(230 P.)

possession of the premises and of all materials, tools, and appliances thereon, and finish the work by whatever method he may deem expedient."

In 13 C. J. 675, 676, the following language is used:

"Contracts in which one party agrees to perform to the satisfaction of the other are ordinarily divided into two classes: (1) Where fancy, taste, sensibility, or judgment are involved; and (2) where the question is mereity. In contracts involving matters of fancy, ly one of operative fitness or mechanical utiltaste, or judgment, when one party agrees to perform to the satisfaction of the other, he renders the other party the sole judge of his satisfaction without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied where he asserts that he is not. The rule also applies to a contract providing that security for its performance shall be sat

isfactory."

Again, on page 678 of the same work, the author says:

[1] 1, Plaintiffs argue the law concerning the construction of contracts and bonds, the law of principal and agent, the law concerning rescission and forfeiture of contracts, the law of estoppel so far as it concerns the defendant, and the law concerning the rejection of certain evidence offered by the plaintiffs on the trial. All of the plaintiffs' argument, except that concerning the law governing rescission of contracts, depends on the sufficiency of the evidence on the trial to show that those who signed the bonds had authority so to do. The sufficiency of the evidence submitted to the defendant at the time the bonds were offered to show the authority of those who signed them so as to prove that the defendant acted unreasona"It would seem that, where the subject-matbly, capriciously, or in bad faith in rejecting them is not argued. It may be conceded that ter of the contract involves a question of individual taste or sentiment rather than of utilthe evidence on the trial conclusively estab-ity, the good faith of the party declaring his lished the fact that the bonds were signed dissatisfaction cannot be inquired into. But, with authority, but the evidence introduced on the trial was not the same as the evidence submitted to the defendant. The reasonableness, good faith, or capriciousness of the defendant in refusing to approve the bonds was, or should have been, the principal question at issue on the trial. It was the turning point in the case. The evidence offered on the trial was not directed to that point. Campbell v. Holcomb, 67 Kan. 48, 72 P. 552,

The evidence introduced on the trial was introduced for the purpose of showing that at the time the bonds were signed those who signed them for their principals had the necessary authority therefor. It was necessary to prove that authority, but it was also necessary to prove that a showing of that authority was made to the defendant when the bonds were submitted in order to show that the objection of the defendant was unreasonable, capricious, or in bad faith. It was incumbent on the plaintiffs to satisfy the defendant concerning the security on the bonds and the signatures on them. If on the trial evidence had been introduced to show that the defendant acted capriciously, unreasonably, or in bad faith in rejecting the bonds, the matters argued by the plaintiffs would be material; without that evidence, the matters argued are immaterial.

The law on this subject has been discussed by the courts of this country. In Smith V. Weaver, 41 Pa. Super. Ct. 253, the court said:

"Where one party agrees to deliver to another party a bond satisfactory to the latter for the performance of the contract, the expression of dissatisfaction by the latter with the bond tendered is sufficient without more to excuse the latter from the performance of the condition of his contract, if there is no evidence that the rejection of the bond was due to an unreasonable or capricious motive."

where the subject-matter of the contract relates to a thing which is ordinarily desirable only because of the commercial value of its mechanical fitness, it is held that the party must act in good faith and must be honestly dissatis

fied."

This court has had occasion to declare the law governing very similar conditions.

this court declared that

In

"A contract of employment at a salary of seventy-five dollars per month and traveling expenses provided that should the employee continue his services for an entire year, and should the character of his business as to volume, etc., and his manner of conducting it be satisfactory to the employer, the latter would make the salary equivalent to one hundred dollars per month by the payment of the twenty-five dollars excess at the close of the year, the determination of which should be left entirely to the employer. In an action to recover the excess salary, held, that satisfaction of the employer at the end of the year must be proved."

In Hollingsworth v. Colthurst, 78 Kan. 455, 96 P. 851, 18 L. R. A. (N. S.) 741, 130 Am. St. Rep. 382, the following language was used:

that the vendor should furnish an abstract "A contract for the sale of land provided showing satisfactory title to the property. In an action against the vendee for damages for his failure to perform it was alleged that the vendor furnished an abstract showing a good and sufficient title. Held: (1) The vendee was the party to be satisfied. (2) It was immaterial that the title was good if the vendee in good faith was not satisfied with it. (3) In order to withstand a demurrer it was essential that the petition either allege that the title was satisfactory to the vendee or show that the vendee did not act in good faith."

The facts alleged by defendants, noted in the opinion, do not constitute an abuse of official discretion, so as to vitiate the action of the county superintendent in disposing of the territory of a disorganized school district.

These cases show that the conclusion seven months in each year for a period of reached by the trial court on the demurrer three years, during which period it also made to the evidence of the plaintiff was correct. no provision for sending its pupils to other [2] 2. Plaintiffs argue that because they schools and for paying for their transportation were not given seven days' notice of the and it is the duty of the county superintendent and tuition, such district must be disorganized termination of the contract the attempted to execute the statute and to attach the terrescission by the defendant was without ef- ritory of the disorganized district to some fect. This makes it necessary to examine adjacent district, preferably to one maintainthe quoted part of article 22 of the spec- ing a graded school offering a high school ifications. That article provided that the course, or to one or more adjoining districts, defendant should have the right to require at the discretion of the county superintendent, the plaintiffs to give bond to cover the faith- and the board of county commissioners has ful performance of the contract, the sureties no official concern therewith by appeal from the action of the county superintendent. on the bond to be approved by the defendant. That bond was required. The contract was 2. Schools and school districts 44-Disornot complete and binding until the bond was ganization of district, which failed to comapproved. The defendant had the right to ply with statute and annexation of territory to other district, held not abuse of discreapprove the bond and the right to exercise tion. discretion in that approval. The defendant was not compelled to accept whatever bond the plaintiffs should offer, even if it were good, but could insist on a satisfactory bond being given so long as the objection to the bond offered was not unreasonable, capricious, or in bad faith. The objection made by the board to the bonds tendered cannot be said to have been unreasonable, capricious, or in bad faith, because in the event of an action on the bonds to recover thereon, if the surety companies had pleaded that the bonds had been executed without authority, the defendant might have been unable to prove that they had been executed with authority. The provision of article 37 of the specifications which required seven days' written notice of the termination of the contract would have applied after the contract became effective and binding. It would not apply until that time. Because the bond offered was not approved, the contract did not become binding on the defendant, and for that reason the plaintiffs cannot recover any damages that may have been sustained by

Original proceeding in mandamus by the Union School District No. 2 of the County of Sheridan, otherwise known as Edson Consolidated School District No. 2, against John D. Starrett, as County Clerk of Sherman County, and others. Writ allowed.

W. L. Sayers, of Hill City, and T. E. Stewart, of Goodland, for plaintiff. George D. Freeze, of Goodland, for de fendants.

DAWSON, J. This is an original proceeding wherein the plaintiff, a graded school district of Sherman county, seeks a writ of mandamus directing the county clerk to spread its tax levy over certain lands and property attached to it by order of the county superintendent. The county treasurer is made a party by reason of his official concern with the controversy. School district No. 64 is made defendant because of its claim to the territory under an order of the board of county commissioners, and because its revenues will be materially affected by the result.

It appears that for some years past, until the early autumn of this year, there has exUNION SCHOOL DIST. NO. 2, OF SHERI-isted at or near the village of Edson, in SherDAN COUNTY V. STARRETT, County Clerk of Sherman County, et al. 26053.)

(No.

man county, a consolidated school district designated as Union school district No. 2, in which has been maintained an approved high

(Supreme Court of Kansas. Nov. 19, 1924.) school course of two years. There has also

(Syllabus by the Court.)

I. Schools and school districts 44-County superintendent is required to disorganize district which has failed to comply with statute, and attach territory to other district without interference by court of county commissioners.

existed nearby a common school district, No. 21, but which for five years last past has not maintained a public school. Adjacent to Union school No. 2 and common school district No. 21, there also exists the defendant school district No. 64, which maintains a common public school.

Under R. S. 72-818, when a school district On August 7, 1924, the county superintendhas failed to maintain a school for at least ent disorganized school district 21 for its

(230 P.)

long-continued failure to maintain a school, | a school district, the county superintendent's and that officer attached most of its terri- duty is clear and imperative. Such district tory, about eight sections of land, to Union district No. 2, and the remainder, about three sections, to defendant district No. 64. On August 14, the county superintendent notified the county clerk of these proceedings, so that the school tax levies pertaining to Union school No. 2 could be spread on the territory affected and in conformity therewith.

which is offered an approved high school course, The disorganization of school district No. 21 of at least two years, or to adjoining districts, under the mandate of the statute automaticin the discretion of the county superintendent." ally terminated the official powers of the offiLaws 1921, c. 228, § 1. cers of school district No. 21. The statute directing the sale of the schoolhouse could not be interrupted by the unauthorized act of its ex-school board. This incident does not disclose any evidence of abuse of discretion on the part of the county superintendent. Neither is abuse of discretion shown on the incident relating to the employment of a school teacher for district No. 64. It would be absurd to say to the county superintendent:

(230 P.)

tion which would vitiate the action of the county superintendent is made to appear.

MASON, J. In 1915, C. S. and Fred G. Hager entered into a contract with William T. Hale for the purchase from him, for $55,500, of rights with respect to a vulcanizing compound of his invention, for which he had applied for a patent. In payment they gave

It follows that the writ of mandamus, as prayed for plaintiff, must be allowed, directing the county clerk to expunge the tax levy of school district No. 64 from that portion of the territory and property of de- | him $3,500 in cash, and each executed to him funct school district No. 21 attached by the superintendent to Union school district No. 2, and to extend thereon the lawful tax levies of Union school district No. 2, and that the county treasurer govern his official conduct pertaining thereto in accordance herewith.

Writ allowed.

All the Justices concurring.

HAGER et al. v. HALE. (No. 25489.) (Supreme Court of Kansas. Nov. 8, 1924.) (Syllabus by the Court.)

Judgment 875-Notes held not "finally defeated or canceled" by judgment holding holder not innocent purchaser, compromised pending appeal and appeal dismissed.

A sale of an invention was made, a number of notes being given in part payment, which were transferred to a holder claiming to be an innocent purchaser. In an action between the original parties, the contract was held to be void, because the statute relating to the sale of patent rights was violated, and a judgment was rendered in favor of the purchaser for a sum including the amount of the notes referred to, with a provision that, if they should be "finally defeated or canceled," the judgment should be reduced to that extent. In an action brought by the holder of the notes against their maker, it was held that he was not an innocent purchaser and a decree was rendered canceling them. An appeal was taken from this decree, and pending its decision a compromise was effected, by which it was to be dismissed in consideration of the payment of about twothirds of the face of the notes-an arrangement which was carried out. A ruling of the district court is affirmed, which held, that the notes were not "finally defeated or canceled," within the meaning of that phrase as used in the judgment, and that the seller of the invention was entitled to a credit on the judgment against him for only the difference between the face of the notes and the amount received by

their holder.

his notes, two for $5,000 each, and one for $16,000. The notes signed by Fred G. Hager were transferred by indorsement to George H. Burr, and those signed by C. S. Hager to W. E. Bradley.

The Hagers brought this action against Hale for the rescission of the contract, on the ground that it was entered into on his part in violation of the statute regulating the sale of patent rights. R. S. 57-101 to 57-103. On January 19, 1921, judgment was rendered, which was affirmed on appeal (Hager v. Hale, 110 Kan. 507, 204 Pac. 529), for the recovery by the plaintiffs of the cash paid and also of the amount of the notes (because of their having been transferred), with a provision that, if any of them should be "finally defeated or canceled" in the hands of the new holders, the judgment should be credited and reduced to that extent. Suits on these notes were pending at the time; one brought by Bradley against C. S. Hager for $26,000 and the other by Burr against Fred C. Hager for a like amount. The former resulted in a judgment from which no appeal was taken canceling the notes held by Bradley, who was held not to be an innocent holder. The judgment against Hale was in effect credited with the amount of these notes, and no material controversy now exists with respect to them between the parties in this proceeding. After the affirmance of the judgment against Hale, it was adjudged, in the action brought by Burr, that he was not an innocent holder, and cancellation of the notes held by him was decreed. He appealed from that judgment, and his appeal, by virtue of a stipulation between him and the Hagers, made June 27, 1923, was dismissed on the next day. The present controversy is as to the effect of this dismissal. Hale contends that it left in full force the judgment canceling the notes sued on by Burr, and entitled Hale to a further credit of $26,000 upon the judgment rendered against him in favor of the Hagers, reducing his liability to $3,500 (and interest), the amount of cash he had received from them

Appeal from District Court, Ford County; in the patent right sale. The Hagers con

L. M. Day, Judge.

Action by C. S. Hager and another against William T. Hale. From a judgment for plaintiffs, defendant appeals. Affirmed.

Albert Watkins and Arthur C. Scates, both of Dodge City, and Wm. Easton Hutchinson, of Garden City, for appellant.

F. Dumont Smith, of Hutchinson, and Carl Van Riper, of Dodge City, for appellees.

tend that, because the appeal in the Burr Case was dismissed in pursuance of a compromise between Burr and the Hagers, by

which Burr was to receive, and did receive (by assignment to him of the certificate of purchase of the realty sold in execution, as mentioned in the next paragraph hereof), $18,000 in settlement of his claims involved in that litigation, the judgment against Hale was thereby reduced only by the difference

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