debt." To this cause of action a demurrer was filed and sustained by the trial court. Counsel for plaintiff in error in their brief say: "The error complained of is the ruling of the court below on the demurrer to the first cause of action. We do not claim now, nor did we claim in the court below, that the check was a sufficient memorandum in writing to take the contract out of the statute of frauds. We do not bring this action to enforce specific performance of the contract. We sue to recover the purchase money we paid, because the defendant in error refused to stand by the contract, and finally, by her own act, made it impossible for us to enforce her to carry out the contract. The precise question presented by this demurrer is this: If, for any reason, a contract for the purchase and sale of land is invalid or defeated by the act of the vendor, can the purchaser recover the money had and received by the vendor? We say, 'Yes,' and the authorities seem to sustain this view. It may be confidently asserted as the law of this state that where a contract is void either for the want of power to make it by either party, or because the manner of contracting is not the mode pointed out by the statute, or for any other legal reason, the party receiving benefits from such attempted contract will be required to account to the party from whom such benefits have been received. Brown v. City of Atchison, 39 Kan. 39, 17 Pac. 465; City of Ellsworth v. Rossiter, 46 Kan. 237, 26 Pac. 674; Columbus Waterworks Co. v. City of Columbus, 46 Kan. 666, 26 Pac. 1046; Deisher v. Stein, 34 Kan. 39, 7 Pac. 608, citing Gregg v. Hamilton, 12 Kan. 333; Holcomb v. Dowell, 15 Kan. 378; Nay v. Mograin, 24 Kan. 75; Becker v. Mason, 30 Kan. 703, 2 Pac. 850; Bard v. Elston, 31 Kań. 274, 1 Pac. 565; Newkirk v. Marshall, 35 Kan. 78, 10 Pac. 571. In our opinion, the contention of plaintiff in error is fully sustained by the authorities. The judgment of the district court will be reversed. (10 Kan. App. 510) ATCHISON, T. & S. F. RY. CO. v. MOORE. (Court of Appeals of Kansas, Southern Department, E. D. Jan. 14, 1901.) ACCIDENT AT CROSSING-CONTRIBUTORY NEG LIGENCE-DIRECTING VERDICT. "Where a traveler on a country highway comes to a railway crossing with which he is familiar, and knows that a train is about due at that point, and is liable to pass at any time, it becomes his duty, as an act of ordinary prudence, to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing be unavailing because of preventing noises, it becomes his duty, as a further act of ordinary prudence, to stop, in order to better enable him to look and listen before entering upon the crossing; and in such a case, if, by stopping, he can see or hear the approaching train, but fails to do so, his negligence in such respect should be declared as a matter of law, and not left to the determina tion of the jury as a question of fact." Railroad Co. v. Willey, 58 Pac. 472, 60 Kan. 819. (Syllabus by the Court.) Error from district court, Allen county; L. Stillwell, Judge. Action by George F. Moore against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff. Defendant brings error. Reversed. A. A. Hurd, for plaintiff in error. A. H. Campbell, for defendant in error. SCHOONOVER, J. Defendant in error brought this action in the district court of Allen county against the Atchison, Topeka & Santa Fé Railroad Company to recover damages for the destruction of personal property and for personal injuries sustained by him by reason of a collision between one of the railroad company's trains and his team and wagon at a public crossing. The case was tried to a jury, which returned a verdict in favor of plaintiff. Judgment was rendered upon the verdict in favor of plaintiff, and the railroad company brings the case here. In addition to their general verdict, the jury returned answers to special questions submitted by counsel for the railroad company. The railroad company filed a motion asking judgment upon the special findings. The court overruled the motion, and it is of this ruling that the plaintiff in error complains. The special findings, so far as material to the questions to be determined, are as follows: "(2) State what time of day the accident occurred. Ans. Between one and two o'clock p. m." "(4) Was the train running on schedule time at the time of accident? Ans. Yes. (5) Was the engineer in charge of engine hauling that collided with plaintiff's wagon a competent, experienced, and skillful engineer? Ans. Yes." "(26) Did the plaintiff stop before attempting to cross the track? Ans. No. (27) When the plaintiff, with the team, drove on the right of way from the east, and before his team reached the railroad track, if he had looked south, could he have seen the approaching train? Ans. Yes." "(30) If the plaintiff had listened before attempting to cross the railroad track, could he have heard the approaching train? Ans. No. (31) If you answer the preceding question, No. 30, in the negative, then state fully why he could not have heard it. Ans. On account of the noise of his wagon.” “(34) Was the plaintiff well acquainted with the crossing? Ans. Yes. (35) Did he cross it frequently? Ans. Yes. (36) Was plaintiff well acquainted with the time passenger train passed the crossing where the accident occurred? Ans. Yes. (37) Did the passenger train that struck plaintiff's wagon pass the point of accident at the usual time? Ans. Yes." "(42) Did the plaintiff, before attempting to cross the railroad crossing where the accident occurred, take any precaution to prevent the accident to himself? Ans. Yes. (43) If you answer the preceding question in the affirmative, then state what was done. Ans. Looked and listened." It is not urged that the special findings show that the railroad company was not negligent. Plaintiff in error rests its case upon the proposition that the findings show contributory negligence upon the part of the defendant in error. It is contended by plaintiff in error that defendant in error failed to stop, look, and listen before attempting to cross the track, and that he was, therefore, guilty of contributory negligence. In support of this proposition the cases of Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, and Same v. Willey, 60 Kan. 819, 58 Pac. 472, are cited. The first paragraph of the Holland Case is as follows: "A person who sees a railroad track upon which trains may pass at any time is already warned of danger, and it is the imperative duty of one about to cross the tracks of a railroad at least to look and listen for approaching trains. If he fails to look, when, by looking, he could see a coming train, and there is no excuse for such failure, he will be deemed guilty of negligence per se, and not entitled to recover for injuries sustained in a collision with a train, although those in charge of the train failed to give any signal of its approach." In the Willey Case, the syllabus is as follows: "When a traveler on a country highway comes to a railway crossing with which he is familiar, knowing that a train is about due at that point, and liable to pass at any time, it becomes his duty, as an act of ordinary prudence, to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing unavailing because of preventing noises, it becomes his duty, as a further act of ordinary prudence, to stop, in order to better enable him to look and listen, before entering upon the crossing; and in such a case, if, by stopping, he can see or hear the approaching train, but fails to do so, his negligence in such respect should be declared a matter of law, and not left to the determination of the jury as a question of fact." The evidence is not incorporated in the record, and every reasonable presumption must, therefore, be indulged in favor of the general verdict. Railroad Co. v. Kemper (Ind. Sup.) 53 N. E. 935; Hobb v. Stone Co. (Ind. App.) 53 N. E. 1065. In answer to question No. 42 the jury found that, before attempting to drive upon the track, the plaintiff looked and listened. In reply to question No. 27 the jury declared that when the plaintiff drove upon the right of way, and before he reached the track, if he had looked south, he could have seen the approaching train. Here is an apparent conflict; but, applying the rule that every reasonable presumption must be indulged in favor of the general verdict, we must assume that plaintiff could not, at all times, while passing from the line of the right of way to the track, see the train. There may have been obstructions which prevented him from seeing the track except at some particular point, and it may be true that plaintiff did look and listen, though not at that particular place. But, under the rule laid down in the case of Railroad Co. v. Willey, supra, if the senses of sight and hearing were unavailing because of obstructions and preventing noises it became the duty of the plaintiff to stop, in order to better enable him to look and listen, before entering upon the crossing. In answer to question No. 26 the jury found that plaintiff did not stop before attempting to drive upon the track, and in reply to questions 30 and 31 that he could not hear the approaching train because of the noise made by his wagon. Under these circumstances it became his duty to stop. If there were no objects which obstructed the view, then the jury's finding that plaintiff looked and listened before attempting to drive upon the track is manifestly untrue, for the jury also found that plaintiff's eyesight was good, and that the day was clear. Assuming that there were obstructions, it became the plaintiff's duty to stop. We think that the motion of defendant below for judgment upon the special findings should be sustained, and the judgment of the district court will therefore be reversed, and the case remanded, with instructions to enter judgment for defendant. (10 Kan. App. 558) FRAZIER v. JEAKINS. (Court of Appeals of Kansas, Southern Department, W. D. Jan. 12, 1901.) GUARDIAN-SALE OF WARD'S LAND-RIGHT TO PURCHASE. Since, under the law of this state, the wife's interest during marriage in the real estate of her husband, while a contingent one, is unquestionably property, the statutory incapacity of a guardian to become a purchaser at the sale of the ward's property is held to exclude the husband of a guardian from becoming such a purchaser. (Syllabus by the Court.) Error from district court, Butler county; C. W. Shinn, Judge. Action by Clara A. Jeakins against N. F. Frazier. Judgment for plaintiff. Defendant brings error. Affirmed. Buck & Spencer, for plaintiff in error. Redden & Kramer, for defendant in error. MILTON, J. This is an action in ejectment brought by Clara A. Jeakins in due time after attaining her majority to recover the possession of an undivided one-twelfth interest in certain lands in Butler county, Kan., and the rents and profits thereof. The plaintiff claimed title as one of the heirs of her mother, Serena J. Jeakins, who died in that county, intestate, in 1883. Her husband and six children survived her, and one child died in infancy. In December, 1885, Mrs. Permilly Scheel, a sister of Mrs. Jeakins, was duly appointed guardian of the minor children of the deceased. The several interests of Mr. Jeakins and of the children, except those of the plaintiff and her sister, Effie, were purchased by Mrs. Scheel between February 1, 1886, and October 22, 1889, inclusive. At the time such interests were conveyed, it appears to have been the understanding that each of the children owned an undivided onetwelfth of the property. On November 5, 1891, Mrs. Scheel, as guardian of the persons and estates of Clara and Effie Jeakins, and acting under an order of the probate court, sold the undivided interests of the said wards at private sale to Carl Scheel for three-fourths of the appraised value of such interests, and on the same day Mrs. Scheel executed a deed therefor to the purchaser. In November, 1894, Mrs. Scheel and Carl Scheel, her husband, conveyed the entire property, by deed of warranty, to the defendant below. This action was begun on January 26, 1897. The petition was in the ordinary form in ejectment, and the answer contained a general denial only. The defendant admitted knowledge of the fact that his title rested in part on the guardian's deed, and of the further fact that Carl Scheel and Permilly Scheel were husband and wife at the time that deed was made. It was not denied that they had borne that relation for many years prior thereto. The defendant paid full value for the land, and had occupied it for a little more than two years prior to the commencement of this action. The verdict was in favor of the plaintiff for the recovery of an undivided one-fourteenth interest in the land described in the petition, and for $90, her portion of the rents and profits. While numerous questions are discussed by counsel, we find only one question for decision, and that is whether the court erred in instructing the jury as follows: "(4) Under the law of this state a guardian has no right to directly or indirectly become the purchaser of real estate of the ward, sold by such guardian. And in this case, if the land of the plaintiff was sold at guardian's sale to Carl Scheel, and said Carl Scheel at the time of the guardian's sale was the husband of the guardian, then the sale would be void as between the said Carl Scheel and this plaintiff; and if defendant, at the time he purchased the land, knew that Carl Scheel was, at the time of the guardian's sale, the husband of Permilly Scheel, the defendant's title would be void as against plaintiff. (5) The purchaser of land must look to the title papers under which he purchased, and he is chargeable with notice of the facts appearing upon their face, and also with knowledge of the facts suggested therein which he might, with the exercise of reasonable prudence and diligence, have ascertained. And in this case, if you believe the facts recited in defendant's title papers were such as would have suggested to a reasonable man that Carl Scheel and Permilly Scheel were husband and wife at the time of the purchase at guardian's sale by Carl Scheel, then defendant would be chargeable with notice of that fact. (6) The conveyance from Permilly Scheel, guardian, to Carl Scheel, and from Permilly Scheel and Carl Scheel to defendant, are prima facie valid, and the burden of proof is upon the plaintiff to show that defendant, at the time he received the conveyance from Permilly Scheel and Carl Scheel, knew that at the time of the guardian's sale said Permilly Scheel and Carl Scheel were husband and wife, or that the recitals in defendant's title papers were such as to suggest that fact to a reasonable man, and such as would have put a person of ordinary prudence upon inquiry as to that fact; and, unless plaintiff does show these facts, you should find for defendant." The statute provides that the same rules that are prescribed in the sale of real property by executors and administrators shall be observed in sales by guardians, and as to sales by executors and administrators it is provided that the executor or administrator shall not, directly or indirectly, become the purchaser of the real estate sold; also that the executor or administrator shall make return of the proceedings under the order of sale to the court, which report shall be verified by affidavit, stating that he did not, directly or indirectly, purchase such real estate, or any part thereof, or any interest therein, and that he is not interested in the property sold except as stated in the report. Such an affidavit, made by Mrs. Scheel, accompanied her report of the sale in the present case. She was then the owner of ten-twelfths of the land in question, and her husband, through that sale and the deed made thereunder, became the owner of the remaining two-twelfths. It does not appear from the record that the fact of their relationship was known to or considered by the probate court. It is clear that, if Mrs. Scheel was directly or indirectly interested in the property sold by her as guardian to her husband, such sale was clearly illegal, and an illegal sale made by a guardian of a ward's property cannot be upheld as against the claim of the ward, seasonably made, unless it appears that the rights of innocent third persons would be injuriously affected by setting aside the sale. In the case of Bassett v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52, which was a case where the wife of an executor had purchased through a third person certain land belonging to the trust property sold at the executor's sale, the court said: "The incapacity of the trustee to become the purchaser at his own sale rests upon the ground of public policy. It is wholly immaterial whether the property brings its full value. Culver v. Culver, 11 N. J. Eq. 215; Mulford v. Bowen, 9 N. J. Eq. 797. The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some in terest in her land as on account of the unity that exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself." See, also, Davoue V. Fanning, 2 Johns. Ch. 251. In the present case the purchaser of the ward's interest in the land was the husband of the guardian who made the sale, and by such purchase he became a tenant in common with his wife, the guardian, in the ownership of the estate, of which they held apparently the entire title. We think the guardian thus became interested in the property sold beyond the law's permission. As to the general incapacity of one who sells property in the discharge of a trust to purchase the same, directly or indirectly, see the following: Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076; Gardner v. Ogden, 22 N. Y. 327; Riddle v. Roll, 24 Ohio St. 572; Land Co. v. Eastman, 80 Ga. 690, 6 S. E. 586; Hoffman v. Harrington, 28 Mich. 90. The decision by the supreme court of this state in the case of Webb v. Branner, 59 Kan. 190, 52 Pac. 429, rests on the same principle that underlies the foregoing. In that case the action was by a ward to recover an undivided interest in a lot in the city of Topeka. The facts in the record showed that the administrator, who was also the guardian of the plaintiff, had, by means of a third person, become the purchaser of the property; the intermediary having paid no consideration at the administrator's sale. The court said: "It was shown that a fair price was obtained for the lot, but, there being a manifest conflict between the duties of the trustee and his personal interests, the courts, for the purpose of removing all opportunities for frauds, generally hold such transfers to be void, whether they appear to be fair or not. The general rule is that the trustee is disabled from purchasing trust property, whether the purchase was made directly by himself or through another; and, besides, we have legislative prohibition." In addition to the foregoing it may properly be observed that in this state the husband and wife have an interest, either direct or indirect, in each other's real estate. In the case of Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, it was said: "A wife residing in this state is entitled, upon the death of her husband, to the half of all the real estate owned by him during marriage which has not been sold on judicial sale, and is not necessary for the payment of debts, and of which the wife has made no conveyance; so that there is no inchoate interest to the extent of one-half given to the wife in the real estate of her husband. It is true that this interest in the real estate of her husband is inchoate and uncertain, yet, according to the authorities, it possesses the ele ment of property. We now go further, and declare that, although the wife's right and interest in the real estate of her husband not occupied as a homestead is in choate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband for its protection, and for relief from fraudulent alienation by her husband. In Munger v. Baldridge, 41 Kan. 236, 243, 21 Pac. 159, where the wife had given the husband a power of attorney authorizing him to convey her inchoate interest in his real estate, the court said: "The interest of a wife in the real estate of her husband during marriage is a contingent one, it is true; but it is unquestionably property, and no reason has been advanced why she may not employ the husband to act for her, and, in conjunction with himself, convey it away." In Warner v. Broquet, 54 Kan. 650, 39 Pac, 228, it was declared that both husband and wife have an interest, either direct or indirect, in each other's real estate. The facts in the record show that Frazier purchased the land from Mrs. Scheel and her husband with knowledge that the latter's interest therein had been acquired under the sale made by Mrs. Scheel as guardian, and that his grantors were husband and wife at the time of that sale. His title papers also were sufficient to charge him with notice of the transaction whereby Carl Scheel became the purchaser of an interest in the land. "A purchaser of land must look to the title papers under which he purchases; and he is chargeable with notice of the facts appearing upon their face, and also with the knowledge of all facts suggested therein, and which, with the exercise of reasonable and prudent diligence, he might have ascertained." Knowles v. Williams, 58 Kan. 221, 48 Pac. 856. In view of all of the foregoing, we hold that the court did not err in giving or refusing instructions, that the verdict and the judgment thereon are supported by the proven facts and by the law, and that the question as to the jurisdiction of the court to render the judgment does not properly arise upon the record. The judgment of the district court is affirmed. BURNETT et al. v. HINSHAW. (Court of Appeals of Kansas, Southern Department,. W. D. Jan. 12, 1901.) DIRECTING VERDICT. Where there was some competent evidence tending to prove the defense as alleged, it was error to sustain a demurrer to the evidence. Error from district court, Reno county. Action by W. H. Hinshaw against J. O. Burnett and others. Judgment for plaintiff. Reversed. Defendants bring error. Wm. G. Fairchild, for plaintiffs in error. W. M. Whitelaw, for defendant in error. PER CURIAM. This action was commenIced in the district court of Reno county by W. H. Hinshaw, defendant in error, against plaintiffs in error, defendants below, upon their liability as guarantors on a certain promissory note for $3,000. The defendants below set up in their answer two defenses: First, a release evidenced by two alleged executory contracts set forth in their answer; second, that W. H. Hinshaw had become a holder of stock in the Sylvia Milling & Grain Company, and therefore could not sue the defendants below, they being, as claimed, joint stockholders with the plaintiff. The plaintiff, Hinshaw, filed a verified reply. The burden of proof being on the defendants below, they introduced their evidence, and rested. The plaintiff, Hinshaw, demurred to the evidence of defendants below, for the reason that it failed to show facts sufficient to constitute a defense to Hinshaw's claim against them. The trial court sustained the demurrer to the evidence, withdrew the consideration of the case from the jury, and rendered judgment for Hinshaw in the sum of $1,281.25 and costs, of which plaintiffs in error complain. We cannot give a synopsis of the evidence in this opinion, but, from our examination of the record, we conclude that there was introduced some competent testimony tending to prove the defense as alleged, and, as against a demurrer, under proper instructions, the issue should have been submitted to the jury. The judgment of the district court is reversed. REA-PATTERSON MILL. CO. v. MYRICK. (Court of Appeals of Kansas, Southern Department, E. D. Jan. 14, 1901.) DAMAGES-EXCESSIVE VERDICT-APPEAL. Error in an excessive verdict, in an action for breach of contract, may be cured by a remission of the excess. Error from district court, Montgomery county; A. H. Skidmore, Judge. Action by W. A. Myrick against the ReaPatterson Milling Company. Judgment for defendant, and plaintiff brings error. Affirmed. Ergenbright & Banks, for plaintiff in error. T. H. Stanford, for defendant in error. PER CURIAM. This was an action brought by defendant in error, as plaintiff, in the district court of Montgomery county, against plaintiff in error, to recover damages for the breach of a contract of hiring. The case was tried to a jury, which returned a verdict in plaintiff's favor for $2,183. Upon application of plaintiff, $239 of this amount was by the court remitted, judgment being entered for the balance. Defendant brings the case here. It is first contended by plaintiff in error that "the verdict is not supported by sufficient evidence, and is contrary to the evidence." As to this assignment of error, it is sufficient for us to say that there was some competent evidence to support the verdict, and under the well-settled rule, both of this court and the supreme court, the verdict will not be disturbed. It is next contended that "the jury was actuated by passion and prejudice against the defendant in the rendition of an excessive verdict." Counsel for plaintiff in error insist that, because the jury returned a verdict for an amount in excess of the amount shown by evidence to be due defendant, it was clear that such verdict was tainted with passion and prejudice, and that the court should therefore have granted a new trial. While it is true that the jury brought in a verdict in excess of the amount shown by evidence to be due the plaintiff, we cannot say that this fact, of itself, is sufficient to show that the jury was actuated by passion and prejudice. Our supreme court has in some instances held an excessive verdict to be evidence of prejudice and passion. An examination of the cases will show, however, the verdict was in every instance grossly excessive, and the trial court recognized this fact by remitting a large part of the verdict. We cannot say that the verdict in this case was grossly excessive. We think that the error was cured by the remission of the excess, and we so hold. See the cases of Railroad Co. v. Richards, 58 Kan. 344, 49 Pac. 436; Drumm v. Cessnum, 58 Kan. 332, 49 Pac. 78; Railroad Co. v. Dwelle, 44 Kan. 395, 24 Pac. 500; Railroad Co. v. Cone, 37 Kan. 578, 15 Pac. 499; Steinbuchel v. Wright, 43 Kan. 307, 23 Pac. 560; Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854. Complaint is also made of a certain instruction of the court, but, viewed in the light of the entire charge, we do not think that the instruction was prejudicial. The judgment of the district court is affirmed. (131 Cal. 187) CITIZENS' BANK OF LOS ANGELES v. (Supreme Court of California. Dec. 29, 1900.) MENT-NECESSITY-PLEADING. 1. On the foreclosure of a trust deed the complaint alleged that plaintiff was the owner of some of the bonds and coupons secured thereby. The trustee stated in his answer that it refused to sue solely because a majority of the bondholders had not requested it in writing, and an issue raised as to plaintiff's alleged ownership was determined in plaintiff's favor. Held, that the failure to allege that plaintiff notified the trustee of the number of bonds held by it when it demanded foreclosure was not such an uncertainty in the complaint as would justify reversal of the judgment on the merits because a demurrer for uncertainty and ambiguity was overruled. 2. Where demand on the trustee to foreclose a trust deed is made by an owner of bonds secured thereby, an offer to indemnify him is unnecessary if the trustee makes no demand therefor. |