it was executed with authority, and those who deny the authority take upon themselves the burden of establishing their claim." Under the authority of this case, we hold that the burden of proving want of authority on the part of Bedell and Breidenthal to execute the contract rested upon the defendant, and we cannot say that defendant proved that they did not have such authority.

It is also urged by counsel for the investment company that there is no evidence in the record to show that Hannum ever tendered to the company a quitclaim deed to the property. We do not think that it makes any difference whether he did or did not. So far as the evidence shows, the company repudiated the contract, and denied any liability under it. It set up a defense in its answer wholly inconsistent with the idea that it would have complied with the terms of the contract in the event that Hannum had tendered a deed. Under the law of this state, a failure to make a demand will not bar a right of recovery if the facts and circumstances clearly indicate that a demand would have been fruitless. Raper v. Harrison, 37 Kan. 243, 15 Pac. 219. See, also, 5 Am. & Eng. Enc. Law, p. 528a,

note 2.

It is also contended that the record shows that the cause was barred by the statute of limitations. The agreement was entered into November 20, 1889. Under its terms, no cause of action accrued until November 20, 1892. Section 12, c. 95, Gen. St. 1897. The cause would not, therefore, be barred until November 20, 1897. Plaintiff filed his petition April 6, 1897. The cause was therefore brought in time. Other errors are assigned by plaintiff in error, but they are not such as to require a reversal of the case. The judgment of the district court is affirmed.

(10 Kan. A. 488) BRENTNALL v. MARSHALL (Court of Appeals of Kansas, Southern Department, E. D. Dec. 17, 1900.) APPEAL-HARMLESS ERROR-VARIANCE-VEN

DOR AND PURCHASER.

1. "Where there is a variance between the allegations of a bill of particulars and the facts proved and specifically found by the jury on

the trial, yet if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced." Jung v. Liebert, 24 Pac. 474, 44 Kan. 304.

2. Where, by the terms of a contract for the sale and conveyance of land, the purchase price is made payable in installments, and the conveyance is to be made upon the payment of the last installment, and where default is made by the purchaser in the payment of installments, and no action is taken by the vendor, either to enforce or rescind the contract, until after the maturity of the last installment, the obligations of the parties to the contract are mutual and dependent, and the vendor cannot put the purchaser in default, save by an offer to convey the land.

(Syllabus by the Court.)

Error from district court, Osage county; William Thomson, Judge.

Action by Samuel Marshall against Samuel Brentnall, before a justice. Judgment for plaintiff was affirmed on appeal, and 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 error.

SCHOONOVER, J. On May 22, 1886, the Osage Carbon Company, a corporation doing business under the laws of Kansas, entered into a written contract by which it agreed to sell and convey to Samuel Marshall, the defendant in error herein, certain real estate in Osage county, Kan. Marshall made a cash payment upon the land of $545, and agreed to pay the balance of the purchase price, $2,160, with accruing interest, in five installments; the last installment being due May 22, 1891. The contract contained, among others, the following provisions: "And it is hereby agreed and covenanted by the parties hereto that time and punctuality are material and essential ingredients in the contract. And in case the third party shall fail to make the payments aforesaid, and each of them, punctually, and upon the strict terms and times herein limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid strictly and literally, without any failure or default, including the prompt payment of all taxes and assessments upon said land before the same shall become delinquent according to law, then this contract, so far as it may bind said party of the first part, shall become utterly null and void. And all rights and interests hereby created or then existing in favor of the third party, or derived from him, shall utterly cease and determine, and the right of possession and all equitable and legal interests in the premises hereby contracted shall revert to and revest in said party of the first part, without any declaration of forfeiture or act of reentry, or any other act of said party of the first part to be performed, and without any right of said third party to reclamation or compensation for moneys paid or services per

formed or improvements made, as absolutely, fully, and perfectly as if this contract had never been made. And said party of the first part, its successors or assigns, shall have the right, immediately upon the failure of the party of the third part to comply with the stipulations of this contract, including the payment of all taxes before the same shall become delinquent, to enter upon the land aforesaid and to take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said party of the third part covenants and agrees that he will surrender unto the said Osage Carbon Company the said lands and appurtenances without delay or hindrance, and no court shall relieve the party of the third part from a failure to comply strictly and literally with this contract. In case the third party, his legal representatives or assigns, shall pay the several sums of money aforesaid punctually and at the times above limited, and shall strictly and literally perform all and singular his agreements and stipulations aforesaid, after their true tenor and intent, including the prompt payment of all taxes and assessments upon the said land before the same shall become delinquent according to law, then the said trustee shall release and discharge the said land from any and all incumbrances created by the said deed of trust, and the said first party shall, upon surrender of this contract, execute and deliver to the said party of the third part, his heirs or assigns, a proper deed for the said premises, conveying the same absolutely in fee simple, with the ordinary covenants of warranty." Marshall entered into possession of and occupied the land, and made some substantial improvements upon it. In March, 1894, he leased the premises for a term of one year to Samuel Brentnall, plaintiff in error, who took possession of and occupied the same. Marshall failed to pay all the installments as provided by the terms of the contract, and in December, 1894, the Osage Carbon Company canceled the contract. Marshall did not consent to such cancellation, otherwise than by the terms of the contract itself. On January 18, 1894, the Osage Carbon Company executed a written lease of the premises to plaintiff in error, Brentnall, who continued in possession of the land until March 1, 1896, claiming, however, to hold possession of the premises from January 18, 1895, to March 1, 1896, under and by virtue of the lease executed to him by the Osage Carbon Company. Marshall brought suit against Brentnall, before a justice of the peace of Osage county, to recover $200, as rent for the premises for one year, from March 1, 1895, to March 1, 1896, and succeeded in obtaining a judgment in his favor. The case was then taken on appeal to the district court of Osage county, where a judgment was again rendered in Marshall's favor. Brentnall brings the case here for review.

Plaintiff in error contends that as this action was founded upon a written lease of the

The

land, and the proof showed that the tenant was never put in possession of the land and never occupied it, there was, therefore, no right of recovery. The lease upon which the action is founded and plaintiff's petition described the land as being situated in township 17, Osage county, Kan., while the proof showed that the land was situated in township 16, Osage county, Kan. We think that the record clearly shows that the case was tried upon the theory that the suit was to recover rent for the use and occupancy of land situated in township 16, Osage county, Kan. case was tried, in part, upon an agreed statement of facts. It appears from this statement that Brentnall actually leased the S. W. 4 of section 34, in township 16, Osage county, Kan., and that under his lease he went into possession of the land and occupied it for more than two years, but that for the last year he paid no rent to Marshall, claiming to hold the land during that year under a lease from the Osage Carbon Company. If, therefore, the Osage Carbon Company was not, and Marshall was, entitled to the possession of the land during the last year of Brentnall's tenancy, it is clear that Marshall has a cause of action against Brentnall; and, this being true, the variance between the pleading and proof was not prejudicial to Brentnall's rights. In the case of Jung v. Liebert, 44 Kan. 304, 24 Pac. 474, the court held that, "where there is a variance between the allegations of a bill of particulars and the facts proved and specifically found by the jury on the trial, yet, if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced." Continuing, the court says: "Though no formal amendment was made or requested in the trial court, we think, as Mrs. Liebert was clearly entitled to her railroad fare or expense, and as the defendant was notified upon the trial of her intention to claim the same, we may properly treat the case as if an amendment to the bill of particulars to accord with the special findings of the jury was in fact made. Therefore we hold that no substantial rights of the defendant have been prejudiced. An account or bill of particulars filed with a justice of the peace is not usually framed with much care or nicety, and the strict rules applicable to the construction of pleadings are not to control such accounts or claims. Morally and legally, the plaintiff below is entitled to the amount she recovered, and this court ought not, on account of a mere technicality which does not affect the substantial rights of the parties, to set the judgment aside."

As we have already remarked, it is clear from the record that the case was tried upon the theory that this was an action to recover rent for the use and occupancy of land in township 16, Osage county, Kan.

We think, also, that the record shows that the defense relied upon was that Marshall, by reason of his failure to pay the installments as provided by the terms of the contract of sale entered into between himself and the Osage Carbon Company, had forfeited his right to the possession of the land, and that he (Brentnall) had, therefore, a legal right to recognize the Osage Carbon Company as his landlord. So far as the record shows, Marshall never paid any of the installments named in the contract. More than 3% years elapsed from the time the last installment was due before the Osage Carbon Company canceled the contract. How it was canceled, the record does not disclose. It is not shown that any notice of such cancellation was ever given to Marshall; that the company tendered to Marshall a deed to the land, with a demand for performance on his part, or did any act which indicated an intention to terminate the relation existing between it and Marshall, prior to the time of the execution of the lease to Brentnall. On the part of plaintiff in error, it is contended that Marshall, by reason of his failure to pay the installments as provided by the terms of the contract of sale, had forfeited absolutely all his interest in the land, including the right of possession. On the part of defendant in error, it is contended that the Osage Carbon Company, by its delay in attempting to regain possession of the land after Marshall had made default in the payment of the installments, waived the provisions of the contract as to time and punctuality, and that no act on its part would, therefore, be binding on Marshall, without his consent, unless the company had fully complied with the terms of the agreement and tendered to him a deed. In the case of Soper v. Gabe, 55 Kan. 646, 41 Pac. 969, the supreme court held that "where, by the terms of a contract for the sale and conveyance of land, the purchase price is made payable in installments, and the conveyance is to be made upon the payment of the last installment, and where default is made by the purchasers in the payment, and no action is brought by the vendors to enforce the contract until after the maturity of the last installment, the obligations of the parties to the contract are mutual and dependent; and the vendors cannot maintain an action to enforce the contract specifically, or to recover any part of the purchase money, until they make or tender a conveyance of the land." In this case the terms of the contract providing for a forfeiture in case of failure to make prompt payment of installments when due, as well as the agreement to make conveyance of the land upon payment of all installments, etc., were, in effect, identical with the provisions of the contract in the case at bar. In its opinion, the court said: "The obligations of the contract are mutual and dependent, and, before one party can enforce performance, it must

As

appear that he is not himself in default. The Gabes might have enforced the collection of all the installments preceding the last one without having tendered a conveyance of the property sold; but, as no steps were taken to collect the several installments until after the last one was due, a single cause of action exists for the collection of the purchase money, and payment cannot be compelled until they have complied or tendered compliance with the obligations resting upon them." The court cited the opinion of Iles v. Elledge, 18 Kan. 296,a somewhat similar case,-wherein it was held that "all parties to the papers must perform at the same time, neither being under any obligations to trust the other. it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase money embraced in the note sued on." Applying the rule stated in these cases to the facts in the case at bar, we hold that, before the Osage Carbon Company could place Marshall in default, it must have tendered to him a deed to the land. It is true that, upon the failure of Marshall to pay any of the installments preceding the last, it might have canceled the contract and recovered possession of the land without any offer on its part to perform; and, as Marshall's right of possession would have been terminated absolutely, it is possible that Brentnall might legally have recognized the Osage Carbon Company as his landlord. But, as the company delayed action until long after the last installment became due, it was then as much its duty to tender a deed as it was Marshall's duty to tender payment; for, as was said in the case of Soper v. Gabe, supra, after the last payment became due the terms of the contract were mutual and dependent. If, then, the Osage Carbon Company could not put Marshall in default save by an offer to perform, it follows that the right of possession was in Marshall during the year that Brentnall claimed to hold the land under a lease from the Osage Carbon Company, and Marshall was entitled to rent for that time. Under the circumstances, the well-settled principle that the tenant cannot dispute his landlord's title would apply. No error appearing in the record, the judgment of the district court will be affirmed.

only; but the act as revised, shall be re-enacted and published at length," are restrictive and mandatory; and when an act or a section is revised or amended the same must be complete within itself, so that when published as revised or amended it will contain all the law upon the subject embraced in the act or section.

2. Chapter 56, Sess. Laws 1899, clearly reveals the fact that the legislature attempted to change an existing law without pursuing the method pointed out by the fundamental law. The changes made are therefore in violation of it, and so much of chapter 56 as attempts to confer the power to file informations in criminal prosecutions upon a district attorney, when the old law made it incumbent upon the county attorney to file such informations, is without force or effect.

3. When a portion of an act is unconstitutional, and such portion can be rejected, and the remaining portion is properly indicated by the title, and forms a complete enactment in itself, capable of being executed according to the manifest intention of the legislature, independently of the part stricken out, such portion must be sustained.

4. Chapter 56, Sess. Laws 1899, in so far as it is amendatory of sections 633, 2061, 2449, 4692, 4693, Rev. St. 1898, is void; and district attorneys whose offices were created by said act have no power to sign and file informations in criminal cases.

5. The conviction and sentence of a person charged with crime, by an information not signed by the person designated by law, are void for want of jurisdiction in the trial court.

(Syllabus by the Court.)

Appeal from district court, Uinta county; John E. Booth, Judge.

James W. Beddo was convicted of crime, and appeals. Reversed.

W. H. Frye and E. A. Walton, for appellant. A. C. Bishop, Atty. Gen., and Wm. A. Lee, Asst. Atty. Gen., for the State.

BARTCH, C. J. The defendant herein was prosecuted for and convicted of the crime of rape, committed upon the person of a little girl 12 years of age. Upon having been sentenced to undergo imprisonment in the penitentiary for a period of 5 years, he appealed to this court.

The record shows that the information under which the prosecution was conducted was filed by the district attorney under chapter 56, Sess. Laws 1899, p. 77, and not by the county attorney, as provided in section 4692, Rev. St. It is insisted on behalf of the prisoner that such portions of chapter 56 as are claimed by the prosecution to authorize district attorneys to file informations in criminal cases are void, as being in conflict with article 1, § 24, and article 6, §§ 22, 23, of the state constitution, and that therefore, the information having been filed by such district attorney, instead of the county attorney, the court acquired no jurisdiction to try the case. The decisive question herein, it seems, arises under section 22, art. 6, Const., which, so far as important here, provides that "no law shall be revised or amended by reference to its title only; but the act as revised, shall be re-enacted and published at length."

These provisions are clearly restrictive and mandatory. Under the first clause the legislature is deprived of all power to revise or amend any law by merely referring to its title. To make a valid revision of or amendment to any law, the act as revised, or section as amended, must be re-enacted and published at length as provided in the latter clause quoted. This is a wise provision of the constitution, and was intended to avoid that confusion which would inevitably follow if an act or section could be revised or amended by mere reference to the title or section or word or line as to which the change was intended to be made; for, after repeated amendments so made, the statute law would be rendered so ambiguous and imperfect, and in the course of time would require the examination of so many enactments to ascertain what statutes were in force, as to render any satisfactory determination or conclusion exceedingly difficult, if not impossible. Such revisions and amendments by mere reference to title, however, not only render the statute law difficult of construction, but they are calculated to confuse and mislead the public, and are therefore inimical to business transactions and the interests of the people. So they have a tendency to encourage improvident legislation, by misleading the average legislator, who, because of numerous additions insertions, or substitutions, made with mere reference to the old statute or section, is unable to ascertain what the exact state of the law is; and yet it is of the highest importance that every member of the legislature shall have a correct understanding of what the existing law is, before he attempts to revise or amend it. This fact was doubtless recognized by the framers of the constitution, who evidently intended the provisions above quoted as a remedy for the evils referred to. Therefore when an act or a section is revised or amended the same must be complete within itself, so that when published as revised or amended it will contain all the law upon the subject embraced in the act or section; and any matter contained in the old statute or section which is not contained in the new ceases to have the force of law, except as to past transactions. Suth. St. Const. § 131; Blakemore v. Dolan, 50 Ind. 194; Dodd v. State, 18 Ind. 56. If, then, chapter 56, Sess. Laws 1899, were in no respect violative of any constitutional provision, it would contain all the law upon the subject embraced therein; and the old law respecting prosecutions for crimes, according to the terms of which the county attorney was to file all informations, would cease to exist. But an examination and comparison of that chapter with the various sections of the Revised Statutes referred to in the title of the act which forms the chapter clearly reveal the fact that the 63 P.-7

legislature attempted to change an existing law without pursuing the method pointed out by the fundamental law, and the changes made are therefore in violation of it. In no other light can this legislation be regarded than as an effort to amend those sections of the Revised Statutes by transferring some of the duties imposed by an existing law upon the county attorney to another and different officer. This might have been accomplished had the mode pointed out by the fundamental law been followed, and the sections amended stated in full and published at length in the amending act. As this was not done, and since the positive mandate of the constitution was violated by not following the method prescribed in relation to revisions and amendments of existing laws, so much of chapter 56 as attempts to confer the power to file informations in criminal prosecutions upon a district attorney, when the.. old law made it incumbent upon the county attorney to file such informations, must be held to be without force or effect. We do not think the whole act is necessarily void. The main subject of the act is independent, embracing matter not previously legislated upon, and is properly described in the title. It is a new subject, and makes a new enactment. The foreign matter consists of the amendatory portion of the act, and may be readily separated from the main subject and rejected, so as to leave a sensible and complete enactment, which may be executed. Where a portion of an act is unconstitutional, and such portion can be rejected, and the remaining portion is properly indicated by the title, and forms a complete enactment in itself, capable of being executed according to the manifest intention of the legislature, independently of the part stricken out, such remaining portion must be sustained. Suth. St. Const. § 103; Cooley, Const. Lim. 177, 178; Davis v. State, 7 Md. 151; State v. Becker (S. D.) 51 N. W. 1018; Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670.

We are of the opinion that the act of 1899, in so far as it is amendatory of sections 633, 2061, 2449, 4692, and 4693 of the Revised Statutes, is void; that the district attorney, whose office was created by that act, had no power to sign and file the information in this case; that he, and not the county attorney, having signed and filed the information under which the defendant was prosecuted, the court acquired no jurisdiction to try the case; and that the conviction and sentence of the prisoner are void. Having taken this view, we do not deem it important to decide any other question presented in the record. The case must be reversed and remanded to the court below, to be disposed of as required by law. It is so ordered.

MINER and BASKIN, JJ., concur.