caused the change to be made in the channel of the stream; that he participated in platting the land; that he paid the taxes, advertised the platted lots for sale, sold lots, received payments, and gave receipts in payment for lots, directed workmen in filling the old channel and in making the new channel. The defendant's ownership could not have been settled by a peremptory instruction to the jury under this state of the evidence.

3. Nor can it be doubted that plaintiff sufficiently alleged, and that their evidence tended to prove, actionable negligence. If the new channel had been adequate to carry the flood waters, plaintiffs would not have been damaged. As the old channel flowed, their property, real and personal, would have been above, or chiefly above, the point where the waters left defendant's land. There was some evidence that the flood waters which did the damage came from another direction and not from defendant's land. That was only a question for the jury.

4. But it is said that the jury found specially that the waters which did the damage were flood waters. But as the flood waters were wont to flow before defendant changed the channel, they could do no damage to plaintiffs. When he changed the channel, he should have taken into account the capacity needed to carry off the probable volume of waters in a freshet. This, according to some of the testimony, he did not do. Nor can it be fairly said that the water was all surface water. Some of the evidence showed that the old channel, colloquially known as the "Sea Serpent," was a living stream with natural springs in its course, and that men brought their horses there for water. Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157, 10 Ann. Cas. 1044; Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034, 28 L. R. A. (N. S.) 156; Roland v. Railway Co., 82 Kan. 546, 108 Pac. 808.

WELLIVER v. CLARK. (No. 19906.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.)

1. TRIAL
TIONS.

295-HARMLESS ERROR-INSTRUC

Rule followed that when the instructions, taken as a whole, are not misleading to the jury and are fair to a party, he cannot justly complain of an inaccurate expression now and then found in such instructions.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. 295.] 2. APPEAL AND ERROR 1005-VERDICT-EXCESSIVE RECOVERY-EVIDENCE.

Evidence examined, and no basis found for holding the verdict excessive.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. 1005.]

Appeal from District Court, Sedgwick County.

Action by James Welliver against M. R. Clark. From a judgment for plaintiff, defendant appeals. Affirmed.

Dale, Amidon & Madalene, C. R. Sowers, and S. A. Buckland, all of Wichita, for appellant. Adams & Adams and E, E. Enoch, all of Wichita, for appellee.

WEST, J. The parties had a controversy over an article of household furniture, a table, which the defendant was attempting to take away from plaintiff's sister, and the defendant struck the plaintiff twice with a claw hammer, once in the face and once on the head. This action for damages followed, resulting in a judgment for $1,000. The defendant appeals, and contends that the verdict and judgment are contrary to the law and against the evidence for various reasons, amounting substantially to the complaint that the court erred in its instructions, and in its rulings on evidence, and, finally and chiefly, that the verdict was excessive.

Objection is made that the evidence did [1] The instructions were long, and, taken not warrant the jury's special finding that as a whole, very fair to the defendant, and the defendant was the "joint owner" of the he is not justified in picking out an inaccurate property. No hypercritical interpretation expression here and there for criticism. should be given to this language. Obviously The complaints covering the admission of the jury sought for a practical term to char-evidence we find to be without substantial acterize the defendant's ownership or interest basis. in the property, taking into account the fact that the fee was vested in his wife, and that under the evidence and the court's instructions the defendant also had such interest in and dominion over the property as to rise to the dignity of ownership.

[2] In presenting his views of the excessive character of the verdict, defendant's counsel in their brief say that they believe this court should render judgment for $76 compensatory damages, and that the plaintiff be required to remit the remainder, less costs. This would seem to eliminate all other questions.

Reviewing this case in full, it appears that it presents no legal difficulties whatsoever; There was evidence tending to show much it was a case which turned largely upon facts spirit and force on the part of the defendant which had to be sifted from conflicting tes- in his use of the hammer, with a result much timony; and, since the result is practically more severe and lasting than that which the free from such errors as would warrant the defendant finds from considering other testiinterference of an appellate court, the judg-mony in the case. From conflicting evidence ment must be affirmed. All the Justices con- the jury determined the amount of damages, curring. and this was approved by the trial court, and

we find in the record no sufficient basis for personal property alleged to have been condisturbing it. verted by the father and brother, and to en

The judgment is affirmed. All the Justices join them from disposing of certain personconcurring.

Plaintiff, among other things, alleged that about 1888 his parents agreed with him and his brother that in return for their support the parents would give their land to the sons, by will or otherwise; that afterwards it was agreed for each of the sons to have one-half the land; that the plaintiff took possession of his half and lived thereon as his homestead for 17 years, supporting the parents until the surviving father left the place; that such support was worth much more than the use of the land; that the father and brother had conspired to oust him therefrom and to sell the land, had converted personal property belonging to him, and were threatening to sell other property in which the plaintiff had a joint ownership. Held, error to compel him to elect to try only one of such matters, as all should have been settled in the one action.

[Ed. Note. For other cases, see Election of Remedies, Cent. Dig. § 6; Dec. Dig. 5.] 2. SPECIFIC PERFORMANCE 94 - CONTRACT TO CONVEY LAND-FAILURE OF CONSIDERATION-AGREEMENT TO SUPPORT.

al property claimed by the plaintiff. The jury found, among other things, that about 1888 the parents made an oral agreement with their sons, James and Francis, to make a will giving to each one-half of their land; that in part consideration for this agreement the sons were to support the parents during their lifetime, and were also to pay off a mortgage on the land; that afterwards an agreement was made to divide the land, James to have one-half and Francis the other, and possession was taken by the two sons, and the mortgage was paid by them from their funds; that pursuant to the first agreement a will was made, giving to each a half interest in the land subject to certain bequests to be paid by the sons, to which they consented; that James supported and cared for his parents up to October, 1910; that the father left his home by reason of the persuasion and undue influence of Fran

cis.

The plaintiff having been compelled to elect and having proceeded upon the first cause of action only, the court announced that it would dismiss the action as premature, apparently on the ground that the will Having found that the plaintiff had breach- could not take effect during the testator's ed the contract by failure to support his fa- lifetime, and hence the plaintiff was not enther and by putting him in fear of bodily harm titled to a decree. While expressing some by threats of violence and personal injury, thereby causing him to leave, the trial court dissatisfaction with one finding, it was statrightfully held him not entitled to specific per-ed that the court had decided neither to make formance.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 249-256; Dec. Dig. 94.]

3. INJUNCTION 39 OUSTER AND SALE BREACH OF CONTRACT.

But in view of the long-continued support furnished by the son and the allegations as to its value, it is held, that he has a right to enjoin ouster and the sale of the land to another until reimbursed or secured for the value of such support over the use he has had of the land.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 91, 93, 94; Dec. Dig. 39.] Appeal from District Court, Dickinson County.

Action by James P. Holland against James Holland and another. From judgment for defendants, plaintiff appeals. Modified and remanded.

See, also, 89 Kan. 730, 132 Pac. 989.

Monroe & Roark, of Topeka, for appellant. C. S. Crawford, of Abilene, and J. V. Humphrey, of Junction City, for appellees.

WEST, J. [1, 2] The plaintiff, James P. Holland, sued his father and brother to protect his possession and interest and perfect his title to certain land claimed by him in pursuance of an oral agreement with his parents by which they were to be supported by the sons and leave the land to them by will or otherwise, also to recover for certain

another nor to set that one aside. After

wards, however, the findings that the father

had not left because of James' failure to care for him properly or mistreatment, but had left on account of the influence of Francis, were set aside, and findings made by the court that James committed a breach of the oral agreement by neglecting and failing to properly care for his father, by putting him in fear of bodily harm by threats of violence and personal injury, thereby causing him to leave his home, and that the mortgage was paid from the proceeds of certain live stock owned by the father and sold by the sons. The conclusions of law were to the effect that an action for a specific performance could not be maintained during the life of the father, and that the son was not entitled thereto because he had not performed the oral agreement upon his part but had committed a breach thereof, and it was therefore adjudged that the first cause of action be dismissed for want of equity; that the plaintiff was not entitled to the injunction prayed for to restrain the disposal of the land nor to any other equitable relief, "for the reason that he has forfeited all right to any interest in or to the same by his failure to perform the oral agreement in question and by his breach of the conditions of the same."

"The inconsiderable sums which the respondent has paid for taxes on the property and interest on the mortgage, since the conveyance to him, are fully balanced by his use of the prop

Some question is made whether these findings were made by the court or by the judge in vacation, and some contention that the appeal is not timely; but from the entire show-erty." 41 Conn. 480. ing it must be held that the findings were first made a part of the journal entry by the court at the succeeding term, and that the appeal was taken in time.

"In this case the appellant had fully complied Unwith the contract for nearly two years. der this state of the case, it is not competent for the appellee to sue for and recover the entire consideration paid by him by reason of the failure of the appellant to comply with the contract for the period of nine months." 118 Ind. 66, 20 N. E. 529, 3 L. R. A. 519.

Pitts' Adm'r v. Pitts, 21 Ind. 309, was an action by a daughter against her father's estate on a note given in consideration of her living with and keeping house for him. An The plaintiff claims that his expenditures instruction to the effect that if she, without in the support of his parents amounted to sufficient cause or without his consent, left $12,000 more than the use of the land, and his service before his death, she could rethat the father, having been tolled away by cover the reasonable value of her services, the brother, is conspiring with him to sell was approved. In Vancleave v. Clark, 118 the land and oust the plaintiff therefrom, Ind. 61, 20 N. E. 527, 3 L. R. A. ̊519, a man and has even brought a forcible detainer suit contracted with another for the support of in pursuance of such purpose; that the plain- his infant daughter in his own family as tiff has occupied the land as a homestead for one of his children. After thus supporting seventeen years; that he has at all times her for some time he placed her in a counbeen willing to support his father, and in his ty asylum among common paupers, on acpetition tenders such support and a good count of her having become insane. It was and sufficient bond to secure the same. It is held that the recovery for the breach of the urged with much force that the plaintiff has contract would be the difference in value beacquired an interest in the land which equity tween the care contracted for and the care should protect, even though he may have received. It was said: been at fault in not keeping on good terms with his father. Numerous cases are cited holding, in substance, that after a long-continued execution on the part of the child such a contract may not be breached by the parent, but the feature which distinguishes this from any cited case is the express finding that the plaintiff himself breached the contract by practically driving his father away. Taking this finding as true, as we are compelled to do under the rules, the trial court was justified in holding that the plaintiff is not in condition to ask a court of equity to enforce the contract. But after much consideration this court has reached the conclusion that, as the contract appears to have been made by both parents with both of the sons who were to render the support in return for land, that the entire support of the parents for many years seems to have been furnished by the plaintiff, he having entered upon the land by the consent of the parents under the contract and raised his family there and regarded it as a homestead for more than 15 years-if the support furnished was as alleged of as many times more value than the use of the land-it is not fair or equitable to hold that the father can put the plaintiff and his family off the land and dispose thereof without any regard to the rights therein of the son who offers to secure his father's continued support.

The principle of allowing for partial consideration paid or part performance had before the breach or misconduct of the grantee has been recognized in a number of decisions involving contracts somewhat similar to the one before us. In Penfield v. Penfield, 41 Conn. 474, the son supported the father a few months, and then a quarrel arose, and thereafter the son failed to care properly for him. In compelling a reconveyance the court

In Patton v. Nixon, 33 Or. 159, 52 Pac. 1048, a woman made a conveyance of her property to her daughter in consideration of her future support, and after receiving such support for a time it ceased, and it was held that, while she had a remedy at law to recover by way of damages, equity would dispose of the matter by making her maintenance a charge upon the property. The Supreme Court of Minnesota, in Bruer v. Bruer, 109 Minn. 260, 265, 123 N. W. 813, 28 L. R. A. (N. S.) 608, in a case of conveyance by a parent to his son for support and maintenance during the remainder of his life, held that upon breach of the agreement by the son the plaintiff could have the conveyance set aside or the amount due under the agreement made a lien upon the land or such other relief as the equities made justifiable. It was said in the opinion that by the modern trend of authority these transactions are placed in a class by themselves and enforced without regard to form and phraseology. In Norris v. Lilly, 147 Cal. 754, 82 Pac. 425, 109 Am. St. Rep. 188, a suit for cancellation for breach of a contract to support after performance had continued for six years, while the question arose upon the correctness of the judgment upon the pleadings, it was said in the opinion:

"In the very case here pleaded, if the defendants, after the payment of this money, and after years of personal service, had refused to proceed further with the contract, plaintiff unquestionably would have been entitled to rescind; but in rescinding the court in equity would take cognizance of the value of the services rendered and

the land by the promisors, and reach its conclu-jable doubt of the defendant's guilt while unnecsion under the evidence as to the terms upon essary and not to be commended, was not matewhich a cancellation of the deed should be de- rially prejudicial. creed." 147 Cal. 756, 82 Pac. 426, 109 Am. St. Rep. 188.

A charge that the defendant unlawfully, willfully, feloniously, purposely, and of delib erate and premeditated malice killed the person named by shooting him with a gun, commonly [Ed. Note. For other cases, see Criminal called a revolver, which was then and there Law, Cent. Dig. §§ 1328-1330; Dec. Dig. loaded with powder and leaden bullets, construed 596.] to mean that the killing was done with deliberation and premeditation.

WEST, J. The defendant was convicted 3. CRIMINAL LAW 1172-HARMLESS ERROR of murder in the first degree, and appeals -INSTRUCTIONS-REASONABLE DOUBT. A charge that the jury could not acquit, upon the grounds urged in his brief that the unless each one of them entertained a reason-information did not charge, or the evidence