BILL OF EXCHANGE-FAILURE OF CONSIDERATION-KNOWLEDGE OF INDORSEE. A partial failure of the consideration for a bill of exchange may be set up in an action thereon by an indorsee before maturity who had knowledge of such failure, and defendant may recoup his damages though they be unliquidated. Appeal from Marion county. Action on a bill of exchange indorsed before maturity, drawn on the defendant, July 23, 1883, at nine months, by Fish Bros., of Racine, Wisconsin, and accepted by defendant. Defense, partial failure of consideration, known to the plaintiff when he took the draft, pleaded as follows: "That the plaintiff, before he claims to have received said draft by indorsement, had notice and knowledge of the terms of the contract and agreement between Fish Bros. & Co. and the defendant, and of its violation by the former in the respect hereinbefore set out." This allegation was denied in the reply. The court instructed the jury that "the plaintiff having notice of said claim of damages and defects before he purchased the bill, if he did purchase it, would not affect his right to recover, provided he purchased it before it became due. There being no allegation of fraud in obtaining the bill, the question of notice is not material, provided the bill was purchased for value, in the usual course of business, before it become due." Verdict for plaintiff. William M. Ramsey, for appellant. Mark A. Fullerton, for respondent. WALDO, C. J. The answer set up a good defense of notice, and the court erred in the instruction which cut it off. Partial failure of consideration of a bill of exchange may be set up to an action on the bill, and the defendant may recoup his damages, though they be unliquidated. Withers v. Greene, 9 How. 213; Stacy v. Kemp, 97 Mass. 166; Wyckoff v. Runyon, 33 N. J. Law. 107. If an indorsee take a bill with notice of the failure of consideration, his right to recover cannot be superior to that of his indorser. Herrick v. Carman, 12 Johns. 159; 1 Pars. Bills & Notes, 258. Counsel for the plaintiff argued, however, that, conceding error in the instruction, the defendant could not take advantage of it, because he had not properly alleged notice in his answer in this: that he did not allege that the draft in suit arose out of the transaction on which the defendant founded his defense. The pleading is defective in the particular alleged, but the plaintiff waived the defect by taking issue on the facts alleged, as is shown in White v. Spencer, 14 N. Y. 247, and Bank of Illinois v. Brady, 3 McLean, 268. The judgment must be reversed, and a new trial ordered. (12 Or. 429) MACKEY and another v. OLSSEN. Filed October 21, 1885. 1. SALE OF TIMBER-DAMAGES-BREACH OF CONTRACT. The measure of damages for the breach of the contract in this case for the sale of certain standing timber was the difference between the contract price and the market value of the timber standing at the time the cause of action arose, and it was error to allow plaintiff to prove the expense incurred by him in making a road over the land to the timber. 2. APPEAL-ALLOWING IMPROPER ELEMENT OF DAMAGE-NEW TRIAL. Where an improper element of damage has been allowed, if the amount thereof can be segregated from the verdict, and plaintiff will remit the sum, the judgment will not be reversed and a new trial granted, but may be modified and affirmed. Appeal from Benton county. John Burnett and John Kelsay, for appellant. R. S. Strahan and J. R. Baldwin, for respondents. LORD, J. This is an action for damages, based upon the breach of a written contract for the sale of standing timber, in which it is alleged, as the essential part of such contract, "that, in consideration of one-half cent per foot running measure, the party of the first part agrees to sell all the timber on his land near Newport that may be found suitable for piling, or railroad ties, and give the right of way to said timber to the parties of the second part. And the parties of the second part agree to pay to the party of the first part one-half cent per foot, running measure, for all timber on said land suitable for said road ties or piling; payments to be made on the delivery, receipt, and payment of the railroad company or other purchasers." It is further alleged that the market value of the timber is six cents per foot. In his answer the defendant denies this allegation, and alleges that the market value was not greater than the contract price, etc. Issue being joined, a trial was had, which resulted in a verdict for the plaintiffs. The defendant appeals, and assigns, among other grounds of error, as appears by the bill of exceptions, that the court erred in allowing the plaintiffs to prove the costs of constructing a road to get the standing timber mentioned in the complaint, for the reason, principally, that the measure of damages applicable to the case is the difference between the contract price and the market value of the timber standing. The defendant claims that the plaintiffs have no more right to make him pay for making the road to the timber than if they had gotten all the timber for which the contract provided, and then sued him for the cost of making the road to get it. Now it will be admitted that if the contract had been fully performed and completed, the road must have been left on the land, and no charge could be made for the expenses of constructing it. By their verdict for damages plaintiffs have got all the timber for which the contract provided, and the road is left on the land the same as if the contract had been performed, as indicated by the issue and the instructions of the court. The difference between the contract price and the market value of the timber standing at the time the cause of action arose was the measure of damages applicable to the case. It was error, therefore, to allow evidence to show the expense of constructing this road. The amount of this expense was $65; and we think the admission of this evidence worked an injury to the defendant. But as we are enabled by the record to segregate the amount from the verdict, we have concluded that if the plaintiffs will remit this sum of $65, the judgment will be affirmed for the balance; otherwise, a new trial must be ordered. (34 Kan. 365) COURT SUPREME COURT OF KANSAS. CRAFT and others v. LOFINCK and others. Filed November 7, 1885. 1. CONSTITUTIONAL LAW-RETROSPECTIVE LAW IMPOSING LEGAL LIABILITY ON TOWNSHIP. It is necessary, in order to enable the legislature by retrospective legislation to impose a legal liability upon the people owning property in a portion of a township, or other subdivision of the territory of the state, where no such legal liability existed before, that a pre-existing moral obligation should rest upon such people to discharge such liability. 2. SAME-MORAL OBLIGATION TO DISCHARGE LIABILITY. And in such a case it is clearly within the province of the legislature in the first instance to determine the question whether such a moral obligation exists or not; yet it is not exclusively within their province. The determination of the question devolves at first upon the legislature, but lastly and finally upon the courts. 3. SAME-TOWNSHIP BONDS TO BUILD BRIDGES. Where the people of a township in the year 1870 voted to issue bonds to build a bridge at a certain place in the township, and before anything further was done a portion of the territory of the township was detached therefrom and placed in a new township, and the people of the new township then voted to issue bonds to build a bridge in their own township, and each township issued its bonds, payable in 10 years, and both bridges were built, one in the old township and one in the new township; and the one in the new township was "an imperative public necessity," and it does not appear that the people in one township needed the bridge built in the other township; and after the bonds issued by the old township became due and payable they were refunded by such old township by the issuing of new bonds; and afterwards, and in 1883, the legislature passed an act, (chapter 147,) the general language of which would make the people owning real estate in the detached territory liable to assist in paying the bonds of the old township: Held, that such people, under the facts and circumstances of this case, are not under any moral obligation to assist in paying such bonds, and the act of the legislature of 1883, so far as it tends to make them liable, is unconstitutional and void. JOHNSTON, J., dissenting. Error from Marshall county. W. W. Guthrie and John V. Coon, for plaintiffs in error. VALENTINE, J. This was an action brought in the district court of Marshall county, Kansas, by Rufus S. Craft, in behalf of himself and others, against William Lofinck, treasurer of said county, and others, to perpetually enjoin the collection of certain taxes. A temporary injunction was at first allowed, but was afterwards dissolved, and judgment was rendered in favor of the defendants and against the plaintiff for costs, and the plaintiff, as plaintiff in error, now brings the case to this court. The questions involved in the case arise upon the following facts and statutes: On February 24, 1870, a special act of the legislature (Laws 1870, c. 23) was passed, authorizing Blue Rapids township, in said county, to issue the bonds of the township to the amount of $20,000, to build a bridge across the Big Blue river at the town of Irving, provided the qualified electors of such township should first vote to issue such bonds. About the same time, a colony of persons from the East settled in said township, about five miles above Irving, on said Big Blue river, and established the town, now city, of Blue Rapids. On April 5, 1870, an election was held in Blue Rapids township, in pursuance of said act of the legislature. The returns thereof were duly canvassed, and it was declared by the canvassing board that the election had resulted in favor of the issuing of the bonds by a majority of three, although probably the election resulted the other way by a majority of five. No contest, however, was ever had concerning such election. On August 24, 1870, a certain portion of the territory of Blue Rapids township, including the town of Blue Rapids, was detached from such township; and the detached territory, together with a portion of Waterville township, was created and organized into the new township of Blue Rapids City. After this time, but prior to the commencement of this action, the plaintiff, with others, purchased real estate in the detached territory, upon which real estate the taxes now in controversy were levied. On October 1, 1870, the contract for building the bridge at Irving, in Blue Rapids township, was made. On November 15, 1870, the aforesaid bonds of Blue Rapids township were issued, payable January 1, 1881, with interest coupons attached, payable annually on the first day of January of each year. On December 3, 1870, an election was held in Blue Rapids City township, under the general statutes of Kansas, for the purpose of authorizing the township to issue $10,000 of its bonds to build a bridge across the Big Blue river at the town of Blue Rapids. This bridge it appears was "an imperative public necessity." On December 7, 1870, the contract for the building of this bridge was made. On January 30, 1871, the aforesaid bonds of Blue Rapids City township were issued, payable in 10 years. Both bridges were built,-one wholly in Blue Rapids township and at the town of Irving, and the other wholly in Blue Rapids City township and at the town of Blue Rapids, and about five miles apart. On March 3, 1873, an act of the legislature was passed, (Laws 1873, c. 142,) providing for the regulation of taxation on the change of boundary lines of counties and townships; but this act did not affect the rights of either of the aforesaid townships, nor of the people residing or owning property therein. In 1873 taxes were levied by Blue Rapids township for the payment of the interest on the bonds issued by such township, which taxes were extended over the detached territory. On April 27, 1874, Darius Minnium, for himself and others, commenced an action in the district court of Marshall county to perpetually enjoin the collection of the aforesaid taxes, so far as they applied to the property situated in said detached territory; and in March, 1875, judgment was rendered, as asked for, perpetually enjoining the collection of said taxes. On April 17, 1876, the Citizens' Savings & Loan Association, of Cleve |