they could have made inquiries and obtained ir formation and advice, as to whether the price offered ought to be accepted. It cannot be said, under these conditions, that the difference was so grossly inadequate as to lead to the inference of constructive fraud by the plaintiff, or of mistake in the making of the contract." Page 421, [2] The subject of what benefit the children received from the original decree is reargued at length, the contention being that the decree created a trust. The opinion said, as the court had said before, that the language of the decree was very indefinite. The opinion stated the general rule with refer trust, given by a writer who has enriched American jurisprudence by a number of text-books as brilliant as they are profound. The statement was taken from section 1009 of 3 Pomeroy, Equity Jurisprudence (3d Ed.) where it was said: "The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this requisite of certainty includes the subject-matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quanmanner in which the trust is to be performed. If the language is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail." [1] It is said that the third subdivision of entered into precipitately under pressure of the the syllabus is that "inadequacy of consider- plaintiff's presence and urgency, nor were the defendants ignorant of their legal rights. Duration is not a defense to specific performing a period of five days, as he further finds, ance," that every lawyer knows mere inadequacy of consideration alone is not sufficient as a defense, and that the defendant has made no claim that it was. The syllabus does not make the statement attributed to it, and neither the syllabus nor the opinion attributed to counsel reliance upon mere inade-of 216 Mass., page 941 of 103 N. E. quacy of consideration alone as a defense. One grievance of the defendant is that she did not get enough for her land. Since that was a material subject of the lawsuit, and since insufficiency of consideration may go to the extent of producing inequity, it was deemed proper to say something about it. The discussion inevitably led up to the ques-ence to definiteness in the declaration of a tion, what is adequate consideration, and a definition was adopted and stated in the syllabus. That this discussion was pertinent is shown by the documents filed in connection with the application for a rehearing. In one of them the subject of "inequity of the contract itself" is discussed, the sole point of the discussion being the profit to the plaintiff and the loss to the defendant resulting from the contract, ascertained by deducting the price paid from the value of the land. The figures presented show a value of frointity of interests which they are to have, and the $7,600 to $7,980, while the price paid was from $760 to $1,140 less. The court cannot accept counsel's judgment, if such be his judgment, that this disparity, under the circumstances, fraud being eliminated, ought to prevent specific performance. The court is inclined to be guided by the authorities, which are abundant. Two of them, one English and the other American, will indicate the trend. In Abbott v. Sworder, 4 De Gex & Smale, 448, a contract to purchase land worth only £3,500 at a price of £5,000 was specifically enforced against the purchaser. In Nickerson v. Bridges, 216 Mass. 416, 103 N. E. 939, decided in January, 1914, a contract to pay $16,000 for property which the evidence indicated was worth several thousand dollars more than that sum was specifically enforced against the seller. Part of the opinion reads much as if the court were discussing the findings of fact in this case. "Where the party to be charged has been overreached, or great hardship may be entailed, the court will exercise its discretion to prevent oppression and injustice, and this form of relief (specific performance) will be refused, although the bill, if the plaintiff desires, may be retained for the assessment of damages, rather than to remit him to his remedy at law. Seton v. Slade, 2 White & Tudor's Lead. Cas. in Eq. (4th Am. Ed.) 513, 526: American Stay Co. v. Delaney, 211 Mass. 229, 97 N. E. 911, Ann. Cas. 1913B, 509. The evidence as to the market value of the land was conflicting. Undoubtedly the plaintiff sought to obtain it as cheaply as possible, and he and his brokers were better acquainted with its value than the vendors. But the judge has found that one of the defendants, who acted for herself and her sister the codefendant, while advanced in years, was a business woman of experience, familiar with the location and the valuation made by the assessors of taxes. The bargain, moreover, was not The opinion then cited a case decided by a Supreme Court of high repute in which the general rule was applied to a divorce decree which undertook to create a trust in land for the benefit of children, but failed to do so because of indefiniteness. The syllabus of that case reads as follows: "When, upon a decree of divorce in favor of the wife, for extreme cruelty and habitual drunkenness of the husband, the homestead property is awarded to the wife, and the decree declares that the property so awarded to her is to 'be held * in trust for her support, and for that of the children of the parties,' no definite or certain trust is created, but an absolute and unlimited estate in the homestead property is transferred to the wife." Simpson v. Simpson, 80 Cal. 237, 22 Pac. 167. In the opinion it was said: "As to the inference of a trust from the use of the words 'for her support and for that of the children,' and like words and phrases, Mr. Pomeroy says (section 1012): 'No definite rule can be laid down; each case must stand upon its own circumstances. If the language is sufficient for the intention to be clearly inferred, the trust will be enforced; otherwise the doree will take an absolute estate, and the provisions concerning maintenance will be regarded as mere motives for the gift and recommendations addressed to his discretion.' "The words in the divorce decree from which it is claimed that a trust may be inferred immediately follow the paragraph giving the wife the custody of seven minor children, and thereby casting upon her the duty of supporting and educating them, regardless of any aid which the court might allow her from the property of her husband Under these circumstances, it seems not to have been inappropriate for the court to express, as a reason or motive for giv ing her the homestead, that it was intended for the support of herself and children, for which, by the decree, she had been made solely responsible." Page 241 of 80 Cal., page 168 of 22 Pac. for and to the use and benefit of said children The difference between the two decrees is There has been some undiscriminating thinking and careless writing about the subject of trusts by some of the courts of this country. Cases may be found in which the simple use of the words, "in trust for" a person or persons described, have been held to create a trust for what seemed to the court to be a good thing for the person designated. In such cases, the general principles are often stated correctly; but it is not perceived that in applying the principles the court creates out of whole cloth the uses and purposes which are attributed to the trust instrument. The decided cases being as multitudinous as they are multifarious, no review of them will be attempted. In the case of Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512, it was said that no particular form of expression is required to create an express trust, but that the declaration of trust will be valid if the writing or writings "clearly point out the nature and object of the trust." The divorce decree did not specify any estate or title or interest whatever in the land in controversy which the children were to possess or enjoy, did not specify any use to be made of it for their benefit, and did not specify any act or duty with reference to it which the trustee was to perform for their benefit. Essential elements of a trust were lack-pressed in the Arnold decree as any other. ing, and the award of the land to the mother for her alimony and as her separate estate vested in her the entire title and estate, if Pomeroy and the Supreme Court of California are competent witnesses to the law, and if the rule indicated in Tenney v. Simpson is a trustworthy guide. Counsel for the defendant undertakes to enlighten the court by means of a parallel. The déclaration of trust in the divorce decree and the declaration of trust in the divorce decree involved in the case of Arnold v. Arnold, 83 Kan. 539, 112 Pac. 163 are placed side by side. The question is asked which is the more definite and certain, and the challenge is made to point out what element is omitted in one which makes the trust void, which is found in the other and makes it valid. Here are the two decrees. "And it is further ordered and decreed that the said plaintiff shall have, and there is hereby set apart to her as her separate estate, as and for her alimony in said action the following described real estate [describing it], to be held by the said Anna Greenwood, in trust for Grace and Helen Greenwood until the said Helen Greenwood shall attain her majority, and at the expiration of said time, or upon the death of both of said children before said time, the title to said property shall vest in the said Anna Greenwood absolutely and in fee. Greenwood v. Greenwood, 96 Kan. 591, 592, 152 Pac. 657. "That the plaintiff be and is hereby divorced from the said defendant, and that she do have the complete, absolute, and full control of said minor children during their minority, and that the legal title to said above described homestead real estate be vested in the plaintiff in trust The words of the decree in this case, "in trust for Grace and Helen Greenwood," do nothing whatever but designate the beneficiaries, and there is just as much reason for reading into the decree the limitation ex The district court found that the defendant leased the land in her own name and kept no account with her children as to the amount of money she received as rental, or how it was disbursed, but treated the income from the land as her own funds. She was well within her rights because the decree gave the children no property in a penny of the income from the land any more than it gave them title to the land itself, and charged the defendant with no duty to account to them for her management of the farm or her use of the proceeds derived from it. Because the decree is utterly barren of any description of the nature and purpose of the trust, it fails to meet the requirement of a declara tion of trust. It is asked why, if the court in the original opinion and in the opinion in Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828, was able to define the nature and quantity of the children's interest and the manner in which the trust was to be performed, the trust is now held void for uncertainty? The court has not at any time been able to define the nature of any trust created by the divorce decree or the manner in which any trust created by that decree might be performed. In the case just cited the opinion summarized the terms of the decree, and then says: "We assume that the effect of the original decree was to charge the income from the land with the support and maintenance of the chil dren, if necessary for that purpose." Page 307 | the plaintiff to the defendant should be deof 85 Kan., page 830 of 116 Pac. The word "trust" does not occur in that opinion, except in stating the terms of the decree. In the original opinion in the present case the court said: stroyed. The contract embraced two subjects now of importance, conveyance of title and delivery of possession. Title was not to be conveyed until all relation of the children to the land was at an end, and consequently "The divorce decree charged the defendant they had no interest in that feature of the with the duty of maintaining and educating the contract. Surrender of possession might cut children. In order that the defendant might off a source of income which might be mahave means with which to discharge that duty, the court gave her the land in controversy. It terial to their maintenance. They were inwas supposed the land would be a source of in-terested in that subject, but they were income, and the purpose was that such income terested no further than that possession should be devoted, so far as might be necessary, to the support of the children during their minority. That was the full extent of their interest." Greenwood v. Greenwood, 96 Kan. 591, 597, 152 Pac. 657, 659. There is not a word here about any trust, and in the paragraph just preceding the one quoted the court had pointed out that essential elements of a trust were wanting. If the defendant had complied with her contract and had surrendered possession of the land, the children would have had no standing in court as beneficiaries of a trust to call the defendant to account as their trustee. Protection of their interest required no more than that the defendant keep the possession she had contracted to deliver. It did not require cancellation of the contract as between the plaintiff and the defendant or any impairment of the obligation of the defendant to the plaintiff which the contract created. should not be surrendered. In the original opinion it was said that certain facts which were summarized were stage properties employed to give scenic effect to the defendant's presentation of her case and had nothing whatever to do with the merits of the book. One of the defendIt is said that the present decision con- ant's counsel feels aggrieved at the remark flicts with the decision rendered in the case as a personal reflection upon him. Instead of Greenwood v. Greenwood, 85 Kan. 303, of meaning to reflect upon the counsel, the 116 Pac. 828. The court not only upholds court undertook to give the best turn it that decision as stare decisis, but fully ap- could to a serious matter with reference to proves it. The decision was that the divorce which he stood on narrow ground. On the court had no power to cancel or set aside face of the brief, his denunciation of the the contract between the plaintiff and the plaintiff and his denunciation of the decision defendant "so far as such contract in no re- of the trial court went dangerously near the spect interfered with the rights of the chil- limit of propriety. Printed briefs which bedren" (Syl.), but that the interest of the chil- come records of this court are not proper dren might be protected. The divorce court vehicles for invective against persons. The had original and continuing power to make attorney for the plaintiff remonstrated any reasonable order for the support of the against the intemperance of counsel's lanchildren. Having made an order upon that guage. In a reply brief counsel disclaimed subject, the parties to the decree could not any personal reflection upon the trial judge take away that support, and any attempt to for making a decree resulting in "monstrous do so, or to substitute some other kind of iniquity." The disclaimer is accepted, but support, would have no effect on the rights it would have been better had it been extendof the children. But the divorce court, nei-ed to include an explanation of what was ther at the time of the original decree nor meant by characterizing the result of the deat the time when the attempt to cancel the cision as "abhorrent to the dullest sense of contract was made, had any power to lay its justice," and what was meant by twice drawhand on a contract between the plaintiff and ing the distinction between the decision renthe defendant further than might be neces- dered and the decision expected of the "just sary to protect the children. With the va-judge." The reply brief renewed the virulent lidity and the binding quality of the contract personal attack on the plaintiff and stated as between the plaintiff and the defendant that counsel had no apology to offer for it. the court had nothing whatever to do. It was concerned solely with the results of the contract on the rights and interest of the children, and had no concern whatever with the results of the contract on the rights and interests of the contracting parties as between themselves. The divorce court conceived that the interests of the children extended so far as to require cancellation of the contract, and as a consequence the cancellation of the defendant's obligation to the plaintiff. This court reversed the judgment because it was not necessary, in order to The document passed beyond the bounds of legitimate argument to aspersion and revilement. Conceding something to zeal and to genuine emotion, the court passed the matter by as calcium light employed to bring into strong relief the merits of the controversy as counsel saw them. Counsel's statement that he believed the facts referred to in the original opinion to be relevant and material will be accepted, but the court disagrees with him, and again states its opinion to be that they had nothing whatever to do with the merits of the case. of the application for a rehearing and for a the driver. The plaintiff and her daughterreversal, and it is not deemed necessary in-law occupied the rear seat. Crawford to extend this opinion further. The application for a rehearing is denied. The judgment of the district court is again affirmed, and the district court is directed to enter and carry into effect the mandate which has been forwarded to it. JOHNSTON, C. J., and MASON, PORTER, MARSHALL, and DAWSON, JJ., concurring. avenue in the city of Parsons extends east and west across the defendant's tracks, 24 in number, and the automobile was proceeding toward the west. In the midst of the tracks and north of the crossing stood a car barn. On the first track west of the car barn stood a stock car, the south end of which was in the street. On the next track toward the west stood a coal car, the south end of which was a few feet north of the south end of the stock car. A switch engine moving toward the south on the third track west of the car barn struck the automobile. The engine bell was ringing at the time, and a track foreman of the defendant testified it could be heard at a distance of 400 or 500 yards. The plaintiff and her WEST, J., concurring in the result, I would add one suggestion. Not only are we increasingly careful to refrain from impugning the motives of counsel, but in the foregoing opinion an intended criticism merely of an argument, erroneously taken as a personal reflection, is correctly construed by the reference to the "scenic" expression in the orig-husband had not been on the crossing beinal opinion. If a similar regard for the feelings of the court were manifested in all cases and at all times by counsel appearing here, the felicity of the work and practice in this court would be augmented. fore. The plaintiff's son was an employé of the defendant, was familiar with the crossing, and said to his father that he would look out for trains. He testified there was danger in stopping an automobile there because cars were likely to be moved at any time. The automobile proceeded as slowly DENTON v. MISSOURI, K. & T. RY. CO.* as possible without killing the engine, at a (No. 19986.) (Supreme Court of Kansas. March 11, 1916.) (Syllabus by the Court.) speed of about four or five miles per hour. The plaintiff testified that as they entered the crossing she could see tracks covering approximately a block to the west. The NEGLIGENCE 93(2)—RAILROADS 350(21)-tracks seemed to be pretty thick clear across. CROSSING ACCIDENT-IMPUTED NEGLIGENCE -QUESTION FOR JURY-EVIDENCE. The evidence and special findings of fact examined, and held, that a woman who was riding in an automobile driven by her husband, and who is injured by a collision between the automobile and a switch engine on a street crossing, was not guilty of negligence as a matter of law. [Ed. Note. For other cases, see Negligence, Cent. Dig. 149; Dec. Dig. 93(2); Railroads, Cent. Dig. § 1176; Dec. Dig. 350(21).] Appeal from District Court, Labette County. The east tracks were farther apart than none. "1. Did the plaintiff, just before the collision Action by Mollie J. Denton against the in question, see cars upon the side tracks and Missouri, Kansas & Texas Railway Company. observe the condition of the crossing with reference to obstructions that would obscure her From a judgment for plaintiff, defendant ap-view of an approaching engine from the north? peals. Affirmed. Ans. Yes. "2. Did the plaintiff, on approaching the crossW. W. Brown, James W. Reid, and E. Ling at which the collision occurred, see a railBurton, all of Parsons, for appellant. W. D. Atkinson, C. E. Pile, and L. E. Goodrich, all of Parsons, for appellee. BURCH, J. The action was one for damages for injuries which a woman, riding in an automobile driven by her husband, sustained by being struck by a switch engine on a street crossing in the defendant's yards in the city of Parsons. The plaintiff recovered, and the defendant appeals. The plaintiff, her husband, F. M. Denton, her son, E. E. Denton, and her son's wife, occupied the automobile. F. M. Denton, sitting on the right-hand side, was driving the car. E. E. Denton occupied the front seat with road track beyond the obstructions and know that engines or cars were likely to be passing over said tracks at any time? Ans. Yes. "3. Did said plaintiff endeavor to have said automobile stopped at any time when passing over the tracks of defendant before it went upon the crossing where the collision occurred? Ans. No, "4. Did the noise of the automobile prevent plaintiff from hearing the ringing of the bell of the engine, as said engine approached the crossing on which the collision occurred? Ans. No. "5. What, if anything, did the plaintiff do to avoid the collision? Ans. Looked and listened. "6. When it first became possible for plaintiff to observe an engine approaching on the tracks where the collision occurred, was the automobile just entering upon said tracks? Ans. Yes. "7. Was said engine stopped as soon as it could be stopped after the employés of defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ant discovered the automobile approaching? | ought the plaintiff to have arrogated to herAns. Yes." self control over the automobile and com 9. If you find for the plaintiff, state what elements of damage you include in your verdict. Ans. Bodily pain and permanent injury. "10. Was the automobile, on approaching the crossing, under the control of the operator so that it could have been stopped at any point before entering upon the crossing? Ans. Yes. "11. Do you find that the view of the defendant's employés who were riding upon said engine was obstructed by the cars so that they could not see the approaching automobile until it came from behind the cars about six or seven feet from the crossing? Ans. Yes. "12. Do you find that the employés of the defendant made every effort, after discovering the automobile, to stop said engine and to prevent the collision? Ans. Yes." The defendant's principal contentions are that the plaintiff was guilty of negligence as a matter of law, and that judgment should have been rendered for the defendant on the findings of fact. This is a second appeal. Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558, 47 L. R. A. (N. S.) 820, Ann. Cas. 1915B, 639. A paragraph of the syllabus of the first opinion reads as follows: "Where a woman is injured through the negligence of a railway company, she is not precluded from recovery by the fact that a contributing cause of her injury was the failure of her husband to exercise due care in the management of the automobile in which they were riding." Paragraph 4. This is the law, and the plaintiff can be defeated only because of her own negligence. L. R. A. 1915B, 953, note. manded it to stop? The finding is that she saw a track beyond the obstructions to her vision and knew engines and cars were likely to pass over it at any time. There is no finding and no evidence that from her place in the back seat she could see this track was so close to the one on which the coal car stood that the automobile would be in danger before her husband on the front seat could see toward the north. Her opportunities of observation were not equal to those of her husband. She knew his ability as a driver and trusted him, and, what is more, she had the right to trust him. In the case of Williams v. Withington, 88 Kan. 809, 129 Pac. 1148, it was said: "Common sense would dictate that when a wife goes riding with her children in a rig driven by her husband she rightfully relies on him not to drive so as to imperil those in his charge. The law does not depart from common sense by requiring her, under the circumstances shown here, to impugn her husband's ability to drive and assume the prerogative to dictate to him the manner of driving." Page 813 of 88 Kan., page 1149 of 129 Pac. This doctrine applies to the case of a wife riding in an automobile driven by her husband, unless she should know him to be incompetent or under some disability. to see the approaching train. In the case of Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261, cited by the defendant, the person injured did nothing at all for her own safety. She did not even look or listen, although in the presence of danger, and the accident might have been prevented had she done so. In the case of Bush v. Railway Co., 62 Kan. 709, 64 Pac. 624, cited by the defendant, the person injured was not relying on the driver of the vehicle in which she was riding, was looking out for herself independThe plaintiff was required to take the pre-ently of him, had equal opportunity with him cautions which a reasonably prudent per- to see and appreciate the danger which son, not in the situation of the automobile threatened them, and in fact was the first driver, but in her situation, would have taken. The argument is that she should have stopped the automobile, or should have called her husband's attention to the conditions and requested him to exercise reasonable care. Why should the plaintiff have called her husband's attention to the conditions and exhorted him to use due care? She had confidence in his ability as a driver. The conditions were just as obvious to him as to her. He could see and hear all she could see and hear. He was responsible for the operation of the automobile, not she, and she had no reason to doubt that he was exercising his faculties with diligence. Besides The court had no authority, on application this, there was another observer in the front by the defendant, to require the plaintiff to seat with the driver, who was in fact fa- join her husband as a defendant. The submiliar with the crossing. His safety and his ject of the ringing of the bell was sufficiently wife's safety were at stake, and there is no presented to the jury by the instructions evidence of any fact indicating to the plain- | given. The result is the question of the plaintiff's negligence was properly submitted to the jury. The finding that she exercised due care for her own safety, included in the general verdict, is sustained by the evidence, and judgment for the defendant on the special findings was properly denied. tiff that her son was not exercising his facul- The judgment of the district court is afties of observation with diligence. Why firmed. All the Justices concurring. |