was abandoned on account of the expense. Only a small portion of a day was consumed in making this examination, and the record shows no close inspection or examination of either the deeded land or accretion land was made by McCaskill. Neither is there but very slight, if any, testimony in the record that Munkres attempted in any way to prevent McCaskill from making as full and complete an investigation of the property as he desired. The reason given why a more thorough examination was not made, as expressed by McCaskill, is "lack of time." The parties returned to Chase county, and on the 11th day of October met at the office of Frew & Bailey in Cottonwood Falls; the abstract of title to the Munkres land was examined and approved; deeds to the Chase county land were executed by McCaskill and wife and deposited with the State Exchange Bank, in accordance with the terms of the written agreement; deeds to the Munkres land, one a warranty deed conveying 352 acres of what the parties called the deeded land, and a quitclaim deed to what is called the accretion land, being accretions to the deeded land, were prepared at the same time and place. Munkres' wife not being present to execute the deeds, the same were taken to her for execution and returned to the bank for delivery to McCaskill. These deeds were delivered by the bank to McCaskill about the 23d day of October. Soon thereafter McCaskill went to Savannah, the county seat of Andrews county, Mo.; lodged the deeds for record; attempted to secure the services of the county surveyor to survey the land, but was unable to do so; inquired the price of lumber and materials which he desired for the erection of certain buildings on the property; again went to the property, made a more careful and extended examination than before, in company with one Scotton, a tenant on the place; ascertained there were other parties claiming parts of the accretion land, and also ascertained a portion of the deeded land conveyed was covered by the Missouri river; became dissatisfied with his trade, went to Savannah, procured his deeds after record, wired the State Bank at Cottonwood Falls not to deliver his deeds to Munkres; returned home, and at once instituted this action to cancel and set aside the contract and conveyances made, on the ground of fraudulent representations made by Munkres which induced him to make the trade; tendered a reconveyance of the Munkres' land, and secured a restraining order prohibiting the bank from receiving the $2,000 and delivering his deed to Munkres, as the cashier of the bank had agreed in writing with Munkres at the time of their deposit under the original agreement. Thereupon, Munkres tendered payment of the $2,000, and demanded possession of the deeds to the McCaskill land in accordance with the terms of his contract with McCaskill and his agreement with the cashier of the bank. This de mand was refused by the cashier of the bank on account of the restraining order obtained and served upon him. The bank was interpleaded in this action on account of its interest in the land, and its right to receive the $2,000 under the terms of the contract. Trial was had before the court without a jury, which resulted in a judgment in favor of McCaskill and wife. Defendant brings error. The general principles applicable to suits brought to set aside conveyances on the ground of fraudulent representations are well settled. As expressed by Chief Justice Fuller in Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246: "Fraud is never presumed; and where it is alleged the facts sustaining it must be clearly made out. The representation must be in regard to a material fact, must be false, and must be acted upon by the other party in ignorance of its falsity and with a reasonable belief that it was true. It must be the very ground on which the transaction took place, although it is not necessary that it should have been the sole cause, if it were proximate, immediate, and material." The allegations of misrepresentation found in the amended petition upon which the case was tried cover a wide range; include what was said between the parties before the execution of the contract of October 2d as well as subsequent thereto and while on the visit of McCaskill to make an examination of the property. The evidence found in the record is voluminous and takes the same wide range. It is evident the case was tried by the court upon the theory that all conversations and matters transpiring between the parties at any time during the negotiations were equally open to investigation, and of equal importance in a determination of the question at issue. It is assigned as error, and earnestly pressed upon us by counsel: That the merits of this controversy are largely affected by the contract of October 2d between the parties. That by the very terms and nature of this contract it is shown that McCaskill was unwilling to repose confidence in the representations made by Munkres as to the character, condition, and description of his property. That, being so unwilling, it was expressly stipulated that McCaskill should examine for himself, and if satisfied with such examination the trade should be closed, and if not there should be no trade. That by this contract McCaskill, on the one hand, assumed the burden of making such full and complete examination of the property as he might desire, and upon the result of his examination proving satisfactory or unsatisfactory to himself the exchange of properties determined; and on the other hand, by the terms of this contract it is shown that Munkres was unwilling to assume the responsibility of closing the deal without a personal examination of his property by McCaskill, and that if an exchange should be made the trade should depend upon McCas in his work on Fraud and Mistake (page 75), says: "If a man to whom a representation has been made knows at the time, or discovers before entering into a transaction, that the representation is false, or resorts to other means of knowledge open to him, and chooses to judge for himself in the matter, he cannot avail himself of the fact that there has been misrepresentation, or say that he has acted on the faith of the representation. Where, accordingly, an iron company had sent some of their directors for the express purpose of verifying the representations of a man respecting his works, who expressed their satisfaction with the proofs produced, it was held that the company had, by choosing to judge for themselves in the matter, precluded themselves from being able to say that they had been deceived by the representations of the vendor, and that it was their own fault if they had not availed themselves of all the knowledge, or means of knowledge, open to them. So, also, where a man had, before purchasing shares in a mine, visited the mine and examined into its condition, it was held that he had not relied on representations made to him by the vendor, and was not entitled to avoid the contract, on the ground that they were false, the alleged misstatements being such as he was competent to detect. kill's personal knowledge from examination | plete examination of the property. Mr. Kerr, of the property. In other words, the parties by express contract agreed that the sale, if made, should depend upon an examination to the satisfaction of McCaskill, and having thus contracted upon condition, after examination of the property made by McCaskill, and contract completed by the execution and exchange of title deeds, he cannot now be heard to say he had the right to rely upon the representations of Munkres, and did rely upon them to his injury. We are impressed with the force of this argument. As has been seen, it is not sufficient to avoid a conveyance in equity to show that false representations in a material matter were made by the vendor and acted upon by the vendee to his injury in ignorance of their falsity, but the false representations made must be the very ground upon which the transaction took place. The vendee must not only have reason to believe the representations made were true, but also have the right to rely upon their being true, and so rely. In the case at bar, that McCaskill may say he relied upon the representations made by Munkres he must show he had the right to rely upon such representations. The contract which he pleads in express terms states: "This trade is subject to an investigation of the Munkres land by McCaskill, and the above agreement is made as an outline for said trade, provided that the Munkres land is satisfactory to McCaskill." Can it be said in the face of this agreement that McCaskill relied upon the representations made by Munkres, and not upon his own examination? Can it be argued he had the right to rely upon representations made by Munkres when he expressly contracted that the trade should not be binding upon the parties until he had examined and was satisfied with the Munkres land? And can it be urged that the representations of Munkres, and not his own personal examination, was the very ground upon which the trade was closed, when the contract provides the contrary? Although the authorities are not in entire harmony upon this proposition, yet we think the correct rule deducible therefrom is, a vendee may safely rely upon the truth of positive, material representations made by the vendor to induce the trade, and which do in fact induce the trade, where the vendee does not know and has not an equal opportunity of knowing or ascertaining the truth or falsity of such representations; but where it is expressly agreed that the vendee shall examine the property to satisfy himself, or undertakes to examine for the purpose of determining for himself the truth or falsity of the representations made by the vendor concerning it, and the advisability of making the trade, he thus assumes the responsibility of acting upon his own judgment, and not upon the information imparted to him by the vendor, and in such case the vendor is liable only in case of some fraud practiced upou the vendee to prevent a full, fair, and com | 'Cases,' said Lord Langdale, in Clapham v. Shilleto, 'frequently occur in which, upon entering into contracts, misrepresentations made by one party have not been in any degree relied upon by the other. If the party to whom the representations were made himself resorted to the proper means of verification before entering into the contract, it may appear that he relied on the results of his own investigation and inquiry, and not upon the representations made to him by the other party.'" In the case of De Milt v. Hill, 89 Hun, 56, 34 N. Y. Supp. 1000, it is held: "Representations of a grantor which will entitle a grantee to relief in equity must be of such a character that the purchaser has no means of discovering their falsity. In fact, it has come to be a legal maxim that knowledge will be imputed to him who is able to inquire into a known thing. A court of equity will refuse its aid to those who, by their own negligence, have incurred the loss or suffered inconvenience. If a party does not avail himself of the knowledge within his reach, he will never be entitled to the aid of equity." The author of 14 Am. & Eng. Enc. Law (2d Ed.) p. 117, gives the reason for the doctrine as follows: "This doctrine is not based upon any consideration for the party who has been guilty of the false representations, but upon the ground that public policy requires that persons shall be required to exercise at least ordinary prudence in their business dealings, instead of calling upon the courts to relieve them from the consequences of their inattention and negligence." In the case of Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678, it is said by Mr. Justice Lamar: "It is essential that the defendant's representations should have been acted on by complainant, to his injury. Where the purchaser undertakes to make investigations of his own, and the vendor does nothing to prevent his investigation from being as full as he chooses to make it, the purchaser cannot afterwards allege that the vendor made misrepresentations,"citing Attwood v. Small, 6 Clark & F. 232; Jennings v. Broughton, 5 De Gex, M. & G. 126; Tuck v. Downing, 76 Ill. 71. In Farrar v. Churchill, supra, Mr. Chief Justice Fuller says: "If the purchaser investigates for himself, and nothing is done to prevent his invesgation from being as full as he chooses, he cannot say that he relied on the vendor's representations." The precise proposition stated received the consideration of the supreme court of Wisconsin in Farr v. Peterson, 91 Wis. 182, 64 N. W. 863, where it is held: "One who is induced to purchase a farm by false and fraudulent representations of the vendor as to its value and the amount of hay produced on it, cannot recover damages therefor if, in the exercise of ordinary care and prudence, he ought not, under the circumstances, to have relied upon the representations made to him or have accepted them as true without doing more than he did to ascertain their truth or falsity." The case of Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, is relied upon by counsel for defendants in error as opposed to the foregoing doctrine and as decisive of this case. In that case, however, upon it being admitted that Speed had visited the farm before his purchase, the trial court refused to receive any evidence in support of his allegations of fraudulent representations. This was held error. In that case it was alleged Hollingsworth falsely stated the price at which the pasture land on the place was rented. This fact could not be determined by an examination of the property. It was also expressly alleged that false representations were made as to the quantity of bottom land on the farm; that Speed implicitly relied upon the representations made, and not his own judgment; that Speed was not a farmer, and could not determine by an examination the truth or falsity of such statements for himself, and that Hollingsworth and his agents well knew this fact. It was not shown in that case that any agreement existed between the parties that Speed undertook to examine the property to satisfy himself of the truth or falsity of the representations made concerning it, or the advisability of making the purchase. The purpose of his visit to the farm, or the conditions and circumstances under which this visit was made, were not shown. In the case at bar we are not left in doubt as to whether the making of the trade depended upon McCaskill's reliance upon the representations made by Munkres or upon the examination made by McCaskill proving satisfactory. The contract existing between the parties provided for such examination, and expressly made the trade conditional upon such examination proving satisfactory to McCaskill. As the case was determined upon a wrong theory of the law, and as the evidence of McCaskill, a witness in his own behalf, tends more to proof of negligence on his part in making the examination of the property than upon any fraud practiced by Munkres to prevent a full and fair examination of the property, or to induce McCaskill to refrain from such examination, we are of the opinion a retrial must be ordered. It is again urged that upon the trial a copy of a plat of "Cat Island" certified by the county surveyor of Andrews county, Mo.. was received in evidence, and that the reception of this evidence is error. This copy from a plat of the original survey tended to show by inspection the course of the river and situation of the land with reference thereto, to which the deed of Munkres appears to conform. The deposition of the county surveyor was taken, and another plat, made at the instance of McCaskill from a survey of the property shortly after the trade was made, was properly proven and received in evidence. This plat showed, by inspection, portions of the land conveyed covered by the river. The court was thus enabled by an examination and comparison of the two plats to determine the extent of loss of land by change in the bed of the river. From this it will be seen that upon a showing being made that Munkres knew and falsely represented the facts in regard to such change in the condition of the land, and that McCaskill did not know and could not ascertain this fact from his examination of the property, the evidence received becomes material. Hence the only remaining question is, was the proof offered sufficient to authorize the reception of this evidence? This plat is a foreign document, and not the record of a foreign court. What the law of the state of Missouri is as to requiring such survey to be made or record thereof kept was not proven. What the laws of the state are as to the manner of authenticating such plats as evidenced in the courts of that state, or whether the authentication made in this case is sufficient to entitle the copy in question to be received in evidence in the courts of that state, we are not advised. We are of the opinion that our statute law does not provide for the authentication of such a foreign document, in the manner here attempted, for use as evidence upon a trial in the courts of this state, but that such record of a foreign state must be proven by the oath of the proper custodian to be a true and correct copy of the original on file or of record in a public office, before it will be received in evidence. The remaining question of error we have examined and are of the opinion that the deposition complained of was properly received in evidence under the circumstances of this case. It follows, the judgment must be reversed for further proceedings in conformity with the views herein expressed. All the justices concurring. (64 Kan. 515) KANSAS CITY SUBURBAN BELT RY. CO. v. HERMAN et al. (Supreme Court of Kansas, Division No. 1. March 8, 1902.) RAILROADS-NEGLIGENCE-CHILD ON TRACK INSTRUCTIONS. Where, on the trial of an action, the jury was instructed that a railway company is guilty of negligence when it runs a train within the limits of a city of the first class faster than is permitted by ordinance, still, where the jury is advised that such violation of law does not of itself render the railway company liable to one who has sustained injuries, but that, in order for the jury to so find, it must appear by a preponderance of the evidence that such injuries "were the direct and proximate result of the rate of speed at which the train was traveling," the instructions, construed together, are not erroneous. (Syllabus by the Court.) Error from court of appeals, Northern department, Western division. Action by Andrew Herman, a minor, by his next friend, Martin Herman, against the Kansas City Suburban Belt Railway Company and the Union Terminal Railway Company. Judginent for plaintiff against the Kansas City Suburban Belt Railway Company, and it brings error. Affirmed. Argued before DOSTER, C. J., and JOHNSTON, ELLIS, and POLLOCK, JJ. Miller, Buchan & Morris and Lathrop, Morrow, Fox & Moore, for plaintiff in error. Silas Porter and W. B. Sutton, for defendants in error. Lathrop, Morrow, Fox & Moore, for defendant in error Union Terminal Ry. Co. ELLIS, J. This action was originally brought against the Kansas City Suburban Belt Railway Company, a Missouri corporation, and the Union Terminal Railway Company, a Kansas corporation, by Andrew Herman, a minor, by his next friend, to recover $10,000 damages for an injury to the plaintiff, a child four years of age, by reason of the alleged negligence of the defendants. On the day the summons was returnable, the defendant Belt Company filed its petition and bond for a removal of the cause to the United States circuit court on the ground of diversity of citizenship between the plaintiff and that company, and because the controversy between the plaintiff and said compaay was separable from the controversy between the plaintiff and the Union Terminal Company. The court denied the application for removal. Thereafter the cause was tried at the September, 1898, term of the court o common pleas. At the close of plaintiff's testimony the Union Terminal Railway Company interposed a demurrer to the evidence, which the court sustained. The Belt Company thereupon, and before any other proceedings were had in the case, filed another petition and bond for removal to the United States circuit court on the ground of diversity of citizenship between the plaintiff and defendant; alleging the filing of the former petition for removal, and the fact that the demurrer of the Union Terminal Railway Company had been sustained, and further alleging that not only was no evidence offered or attempted to be offered by plaintiff to show a cause of action against the Union Terminal Company, but that the latter company had been joined with the Belt Company for the sole purpose of preventing a removal of the cause to the United States court, and that no proper attempt was made to show any cause of action against it. Plaintiff filed what his counsel called an "answer to the petition for removal," alleging good faith in joining the two railways as defendants, and setting forth, in substance, that the counsel for the respective railway companies had promised to produce certain documents and papers in court, which counsel for plaintiff below contended would have shown liability on the part of both of said railway companies towards his client, but that, after relying upon the good faith of counsel to produce such papers and records, at the last moment, and during the trial, counsel had violated such promise, and refused to produce them, for which reason, it was claimed, the plaintiff had been deprived of material evidence. This so-called answer was properly verified by counsel for plaintiff below, and thereupon the court again denied the right of removal to the Belt Railway Company, to which the latter excepted. The trial proceeded, and resulted in a disagreement of the jury. At the ensuing February term of court, the plaintiff, on leave granted, filed an amended petition against the Belt Company, reducing the amount of damages claimed to $1,999, upon which issues were joined, and the cause tried during the May term following. The jurisdiction of this court to hear and determine the case is challenged upon the ground that the second application for removal to the United States circuit court ought to have been granted, for which reason the case must be here treated as though it had in fact been removed to the federal court. In support of this contention the case of Powers v. Railroad Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, is cited as authority. The following is quoted from the opinion: "In the case at bar, the second petition for removal, as presented to the state court, alleged that the petitioner was a citizen of the states of Virginia and West Vir ginia; that the plaintiff was a citizen of Kentucky; that Evans and Hickey had been fraudulently and improperly joined as defendants for the purpose of defeating the petitioner's right of removal; that, because * * of their joinder, the cause had been remanded to the state court; and that the action, having been discontinued against them, was. now, for the first time, binding against the petitioner alone. * It was thus made to appear upon the record of the state court that the case could not have been removed before, and that it had now become in its nature removable, by reason of the diverse citizenship of the parties. Such being the case, it was rightly removed, by the second petition for removal, into the circuit court of the United States." It will be observed that in that case the plaintiff voluntarily dismissed his action against those defendants whose relationship to the action afforded the only impediment to a removal of the cause into the United States court. In the later case of Whitcomb v. Smithson, 175 U. S. 635, 20 Sup. Ct. 248, 44 L. Ed. 303, suit was brought against two railroad companies to recover for personal injuries sustained by an employé of one of them, and, after the evidence had all been taken at the trial, the court sustained a motion to instruct the jury to return a verdict on behalf of one of the railroad companies because the evidence did not sustain the allegations of the complaint as to the negligence of that defendant; and thereupon the remaining defendant, alleging diverse citizenship, immediately filed a petition and bond for removal of the cause to the United States court, which was denied. Referring to the motion to instruct the jury, the court, speaking through Mr. Chief Justice Fuller, said: "This was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent; and the trial court rightly held that it did not operate to make the cause then removable, and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them." We regard that decision as decisive of this case. It having been made to appear prima facie that the railway companies originally made party defendants were not joined for the fraudulent purpose of preventing a removal, the sustaining of the demurrer to the evidence as to the Kansas corporation, without the 'consent of plaintiff below, and against his desire and interest, did not render the cause removable. The Belt Company does a mere switching and transfer business for the different roads entering Kansas City. It runs no trains of its own, but merely handles and transfers cars for other railroads which it intersects in and about the city. The accident happened a few feet south of Central avenue, near the west bank of the Kansas river, in Kansas City, Kan. Central avenue runs east and west, and upon the line of that street a bridge spans the river, which at that point flows in a northerly direction, and the railway runs nearly parallel with the river. About 225 feet north of the north line of Central avenue a switch track leads west out of the main track of the railway, and extends southward across Central avenue, and parallel with the main track. Some distance south of the avenue is a private switch track, owned by the Metropolitan Street Railway Company, which connects with the switch track just mentioned, and lies west of it. On the day of the accident this Metropolitan switch track was open, so that cars coming south down the main switch, or switch occupied by the Belt Company, could pass, without obstruction, onto the Metropolitan track. Upon the latter track stood a coal car. The plaintiff and another boy about his age had passed from Central avenue southward, and were following a beaten path used for travel along the Metropolitan track, when a train of 27 cars backed rapidly from the north; and, when the rear end of the train arrived at the switch north of Central avenue, the first or rear car remained on the main line, the second was derailed, and most of the others turned in upon the switch track of the railway company, and ran with considerable velocity toward the open Metropolitan switch. An employé in the power house of the Metropolitan Company, seeing the boys and realizing their danger, shouted at them; and plaintiff's companion ran to a place of safety, while plaintiff, who was probably out of danger when given the warning, ran upon the Metropolitan track south of the coal car, which, being struck by the train, started violently forward, and ran over him, cutting off his foot. The allegations of negligence contained in the petition which were finally submitted by the court to the jury, as contended for on the part of the plaintiff, were five in number, and are as follows: "(1) That said train of cars was traveling faster than six miles per hour, in violation of Ordinance 2536 of the city of Kansas City, Kansas. (2) That there were not enough men in proper places on said train, to communicate stop signals with reasonable promptness to the engineer who was in charge of the locomotive of said train. (3) That under the circumstances of this case, and the rate of speed at which said train of cars was traveling, the brakes on the cars of said train should have been connected with the locomotive. (4) That the trainmen who were operating said train did not observe that the switch connecting the side track with the main track was not in a safe and proper condition for the passing of trains over it when they reached said switch with said train, and not immediately stopping said train. (5) That the main-line switch was not kept securely locked and fastened." Of these, the second was waived by counsel for plaintiff below upon the argument. The instructions given upon these several claims of negligence were in substantial conformity with rules hitherto approved by this court, and appear to us to be free from material error, although objections are urged against each |