property was set on fire and destroyed through [ cinders thrown from a locomotive, the atthe negligence of the defendant. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1730-1732, 1734-1736; Dec. Dig. 482.] LIMITING 2. TRIAL 207- ADMISSIBILITY [Ed. Note.-For other cases, see Trial, Cent. Special findings of the jury, which are challenged, are held to be supported by the evidence in the case. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1730-1732, 1734–1736; Dec. Dig. 482.] Appeal from District Court, Ford County. Action by Josephus Minor against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiff, defendant appeals. Affirmed. W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, and William Osmond, of Great Bend, for appellant. Carl Van Riper, of Dodge City, and Foulke, Matson & Wall and H. E. Snyder, all of Wichita, for appellee. JOHNSTON, C. J. Josephus Minor asked for and obtained a judgment against the Atchison, Topeka & Santa Fé Railway Company for damages for the burning and destruction of a barn and other property alleged to have been set on fire by the defendant in the operation of its railroad. mospheric conditions existing at the time, and the velocity of the wind materially affect the fire-carrying quality of sparks and cinders. Under the testimony it cannot be said to be an impossibility for igniting sparks and cinders to be carried the distance mentioned. The plaintiff must therefore be regarded as showing a prima facie case showing that the fire was the result of the defendant's negligence. Tuttle v. Railway Co., 86 Kan. 28, 119 Pac. 370. There was testimony in the case to the effect that about the time in question live sparks and cinders were carried more than 500 feet. Another witness stated that after the barn was burned, and shortly after the train passed, fire of 600 feet from the track; while another was set on the plaintiff's premises a distance witness stated that he observed sparks from a passing train falling near the site of the barn when the wind was blowing about 20 miles an hour. One witness said that the locomotive of the train which passed just before the fire was started was throwing out black smoke as if the fireman had just been putting coal in the fire box. The testimony tended to show that there was no other source from which the fire might have originated. Some testimony tended to show a defect in the locomotive which passed about the time of the fire. Under our decisions it must be held that a prima facie case against the defendant was made, and that no error was committed in overruling the defendant's demurrer to the plaintiff's evidence. Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68, 1 Ann. Cas. 812; Lillard v. Railway Co., 79 Kan. 25, 98 Pac. 213; Tuttle v. Railway Co., 86 Kan. 28, 119 Pac. 370; White v. Railway Co., 91 Kan. 526, 138 Pac. 589. [2] There is a claim of error in the ruling admitting testimony as to fires set out at other times by the defendant. Some of this testimony is within the rule permitting the admission of testimony of that character in Tuttle v. Railway Co., supra, and Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156. A more complete answer to the claim of error is that the court instructed the jury that all testimony of that character was admitted and could be considered only for the purpose of showing that live sparks from locomotives could be carried as far as the barn was from the track. So limited, the reception of the testimony could not be error, as it was undoubtedly admissible for that purpose. The testimony as to the distance that burning shingles were carried at the time of the fire was admissible for the same purpose, as well as to show the velocity of the wind. [1] The barn, which was 800 feet distant from the railroad, was filled with dry hay. The fire occurred during a very dry period, and on the day of the burning the wind was blowing at the rate of 31 miles an hour and directly from the railroad towards the barn. Fire was seen in the barn shortly after a train passed, and the jury found that it broke out about 30 minutes after the train passed. No fire was set, nor was anything burned, between the railroad and the barn, and there is a contention that the distance between the passing train and the barn was so great that it was impossible for igniting sparks to be carried from a locomotive to the barn. Attention is called to the opinion of certain authors, who argue that sparks emitted from a locomotive will ordinarily carry fire no farther than 50 feet, and under the most favorable conditions to the setting of a fire not more than 150 feet. Witnesses in the case, however, testified that igniting sparks and cinders from passing Objection is made because of the refusal trains may under certain conditions be car- of the court to admit testimony of a stateried and start a fire as great a distance as ment made by one Miller, who was called as it was from the track to the barn. It is a witness in behalf of the defendant, said well known that the size of the sparks or to be inconsistent with the testimony given For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by him on the trial. He testified that he reached Minor's place before the fire burned out and that it was about 11 o'clock Eastern time. On further examination he testified that he might have made the statement that it was about 11 o'clock Western time. The offer to show that he made that statement was refused. Assuming that it was competent for the defendant to contradict its own witness in this particular, or use the offered testimony for any purpose, it must be held under all the evidence in the case that the exclusion of the offered testimony was not material error. to be sufficient to warrant the jury in finding that the engine was defective, in that the plates were out of place, and it also appears to be sufficient to uphold the verdict and the judgment that have been rendered. After giving consideration to all of the assignments of error and the arguments thereon, we are of opinion that the judgment of the trial court should be upheld. Judgment affirmed. All the Justices concurring. (No. 20117.) ROSS et al. v. HOLMAN. (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) BILLS AND NOTES 478-ACTION ON NOTE -LEGALITY OF CONSIDERATION-PLEADING. The legality of the consideration for a note sued on is put in issue by an answer which alleges that there was no legal consideration for of which the indebtedness arose for which the the note and sets out the illegal transaction out note was given. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1522, 1523; Dec. Dig. 478.] 2. BILLS AND NOTES 537-CONSIDERATION -ILLEGAL TRANSACTION-SUBMISSION OF ISSUES EVIDENCE. [3] Error is next assigned on the refusal to set aside the special finding to the effect that the engineer did not handle the train properly, in that he undertook to make up 8 1. minutes of time in running from Howell to Dodge City, a distance of 9 miles. The negligence upon which the verdict and judgment are based is not excessive speed of the train, but it was the using of a defective engine. The train was scheduled to run this distance in 20 minutes, but it appears to have made the run in 12 minutes. It appears that the rate of speed of the train was 45 miles an hour and running at that rate in the open country can hardly be declared to be excessive or negligent. It was running faster, it is true, than the prescribed schedule; but ordinarily it is not negligence to run a train faster than the scheduled rate, when it is deemed to be necessary, and it cannot be regarded as a culpable want of care, unless some peculiar circumstances require a diminished rate of speed. It may be that the pushing of the locomotive up to the high pressure of steam, and the increased speed may have contributed somewhat to the throwing of sparks which were carried by the wind to the barn; but, as we have seen, the recovery is not based on that negligence, and if the finding were stricken from the record, there would still be sufficient support for the verdict. It is next charged that there was no support for the finding that about 30 minutes elapsed after the train passed before the fire In an action on a promissory note, where the defense is that the consideration for the tions prohibited by law, and there is evidence note was an indebtedness incurred in transactending to support that defense, it is error to refuse to give an instruction submitting that question to the jury. Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. 3. BILLS AND NOTES 537 RENDITION JUDGMENT ON PLEADINGS AND EVIDENCE. In such an action, where the evidence is conflicting, it is not error to refuse to render judgment for the defendant on the pleadings and the evidence. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. 537.] Appeal from District Court, Ellis County. Action by L. C. Ross and another, copartners, doing business as Ross & Waldo, against S. J. Holman. From judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered. J. P. Shutts, of Hays, and Ira E. Lloyd and N. F. Nourse, both of Ellsworth, for appellant. J. L. Hunt, of Topeka, and E. C. Flood, of Hays, for appellees. broke out. There was some confusion in the testimony in regard to the time of the occurrences there, due in part at least to the fact that the line of division between Central time and Mountain time is near the plaintiff's premises, and hence not all the witnesses used the same standard when speaking of time. There is testimony that the fire started in the hay inside of the barn within a few minutes after the train passed and that it burned some time before it broke through the roof of the barn. The jury in their finding probably referred to the time the fire broke through the roof of the [1] 1. One of the questions necessary to debarn, and we see no error in upholding the termine in order to reach a correct conclufinding. sion on the principal proposition is: Did the Although the testimony is slight, it appears answer put in issue the legality of the con MARSHALL, J. This is an action on a promissory note. The defense is that the note was given for debts incurred in certain transactions prohibited by law. The plaintiffs recovered judgment. The defendant appeals. sideration for the note? The answer con- | of entering into the illegal agreement, they are tains a general denial, and alleges: "Defendant admits that he executed the note sued on herein, but says there was no legal consideration for the giving of said note, and alleges the facts in regard thereto to be that during the times hereinafter stated said plaintiffs, acting as the agent of the Standard Grain & Milling Company of Kansas City, Mo., claimed to have made contracts for and on behalf of de fendant, through the said Standard Grain & Milling Company, with divers persons, whose names are unknown to defendant, for the purchase and sale of grain and other commodities, upon market reports and quotations at divers times during the years 1902, 1903, and 1904, and that said grain and other commodities by the terms of said contracts were all to be delivered at some future time. Defendant alleges that, if such contracts were ever made, it was understood by all the parties thereto, including said plaintiffs, Ross & Waldo, and the said Standard Grain & Milling Company, that it was not intended by any of the parties thereto that any grain or other commodity should be delivered under said contracts, and that neither the buyer or seller was in the possession or control of any grain or other commodity so contracted to be sold, but that it was mutually intended and understood by all the parties to each the market prices agreed to be paid and the regular market price at the time fixed by the contracts for the delivery of the commodity agreed to be sold should be paid by one party to the other; that each of said contracts should be settled and closed in no other manner, and that no grain nor other commodity should be, in fact, delivered by either party in settlement of any such contracts; that it was not a bargain for the sale of property, but only a wager on the future market price of such commodity; that on all of such contracts said plaintiffs and the Standard Grain & Milling Company received a commission. Defendant says that all of said contracts were illegal and void, and that the said plaintiffs and the said Standard Grain & Milling Company knew all the facts and circumstances surrounding each of such transactions; knew that each and all of such contracts were contrary to the form of the statute in such [cases] made and provided." of said transactions that the difference between Each of these allegations was specifically denied by the plaintiffs. Both the answer and reply were verified. Transactions of the kind described in the answer are prohibited by law. The legality of the consideration for the note was put in issue by the answer. Gen. Stat. 1909, § 5167. [2] 2. The defendant contends that the court erred in the instructions given and in refusing to give instructions requested by him. The court gave this instruction: "The defendant's transactions with the Standard Grain & Milling Company were legal and valid, unless you find from the evidence that they were purchases or sales of grain or other commodities upon telegraphic or telephone market reports and quotations, and that it was not the intention of the defendant, in pursuance of such purchases or sales, to receive or deliver such grain or other commodities, and that the person selling or agreeing to sell was not in the possession and control of such grain or other commodity." The defendant requested the court to instruct the jury that: "If the plaintiffs knew of such illegal intent, and brought or assisted in bringing the parties to such illegal contracts together for the purpose particeps criminis, and cannot recover for any loss incurred or money advanced by them in forwarding the transaction." The court refused to give the requested instruction on the ground that the matters embraced therein were not in issue. In this we think the court was mistaken. There was evidence tending to show that the note was, in greater part, given to reimburse the plaintiffs for money paid by them to the Standard Grain & Milling Company on account of losses sustained by the defendant in the purchase and sale of grain on telegraphic market reports and quotations, it not being the intention of any one to deliver or receive the grain purchased or sold; that the plaintiffs actively assisted the defendant in making these purchases and sales of grain and acted as agent, broker, or intermediary between the defendant and the Standard Grain & Milling Company; that in these transactions the plaintiffs were the guarantors of the defendant to the Standard Grain & Milling Company; and that in the final settlement of the whole matter between the plaintiffs, the Standard Grain & Milling Company, and the defendant either the note sued on, or others of which that one is a renewal, were given to the plaintiffs, who discharged the indebtedness to the Standard Grain & Milling Company. These matters, if true, were defenses under the answer, and should have been submitted to the jury for determination. Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180; Carey v. Myers, 92 Kan. 493, 141 Pac. 602; Investment Co. v. McFarlin, 93 Kan. 526, 144 Pac. 842; Grain Co. v. Elevator Co., 94 Kan. 360, 146 Pac. 1139. The instruction requested, as above set out, was not embraced in the instructions given. It should have been given. [3] 3. The defendant further contends that he was entitled to judgment on the pleadings and evidence. The pleadings put the consideration for the note in issue. The evidence on this question was conflicting. That made it necessary to submit the evidence to the jury for consideration under proper instructions. The judgment is reversed, and a new trial is ordered. All the Justices concurring. CAPITAL CITY VITRIFIED BRICK & PAV- Feb. 12, 1916.) -- (Syllabus by the Court.) APPEAL AND ERROR 671 PRESENTATION FOR REVIEW TRANSCRIPT OF EVIDENCE DISMISSAL. mission of evidence, or of questions which deTo obtain a review of rulings upon the adpend upon the evidence, a transcript of the stenographer's notes of the testimony and the proceedings at the trial should be procured and filed in the way prescribed in section 574 of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kan.) CAPITAL CITY VITRIFIED BRICK & PAV. CO. v. CONCORDIA L. CO. Civil Code (Gen. St. 1909, § 6169); and where a complete transcript has not been made and filed, and there is no agreement of counsel that the record presented contains all the evidence on any particular issue or matter, no questions arising on the evidence can be considered, and, as the only questions assigned for error in this appeal require the consideration of the evidence which has not been transcribed, the appeal must be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] Appeal from District Court, Cloud County. Action by the Capital City Vitrified Brick & Paving Company against the Concordia Lumber Company. From judgment for defendant, plaintiff appeals. Appeal dismissed. Edwin L. O'Neil, of Topeka, and Olin Hunter and H. E. Kennett, both of Concordia, for appellant. Pulsifer & Hunt, of Concordia, for appellee. JOHNSTON, C. J. The Capital City Vitrified Brick & Paving Company brought this action against the Concordia Lumber Company to recover the sum of $362.50, the contract price for a shipment of 40,000 building and 1,500 pressed brick ordered by the defendant company and shipped according to directions to Hollis, Kan., where they were intended to be used. The defendant refused to accept and use the brick upon the ground that those furnished as building brick were unfit for use and not the kind of brick that it had purchased, and the 1,500 pressed brick were so mixed with the other brick that it was impracticable to separate and use them. A counterclaim of $20 was presented in the answer by defendant to pay the loss resulting from plaintiff's breach of contract. The trial resulted in a judgment for defendant, and upon this appeal the plaintiff insists that error was committed in admitting testitimony, in refusing to submit certain interrogatories that were requested, and in the giving and refusing of instructions. To review these rulings a consideration of the evidence and the proceedings of the trial court is essential. It appears that only a part of the oral evidence has been transcribed, and the defendant insists that he is unable to test plaintiff's abstract by the transcript or make a counter abstract that will correctly present the errors assigned. It is conceded that the transcript is not complete, and the defendant asserts that vital and considerable parts of the evidence and proceedings have been omitted. It does not appear that there was any obstacle in the way of the plaintiff obtaining a complete transcript. Whether the rulings in admitting testimony, in the submission of special questions, or in instructing the jury, were material, can only be determined from an examination of the evidence. The record does not contain a stip 39 ulation that all matters material for the disposition of the errors assigned are included in the record, nor is there any agreement of counsel that the evidence is complete on any particular issue. In Typewriter Co. v. Anderson, 85 Kan. 867, 118 Pac. 879, it was said: "The Code prescribes how a record of evidence and proceedings may be preserved for use on appeal, and it is the duty of an appellant who asks a consideration of the evidence or proceedings to make them a part of the record before filing his abstract. Baker v. Readicker, 84 Kan. 489, 115 Pac. 112. Without a certified transcript or an agreement of parties as to what evidence was offered and received the court cannot consider its sufficiency or other questions arising on it." Page 868 of 85 Kan., page 879 of 118 Pac. In Readicker v. Denning, 86 Kan. 79, 119 Pac. 533, it was held that a record of the evidence is made by filing the stenographer's transcript, and the burden of doing this devolves upon the appellant, and that to obtain a review of questions depending upon the evidence the appellant must "procure and cause to be filed an official transcript of all the evidence introduced, except as the necessity therefor may be avoided by agreement of counsel, or by a statement in the transcript that it contains all the evidence on a particular matter." Page 80 of 86 Kan., page 533 of 119 Pac. The same rule was applied in Davidson v. Timmons, 88 Kan. 553, 557, 129 Pac. 133, 135, where it was said that: "In the absence of a transcript, this court canings in the trial court, nor determine whether not settle conflicting claims as to the proceedrulings referred to in the findings of that court on such proceedings may not have been controlled by evidence, admissions or waivers not preserved in the record." In the recent case of McGuire v. Davis, 95 Kan. 486, 491, 148 Pac. 755, 756, the question was again considered, and it was said: her abstract any evidence regarded by her as "The appellant was privileged to omit from not pertinent to the questions presented. But it was incumbent upon her to have all the oral testimony preserved in a transcript, in order to ice might go for whatever additional evidence he provide an authentic source to which the appelwished to bring before the court in a counter abstract." It may be said that, if it were agreed that the testimony in the record included all that is pertinent to any question presented in the appeal, the decision must have been that the finding of the jury determined that the brick furnished were not of the particular kind that were purchased. If those furnished were not the kind contracted for, defendant was not obliged to accept them even if they were of greater value than those purchased. It appears that none of the other objections are material, but the state of the record is such that we are not warranted in entering upon their consideration. Nothing being open to review here, the appeal is dismissed. All the Justices concurring. STATE v. BERGER. (No. 20374.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. INTOXICATING LIQUORS 213 - MAINTENANCE OF LIQUOR NUISANCE-INFORMATION GROUNDS FOR QUASHING TION. sheriff who raided the premises and seized the beer and liquor paraphernalia found in the nuisance therein maintained. [1] 1. The statute forbids the quashing of which does not tend to prejudice the suban information for any defect or imperfection MISDESCRIP-stantial rights of the defendant on the merits. Cr. Code, § 110, subdiv. 7 (Gen. St. 1909, An information charged the maintenance of a nuisance in a frame building on a location suf- § 6686). It is not conceivable that the misficiently described. The amended information | description of the materials out of which the recited that the nuisance was maintained in a building was made could prejudice the rights concrete building, the location being exactly the of the defendant. The motion to quash was same. Held, that the misdescription of the materials out of which the building was constructed properly overruled. did not prejudice the defendant's rights and the quashing of the amended information under such circumstances was forbidden by subdivision 7 of section 110 of the Criminal Code (Gen. St. 1909, § 6686). [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 255-257; Dec. Dig. 213.] 2. CRIMINAL LAW MENT-DEMURRER. 280-PLEA IN ABATE [2] 2. The plea in abatement alleged that the place described in the amended information was a separate and distinct place from that named in the original information, and not the place which the county attorney had in mind when he filed the original information. This plea contradicted the record, and the demurrer was therefore properly sus A demurrer to a plea in abatement is prop-tained. Lester v. State, 91 Wis. 249, 64 N. erly sustained when the facts alleged in the plea contradict the record. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 645-651; Dec. Dig. 280.] 3. INTOXICATING LIQUORS 230 MAINTENANCE OF LIQUOR NUISANCE-EVIDENCE. Where the defense was that the place where the alleged nuisance was being maintained was only a lodgeroom where the members occasionally had a keg of beer on tap, the evidence of the officer serving the war rant, which showed the situation of the premises, the crowd, the liquors, and paraphernalia of the place, and the presence of the defendant and his acts, was competent, although the information may have been filed the day before the officer served the warrant. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. 230.] 4. INTOXICATING LIQUORS 230 MAINTENANCE OF LIQUOR NUISANCE EVIDENCE. The case of Topeka y. Chesney, 66 Kan. 480, 71 Pac. 843, distinguished. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. 230.] Appeal from District Court, Cherokee County. Jules Berger was convicted of maintaining a common nuisance, and appeals. Affirmed. A. L. Majors and C. B. Skidmore, both of Columbus, for appellant. S. M. Brewster, Atty. Gen., and F. W. Boss, of Columbus, for the State. DAWSON, J. The appellant was convicted of maintaining a common nuisance, and appeals. The original information and the warrant issued thereon recited that the nuisance maintained by the defendant was located in a "one-story frame building, situated," etc. Before trial, an amended information was filed in which the word "concrete" was substituted for the word "frame." The defendant complains because the court overruled his motion to quash, sustained a demurrer to his plea in abatement, and overruled his motion to strike out the testimony of the W. 850; 12 Cyc. 356. [3, 4] 3. The sheriff testified that he received the warrant on April 9, 1915, and the same evening or the next evening he went to the place described in the information, but it was a concrete, and not a frame, building, and found it inclosed with a high-board fence. He found and seized some liquors, glasses, etc., and arrested the defendant, whom he found behind the counter serving beer to persons present. The sheriff was critically cross-examined on the point as to whether the location of the place was in accordance with the location described in his warrant. But this evidence is said to be incompetent to prove that a nuisance was being conducted at the place at the time of the filing of the information, which was on the preceding day. And the case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, is relied on to support this contention. In that case the evidence related to the condition of the place five days after the date of the offense and three days after the filing of the complaint. But it is well established by our decisions that it is competent to show the officer's seizure of the liquors and liquor paraphernalia at the place charged in the information. State v. O'Connor, 3 Kan. App. 594, 43 Pac. 859; State v. Stockman, 9 Kan. App. 422, 58 Pac. 1034; State v. Schoenthaler, 63 Kan. 148, 65 Pac. 235; State v. Giroux, 75 Kan. 696, 90 Pac. 249. And such evidence is competent even if the officer proceeded without a warrant. State v. Schmidt, 71 Kan. 862, 80 Pac. 918. The state justly contends that the appellant has not brought up all the evidence, and that the chief defense was that the building was the meeting place of a lodge and the beer drinking a mere social affair. Even the scant record brought here indicates that that question was involved, and that fact was sought to be developed by defendant's crossexamination of the sheriff. Moreover, it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |