"Is he [the agent] now in debt to you? No. 1 only against losses occasioned by larceny or If so, state amount and nature of such indebted- embezzlement. The issue referred to was ness. No." therefore in the case, and it does not appear to have been so presented as to be the occasion of any prejudice. At the time the company had advanced to the agent $50 to enable him to pay his way until returns from the business should begin to come in, he to repay it out of his share of the proceeds; and this amount was charged against him on the books of the company. The defendant maintained that the answer to the first question quoted was untrue, and that it was thereby relieved from liability. The court instructed the jury in effect that if the answer was false and had been made in bad faith, the bond could not be enforced, owing to certain of its provisions not necessary now to be stated. The plaintiff complains of the instruction on the ground that under the circumstances shown the $50 advanced to the agent did not constitute a debt, and that there was no evidence of any bad faith in the answer that was made. We think the evidence justified allowing the jury to determine whether or not the $50 transaction was of such a character that it should have been mentioned in answer to the question, and whether or not under all the circumstances the failure to mention it proceeded from a want of good faith. Upon the whole record, as will appear from what is hereinafter said, it seems very unlikely that the verdict was affected by this matter. [4] 4. The jury were told that the burden of proof was on the plaintiff to prove its right to recover by a preponderance of the evidence. This is objected to apparently on the ground that as to some of the specific issues the burden was on the defendant. The instruction given was true as a general statement. If a more specific direction had been asked, a different question would be presented. Criticism is made of the verification of the answer. It seems sufficient, but no reason is suggested why any verification was necessary. [5] 5. The evidence showed that the insurance company from time to time advanced to its agent different sums, amounting in all to $440, which were charged against him on the books. His arrangement with the company was that he should cover a definite territory, soliciting business, writing insurance and collecting premiums. He was authorized to retain 20 per cent. from each premium collected, from which he was to pay all his expenses, including the charges of subagents, the residue to be his compensation for his services. As the agent made reports of business done he was charged with the premiums [2] 2. Among other defenses, the defend- collected (less his 20 per cent. deduction) and ant presented the claim that in making a as he made remittances they were credited to statement to it of the amount of the agent's him on the general balance, being applied to alleged shortage it had willfully suppressed his indebtedness arising from the advancethe fact that the amount charged against ments made to him, as well as to the charges him included the sum of $440, advanced to for premiums collected. The plaintiff claimhim by the plaintiff. In a separate defense ed this practice to have been authorized by the same allegation is repeated, except that the agent, under his agreement with the comthe money is said to have been advanced by pany, but the jury specifically found to the the plaintiff's secretary. The plaintiff con- contrary. The plaintiff also contended that tends that the defenses were inconsistent, the agent had assigned his share of the and complains of the refusal of the court to premiums collected, to secure the payment of require the defendant to elect between them, the money advanced him, and this issue was and of the admission of evidence with regard submitted to the jury in such a way that to the advancing of money by the secretary. their general verdict must be deemed to inThere is a conflict of authority as to how far clude a finding against the contention. The inconsistent defenses may be united in an an- remittances of the agent amounted to more swer. Fetzer v. Williams, 80 Kan. 554, 103 than 80 per cent. of the premiums collected, Pac. 77. Whatever inconsistency there may and he was made to appear in default in that be in the two defenses referred to is not ob- respect only by applying to his indebtedness, jectionable. The defendant, instead of plead-growing out of the sums advanced to him, a ing in one count that the money was advanced by either the company or its secretary, presented one theory in one count and the other in another. The effect was much the same. The facts lay peculiarly within the knowledge of the plaintiff, and it was in no way prejudiced by the denial of its motion to require the defendant to elect. [3] 3. The court in its charge referred to the question whether the agent was guilty of embezzlement as one of the issues. Complaint is made of this on the ground that it tended to confuse the jury and create the impression that the agent was on trial. The part of the amounts he remitted. The plaintiff invokes the rules that the creditor may determine what application shall be made of payments by a debtor who omits to give any directions in that regard. That principle does not apply here because the surety company had not guaranteed the payment of the agent's debts. It merely had undertaken to indemnify his employer against loss by his larceny or embezzlement. The bond specifically provided that the surety should not be liable "for any loans or advances made by the employer to the employé for any purpose." We approve the view of the trial the company 80 per cent. of each premium | ticulars demanded judgment for more than collected, no liability arose under the bond. $300, and that neither the justice court nor His failure to repay the advances made, out the district court had jurisdiction of the of his share of the premiums, was a mere cause. There is a statement in the abstract breach of contract. The bonding company that the same application was made and deguaranteed only his observance of the crim- nied in the justice court. This is challenged inal law, not the civil. in the counter abstract. The district court overruled the motion to dismiss, and on the trial of the case judgment was rendered against the defendant for $300 and costs. The effect given to a mistake made by a witness, while testifying to the contents of a record he was then examining, has led to an apparent controversy concerning the fact in that regard. The matter had no important bearing on the decision of the case. Whatever misunderstanding existed was obviously due to inadvertence, and has been cleared up. The judgment is affirmed. All the Justices concurring. (No. 19884.) WEBSTER v. BROEKER. (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) JUSTICES OF THE PEACE 44 JURISDICTION -AMOUNT INVOLVED-PLEADING. In an action before a justice the bill of particulars stated a cause of action for the recovery of $300; the prayer asked judgment for that sum, with interest from the day the action was begun; judgment was rendered for $300. Held, that the prayer was no part of the statement of the cause of action, that the amount sued for was $300, and that the justice court and the district court on appeal had jurisdiction. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. ~~44.] Appeal from District Court, County. Douglas Action by J. C. Webster against Herman Broeker. From judgment for plaintiff, defendant appeals. Affirmed. Thomas Harley and R. E. Melvin, both of Lawrence, for appellant. Fred A. Clarke, of Lawrence, for appellee. PORTER, J. In this case the only question is whether the justice court and the district court, where the case was appealed, had jurisdiction, and this depends upon what sum the plaintiff sued for in the justice court. The bill of particulars alleged that defendant owed plaintiff $300 for failure to perform a written agreement; that demand had been made for that sum and defendant had refused to pay the same. In the prayer for relief the plaintiff prayed judgment for $300 "together with interest thereon at the rate of 6 per cent. per annum from the 8th day of October, 1913, and for costs of suit." The action was begun in a justice court on the 8th day of October, 1913, and the summons was personally served on the defendant the same day. On December 28, 1913, the court rendered judgment in plaintiff's favor for $300, with interest from the date of the judgment and for costs. The defendant appealed to the district court and filed a motion to dismiss on the ground that the bill of par It is stated in the bill of particulars that the defendant is owing the plaintiff the sum of $300, and unless the prayer for relief is considered a controlling part of the statement of the cause of action, it is clear that the plaintiff claimed no more. The mandate in the Code of Civil Procedure which requires that "its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice" (section 2 [Gen. St. 1909, § 5595]), applies to actions before justices where formal pleadings are not necessary. Wooster v. McKinley, 1 Kan. 317. It would be quite technical to hold that when the action was commenced the plaintiff claimed there was more than $300 due. In Smith v. Kimball, 36 Kan. 474, 493, 13 Pac. 801, 812, it was said: "However strongly a pleader may be bound, and however much he may be estopped by the averments of facts in the body of his pleadings, it is doubtful whether he is bound or estopped by his prayer for relief. He is supposed to know the facts upon which he predicated his action, and to state them as he understands them, but the relief to which he is entitled on the facts related is a question for the court, and over which he has no control." A per curiam opinion in John Smith v. Dora Smith, 67 Kan. 841, 73 Pac. 56, contains the following inaccurate statement: of the petition forms no part of it, and that re"It is well settled in this state that the prayer lief may be granted in accordance with the facts stated in the petition, rather than pursuant to its prayer." * * The prayer for relief is a part of the petition or bill of particulars and a necessary part. In enumerating what the petition must contain, the language of section 92 of the Code (Gen. St. 1909, § 5685) is: "Third, a demand of the relief to which the party supposes himself entitled. While the prayer is a necessary part of the petition, it is not a part of the statement of the cause of action. A pleader may suppose himself entitled to other and different relief than the facts stating his cause of action warrant, and may ask for such relief, but in determining the question of the jurisdiction of the court it is the cause of action stated, and not the relief prayed for, which controls. The statement in the opinion in John Smith v. Dora Smith, supra, that "it is well settled in this state that the prayer of the petition forms no part of it" was not necessary to the decision in that case, was obiter, and should be overruled. The case at bar is controlled by the decision in Parker v. Dobson, 78 Kan. 62, 96 Pac. 472, the second paragraph of the syllabus of which reads: "If in an action before a justice of the peace upon a promissory note the amount claimed in the bill of particulars do not exceed $300, the justice, or the district court upon appeal, may adjudicate the controversy, although the interest accruing before final judgment increase the amount due to more than $300; but whatever the balance found due may be the judgment cannot exceed $300." The plaintiff elected to accept judgment for the amount within the jurisdiction of the court. The action was to recover no more than $300, and therefore the judgment is affirmed. All the Justices concurring. The intention of voters casting certain ballots at a school district bond election ascertained and declared from the words and marks on the ballots. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 224–232; Dec. Dig. 97.] 111 3. SCHOOLS AND SCHOOL DISTRICTS ISSUANCE OF BONDS-INJUNCTION. Whether or not a taxpayer of a school district may contest an election erroneously declared to have resulted favorably to the issuing of bonds, he may invoke the remedy afforded by section 265 of the Civil Code (Gen. St. 1909, § 5859) to prevent the bonds from being issued. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. 111.] 4. APPEAL AND ERROR 1011-FINDING OF FACT-CONFLICTING EVIDENCE. A finding by the trial court that a proposition to change the site of the schoolhouse duly carried at a school district election held to determine the matter approved. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.] Appeal from District Court, Shawnee County; A. W. Dana, Judge. Action by John V. Abrahams and others against School District No. 33 and others. From a judgment for defendants, plaintiffs appeal. Reversed in part, and affirmed in part. A. M. Harvey and J. E. Addington, both of Topeka, for appellants. Robert Stone and Geo. T. McDermott, both of Topeka, for appellees. [1, 2] If the first ballot be counted for and the other two be counted against the bonds, the proposition did not carry. The defendants claim the Australian ballot law applies to the conduct of school district bond elections, and they interpret the ballots according to that law. The statutes involved contain provisions indicating that the Australian ballot law governs, and that it does not govern. The general practice, of which the Legislature certainly is cognizant, has been to ignore the law. It was ignored in the present instance. Without entering upon an extended discussion of the subject, it is sufficient to say that the court is of the opinion the Australian ballot law does not apply to school district bond elections. If this were not so, the ballots used in the bond election were not in the form prescribed by the Australian ballot law, and other material features of that law were disregarded in holding the election. The question then is: What was the intention of the voters casting the ballots which the canvassing board rejected? The first ballot was cast for the bonds. The Word "No" written on the second ballot is a word of opposition used with reference to the proposition to vote bonds, and the ballot should be counted against the bonds. The third ballot was also cast against the bonds. The result is the proposition to vote bonds failed to carry. [3] It is said that the plaintiffs had a remedy by way of contest of the election. If so, the remedy was not exclusive of that afforded the plaintiffs as taxpayers by section 265 of the Civil Code (Gen. St. 1909, § 5859). The judgment of the district court with reference to issuing bonds is reversed, and the cause is remanded, with direction to enter judgment for the plaintiffs. [4] It is said the proposition to change the site of the schoolhouse did not carry at the election held to determine the matter. The solution of this question depends upon the application of well-understood principles of law to oral testimony which was conflicting in some particulars, and which the trial court was better able to estimate. Taking the testimony as it is found in the record, however, this court concludes that the proposition carried. The judgment of the district court with reference to changing the schoolhouse site is affirmed. All the Justices concurring. policy and for an attorney fee. A supplemental application by the defendant for subrogation was denied. The defendant appeals. The policy was issued to the owner of the property involved. Loss was made payable for the assured's account to the plaintiff as mortgagee under a mortgage clause attached to the policy, which reads in part as follows: "It is agreed that whenever this company shall pay the mortgagee any sum for loss under this policy and shall claim that as to the grantors in the mortgage, or owners, no liability therefor existed, it shall at once be legally subrogated to all the rights of the mortgagee under all the securities held as collateral to the debt secured MERRIAM MORTGAGE CO. v. ST. PAUL by the mortgage, to the extent of such payFIRE & MARINE INS. CO. (No. 19701.) ments. Or at its option may pay to the mortgagee the whole principal due or to become due (Supreme Court of Kansas. Feb. 12, 1916.) upon the note or bond, and mortgage securing (Syllabus by the Court.) 1. APPEAL AND ERROR 158-RIGHT TO APPEAL-WAIVER-PAYMENT OF JUDGMENT. One who voluntarily pays a judgment rendered against him by a district court cannot question the justice or validity of the judgment by subsequent appeal to this court. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 973-975, 977; Dec. Dig. 158.] 2. ELECTION OF REMEDIES SUBROGATION-INSURANCE. the same, and shall thereupon receive a full assignment and transfer of the mortgage, without recourse, and all other securities held as collateral to the debt; but no such subrogation shall impair the right of the mortgagee to first recover the full amount of their claim." [1] The cause was submitted on a demurrer to the petition and a stipulation covering certain facts. Judgment was rendered on February 21, 1914, which the defendant paid on April 8, 1914. The appeal was taken on 7-ESTOPPEL-August 19, 1914. The defendant assigns as error the rendition of judgment in favor of the plaintiff, and makes an extended argument against the plaintiff's right to recover. Having voluntarily paid the judgment the defendant cannot now question its justice or validity. Seaverns v. State, 76 Kan. 920, 93 Pac. 163; State v. Massa, 90 Kan. 129, 132 Pac. 1182. In the Seaverns Case previous decisions of this court discussing and applying the principle involved were collated and classified. The rule that the burdens and the benefits of a contract, remedy, or course of conduct must be accepted together or renounced together applied in considering an application by an insurance company for subrogation under a mortgage clause attached to one of its policies, made after all liability on the policy had been denied and the mortgagee had been compelled to establish his right by litigating the matter to final judgment. [Ed. Note.-For other cases. see Election of Remedies, Cent. Dig. § 12; Dec. Dig. 7.] 3. INSURANCE 675-ACTION ON FIRE POLICY-ATTORNEY FEE-RIGHT TO ALLOW. Under sections 4262 and 4263 of the General Statutes of 1909, the court, in rendering judgment against a fire insurance company on a policy of insurance written in this state, is authorized to allow the plaintiff a reasonable sum as an attorney fee, although the policy relates to property situated in the state of Oklahoma. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1805, 1806; Dec. Dig. 675.] 4. COSTS 252-APPEAL ATTORNEY FEE. The statute referred to does not authorize this court to allow the plaintiff an attorney fee on appeal by an insurance company from a judgment rendered against it. [Ed. Note. For other cases, see Costs, Cent. Dig. § 961; Dec. Dig. 252.] Appeal from District Court, Shawnee County. Action by the Merriam Mortgage Company against the St. Paul Fire & Marine Insurance Company.. From judgment for plaintiff, defendant appeals. Affirmed. Foulke, Matson & Wall, of Wichita, for appellant. Eugene S. Quinton, of Topeka, for appellee. BURCH, J. The action was one to recover on a fire insurance policy. The plaintiff recovered judgment for the amount of the [2, 3] An attorney fee was allowed under sections 4262 and 4263 of the General Statutes of 1909, which read as follows: "This act shall apply to all policies of insurance hereafter written in this state, and also to the renewals which shall hereafter be made of all policies written in this state, and the contracts made by such policies and renewals shall be construed to be contracts made under the laws of this state. "The court in rendering judgment against any insurance company on any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney's fee, to be recovered as a part of the costs." The policy related to property situated in the state of Oklahoma, but was written in this state. Sections 4262 and 4263 of the General Statutes of 1909 are sections 3 and 4 of chapter 142 of the Laws of 1897. The act of 1897 was amendatory of chapter 102 of the Laws of 1893, entitled "An act defining the liability of fire insurance companies in certain cases." Section 1 of this act provided that the amount of insurance written in a policy covering real property in this state should be taken as the true value of the property if totally destroyed and the true amount of the loss. Section 2 made the act apply to all policies of insurance written up For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cent. Dig. §§ 146, 173, 174; Dec. Dig. on real property in this state. Section 3 pro- | substantial basis or not germane to the purposvided for attorney fees. The act of 1897 es of the act. continued the original valued policy provision, added a new subject, amended section 2 to apply not merely to policies written on real property in this state, but to all fire insurance policies written in this state, and continued the provision relating to attorney fees. The result is the policy under consideration is governed by the statute, and it is not material that the laws of Oklahoma do not provide for the allowance of attorney fees in actions on insurance policies. The application for subrogation was made under the first part of the mortgage clause quoted above. The court authorized an assignment of the securities held by the plaintiff on full payment within a stated time of the balance due on the plaintiff's note and mortgage, under the latter part of the mortgage clause. The defendant declined to comply with the court's order, and stands on its right to pro tanto subrogation. Instead of recognizing the obligation of the contract to pay the loss to the mortgagee, liability to the mortgagor being denied, the defendant repudiated that obligation and with the obligation repudiated the reciprocal contract right to pro tanto subrogation. Having compelled the plaintiff to resort to litigation and to establish liability under the policy by final judgment, the defendant cannot now reverse its attitude and demand that the amount of the judgment be taken out of the plaintiff's security. The controlling principle is that of election. The burdens and the benefits of a contract, remedy, or course of conduct must be accepted together or must be renounced together. Decisions applying to principle are collated in the opinion in the case of Ullrich v. Bigger, 81 Kan. 756, 106 Pac. 1073. Appeal from District Court, Cowley County. Action by the Atchison, Topeka & Santa Fé Railway Company against the Board of County Commissioners of the County of Cowley and others. From judgment for defendants, plaintiff appeals. Affirmed. W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant. J. A. McDermott, of Winfield, for appellees. JOHNSTON, C. J. This was an action to recover taxes paid under protest by the railway company which it alleges exceeded the amount the company was legally bound to pay. The facts relating to valuations, the levies made, the total amount paid, and the amount paid under protest were included in an agreed statement of facts, and upon these facts the trial court decided that the taxes were legal obligations of the company. In levying a tax upon property for 1908 it was provided by the Legislature, in effect, that the board of county commissioners could not impose a tax that would produce a sum of money in excess of 2 per cent. more than would have been produced by the levy of the maximum rate on the assessed valuation of the property for the year 1907. Laws Sp. Sess. 1908, c. 78, § 1. The levy authorized by that act being founded on the assessment made in 1907, it becomes important to examine the act under which the levy was made in 1907. It was competent for the Legislature to provide that the taxing officers should use the valuation of 1907 and the maximum levy authorized at that time as the basis of the assessment in 1908. Rail[4] An application is made for the allow-way Co. v. Harper County, 88 Kan. 651, 129 ance of an additional attorney fee to the plaintiff on account of the defendant's appeal. This court does not render judgment on the policy of insurance. Pac. 1165. It is contended, however, that the act of 1907 is itself invalid and afforded no legal basis for the levy of 1908. The contention is The judgment of the district court is af- that the classification in the act is arbitrary firmed. All the Justices concurring. ATCHISON, T. & S. F. RY. CO. v. BOARD et al. (No. 18803.) and unreasonable, giving it a special effect which renders it unconstitutional. It provides: "The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year in excess of the following amounts: Upon a valuation of five (Supreme Court of Kansas. Feb. 12, 1916.) million dollars and under, one per cent.; over five millions and under six millions, eight and one-half mills; over six millions and under seven millions, seven and one-half mills; over seven millions and under eight millions, six and one-half mills; over eight millions and under nine millions, five and three-fourths mills; over nine millions, one-half of one per cent.: Provided, that in counties having a population of thirty thousand or more the board of county commissioners is authorized and empowered to levy one and one-half per cent. upon the valuation when the same is seven million dollars or under: Provided further, that the electors of any county in the state, by a direct vote, may |