"Q. What did he say to you? A. He says, 'Lady, don't go out in the street; stay on the sidewalk.'

"Q. What else did he say? A. Not another word; if he did, I failed to hear it."

Mr. Buck was a witness for the plaintiff, and testified:

That he saw Mrs. Conley when she fell. "I was on my front porch. * * The place where she fell was directly in front of my porch." He saw her coming down the street, walking moderately fast. "As she got to the corner of my ground next to the alley, she turned out to the south into the street and fell. At the time Mrs. Conley fell there were no obstructions in the street, but in the parkway there were about three, four, or five inch and quarter pump pipes lying lengthwise of the parkway; there were no lights or signals around the piles of pipe. The pile was about two and a half inches from the ground. They were laying so that a couple of them were on top of the others. I went down to where Mrs. Conley was. She was lying with her face and shoulders and the most of her across the curbing into the street. Her feet were on top of the pipe, or nearly so. I helped her up. There had been one pipe lying along there prior to that day. It had been there three days, I think. There was a watchman there on the street. The paving on Wyandotte had been completed clear to Twenty-Second street before the night of the injury. The street was

barricaded at the east end. There was a tem-
porary barricade in the way. *
I rath-
er think there was one light or something like
that there. Danger signals were put up on
Twenty-First street. Not clear across the
street. I cannot say whether there were dan-
ger signals or not. On the night of the injury
everything had been moved away from
there except the pump pipes."

Again counsel say that when she got within about 20 feet of the alley she then started to go out in the street itself, as instructed by the watchman, and stubbed her toe on an iron pipe or pipes that were lying in the parking.

To begin with, the city was in the exercise of its rights in improving the street and having the work done by the construction company. Both the city and the construction company owed to the public the duty to take reasonable precautions to warn pedestrians of dangers in the street. There were barriers across Wyandotte street at Twenty-First and Twenty-Second streets. Where plaintiff entered upon Wyandotte street the defendants had placed a watchman to warn night travelers what part of the street was safe to use. The plaintiff's testimony to the effect that when she started to walk down Wyandotte street the that street; stay on the sidewalk until you watchman rose up and said, "Don't go out on get further down by the crossing; then you can go out," and that he told her not to go out in the street, but to stay on the sidewalk, established the absence of any negligence on the part of the defendants. It was not required of the defendants that the watchman should call her specific attention to obstructions lying on the parking, since he had instructed her to stay on the sidewalk until she got down to the alley. It does not help plaintiff's case to argue that she was following the instructions of the watchman. She gives her own reasons for avoiding the alley, and disregarding the warning, and it is conceded that she turned across the parking at a point 20 feet before reaching the alley, in order to get into the street, and that she fell over the iron pipes lying lengthwise on the park strip.

sonably sufficient to warn pedestrians of the dangerous condition of the street. Gatewood v. Frankfort, 170 Ky. 292, 185 S. W. 847.

Much space is devoted in the briefs of both parties to a discussion of whether [2] It has been held that an instruction plaintiff was guilty of contributory negli- which limits the city to the use of certain gence. In our opinion, the important ques- methods of precaution is misleading and ertion is whether any negligence on the part roneous, for the reason that the city is reof the city or the contractor was estab-quired to use only such means as are realished. The negligence charged in the petition is that defendants permitted portions of the street ordinarily used for travel to be obstructed by certain water pipes without warning the traveling public of the presence of the obstruction by placing lights or other signals thereon or by warning the plaintiff of the presence of such obstruction. After referring to the fact that plaintiff, who testified several times, was not able to tell definitely where she fell, except that it was near the alley, counsel say in their brief:

"But we have the uncontradicted testimony of Mr. Buck, who picked her up, and the admitted testimony of Mr. Matoon, defendants' own witness, as to exactly where she fell. Their own Mr. Matoon says she fell at a point about 20 feet before she ever arrived at the alley."

"The test is whether the means employed are Under particular facts the sufficiency is often reasonably sufficient for the purpose intended. a question for the jury." McQuillin, Municipal Corporations, § 2804.

[1] While it has been said that "cases are rare in which the court can say as a matter of law that due care has, or has not, been exercised" upon the part of a city in keeping its streets in a reasonably safe condition for public travel (Holitza v. Kansas City, 68 Kan. 157, 159, 160, 74 Pac. 594), we have no hesitation in the present case in declaring as a matter of law that the plaintiff's testimony established the fact that the

(202 P.)

defendants used due care by warning the Appeal from District Court, Comanche plaintiff to keep upon the sidewalk, and not | County. to go into the street until she reached the alley or crossing.

(Syllabus by the Court.)

I. Vendor and purchaser 87—Vendor suing for purchaser's repudiation of agreement cannot contend payment was made under canceled agreement.

A contract was entered into for the sale of land for a fixed amount, to be paid by the delivery each year of the proceeds of two-thirds of the crop. The vendor, before any considerable payment had been made, brought an action for damages on account of the purchaser having repudiated and canceled the contract; the recovery asked being measured by the amount by which the contract price exceeded the market value, less any payments made. The defendant answered, alleging that a rescission of the contract had been effected by a subsequent oral agreement, by the terms of which he was to surrender the land and deliver the proceeds of two-thirds of the first year's crop, which was already harvested. Such share of the proceeds was paid during the pendency of the action. It is held that the plaintiff, having elected to sue for damages on the theory indicated, could not treat such payment as made under the original contract, nor successfully contend that the agreement to rescind had not been even partially performed, and was for that reason unenforceable.

Action by James E. Ely against C. Jones. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.

Jay T. Botts, of Coldwater, for appellant.
J. W. Davis, of Greensburg, for appellee.

MASON, J. On April 12, 1913, James E. Ely, the owner of a quarter section of land, entered into a written contract with C. Jones for its sale to him for $5,600, to be paid by delivering to the seller each year the proceeds of two-thirds of the crops, which were to include 100 acres of wheat. On July 29, 1914, Ely sued Jones, causing an attachment to be issued and levied upon personal property; his petition alleging that on July 23, 1914, Jones had repudiated and canceled the contract, thereby damaging the plaintiff in the sum of $1,600, for which amount judgment was asked. The defendant filed an answer on October 7, alleging that in July, 1914, the contract had been rescinded by an oral agreement, by the terms of which the plaintiff was to receive the proceeds of twothirds of the wheat crop harvested that year, which had been paid him. In a reply filed November 12, 1914, the plaintiff acknowledged the receipt of the proceeds of two-thirds of the crop of wheat which had been sown in 1913. A jury trial resulted in a verdict for the defendant, upon which judgment was rendered, from which the plaintiff appeals.

[1] The jury found specifically that the contract was rescinded by agreement. The plaintiff contends that the agreement for rescission, not having been in writing, was enforceable only in case it had been fully or partially performed. See Ely v. Jones, 101 Kan. 572, 168 Pac. 1102; 25 R. C. L. 579. The defendant's evidence was that it had been agreed that he should give the plaintiff two-thirds of the proceeds of the wheat and turn the place over to him and be released from the contract. All that was necessary to the full execution of this new agreement on the part of the defendant was that he should pay two-thirds of the wheat money to the plaintiff and relinquish his claims to the property. The plaintiff contends that the wheat money which was given him was received under the original contract for the sale of the land, and not under any later agreement. This is the vital point in his case, and we think it untenable for this rea3. Appeal and error 1070(2) Party may son: In suing the defendant for damages on not complain of nonprejudicial error in spe- the ground that he had repudiated and cancial finding. In vendor's action against a purchaser for celed the contract for the sale of the land breach of contract, plaintiff may not complain the plaintiff elected to treat that contract of a special finding as not according with the as at an end and to rely solely upon his remeinstruction as to the measure of damages, dy in damages. It is true he declared in his where he has suffered no prejudice thereby. petition that he had at all times been, and

(Additional Syllabus by Editorial Staff.) 2. Appeal and error 1015(5)-Trial court's ruling on motion for new trial for misconduct of counsel held conclusive.

The trial court's ruling on motion for new trial for alleged misconduct of counsel held conclusive because of superior opportunity to form a just opinion of the character and effect of the conduct complained of.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

still was, ready and willing to perform the things required of him under the contract, but in asking to recover once for all the loss he had sustained by the defendant's refusal to carry out the contract he chose to treat it as terminated-to retain the land and require the defendant to pay him the value of his bargain-the difference between the agreed price and what the property was worth on the market. Having taken that position, he could not subsequently reopen the matter for the purpose of receiving a payment on the contract and then continue the prosecution of his claim for damages.

"Upon election to treat the renunciation of the contract by the other party, whether by declaration or by acts and conduct, as a breach of the contract, the rights of the parties are to be regarded as then culminating, and the contractual relation ceases to exist except for the purpose of maintaining an action for the recovery of damages." 6 R. C. L. 1026; Wallingford Bros. v. McCray, 101 Kan. 146, 148,

165 Pac. 813; 20 C. J. 14.

based upon the theory that the plaintiff was to retain it.

[2] The plaintiff requested an instruction as to the necessity of the defendant proving part performance of the agreement to rescind. Because of the considerations already stated, we regard the refusal as nonprejudicial Complaint is also made because the court declined to submit to the jury a number of additional special questions, some of which are immaterial because of the view we have taken of the issue of part performance; none of the others is of such importance as to make its rejection a ground of reversal. A new trial is also asked on account of what

is alleged to be the misconduct of counsel for the defendant. The trial court's ruling on this matter must be regarded as conclu sive because of its superior opportunity to form a just opinion of the character and effect of the conduct complained of.

[3] An instruction was given, to which no

objection is made, to the effect that if the

defendant should be found to have broken the contract the measure of the plaintiff's damages would be the difference between the contract price of $5,600 and the market value of the land at the time of the breach, less whatever sums had been received by the plaintiff, including what had been paid him out

The payment of the wheat money therefore cannot be regarded as made under the original contract, and inasmuch as the jury accepted the defendant's evidence that an agreement for its rescission had been made, by the terms of which two-thirds of the pro- of the wheat crop of 1914. By a special findceeds of the wheat was to go to the defending which is not affected by any of the rulant, this payment to him must be deemed to ings complained of, the jury fixed the marhave been made under that arrangement. As ket value on July 23, 1914, at $31.25 an acre, or $5,000. When the petition was filed the plaintiff had received but $1. But in the reply it was set out that he had received the proceeds of two-thirds of the wheat crop, amounting to $668.06, on account of which he reduced his claim of damage by that amount. Inasmuch as the amount of cash received was more than the difference between the contract price as stated in the instruction and the market value as found by the jury, the plaintiff, by the test which is the law of the case, suffered no prejudice, even if errors were made affecting the issue concerning rescission.

was determined when the case was here before (101 Kan. 572, 168 Pac. 1102), the new agreement was supported by a sufficient consideration; for, while the defendant was already bound to pay this money to the plaintiff if the deal was to go through and the land was finally to be conveyed to him, he was under no obligation to do so if the plaintiff was to keep it. As already indicated, the plaintiff, in suing for damages on the ground that the defendant had repudiated and canceled the contract, elected to accept and act upon such renunciation and retain the land. The jury found, in answer to a special question, that subsequent to the conversation which The real controversy between the parties the defendant relies on as having accomplish-was one of fact-whether there had been an ed a rescission he had taken steps toward agreement to rescind the contract for the preparing the ground for wheat by doing some discing. The evidence showed, however, that this preparation consisted merely in making a round or two with a disc. It cannot be regarded as amounting to an assertion of a right to hold the land, in view of the fact that the pleadings of both parties were

purchase and sale of the land. The jury
having found in favor of the defendant on
this issue, we discover no sufficient reason
for setting aside the judgment based on that
finding.

The judgment is affirmed.
All the Justices concurring.

(110 Kan. 75)

(202 P.)

On receipt of this Gleed wired plaintiff as

S. ROSENFELD CO., Inc. v. GLEED et al. follows: (No. 23322.)

"Hold car eggs on arrival and wire for ad

(Supreme Court of Kansas. Dec. 10, 1921.) vice stating conditions."

(Syllabus by the Court.)

Trial 156(2)—Order sustaining demurrer to evidence held error.

The rule that on a demurrer to the evidence the court can take into consideration only those facts and inferences of fact which are favorable to the other party, and cannot consider the evidence of the demurring party which tends to break down the case of the party resisting the demurrer, is applied to the evidence offered in support of a cross-petition, and held, that it was error to sustain the plaintiff's demurrer. Can Co. v. Ross, 72 Kan. 669. 83 Pac. 616; Kerr v. Kerr, 85 Kan. 460, 116

Pac. 880.

On the same day his son, Herbert Gleed, went to New York and was there when the eggs arrived.

Plaintiff was to receive a commission of 11⁄2 cents per dozen, and the custom of the trade required consignee to pay the freight, cartage, any necessary costs of repacking, in case that became necessary, and that the consignor should repay such sums.

Claiming that a large number of the eggs were found to be broken and otherwise damaged, plaintiff brought this action against Fred Gleed and his son, Herbert Gleed, claiming they were partners, to recover $1,224.49, covering freight charges, cartage, $56 for re

Appeal from District Court, Douglas packing, and $100 cash advanced in addition County. to payment of the draft.

Action by the S. Rosenfeld Company, Incorporated, against Fred Gleed and another, copartners doing business under the firm name and style of Fred Gleed. Judgment for plaintiff, and defendant first named appeals. Reversed, and new trial ordered.

Riling & Riling, of Lawrence, for appellant.
C. C. Stewart, of Lawrence, for appellee.

The defendants filed an answer and crosspetition consisting of a general denial, with a special denial that defendants were copartners. It was alleged that the eggs were delivered to plaintiff in New York City in first-class condition and salable, neither musty nor otherwise damaged as alleged in

the petition; that the reasonable market value of the eggs was 50 cents per dozen, or $9,000 in the aggregate; that if the eggs were sold for less it was because the plaintiff failed to exercise reasonable care, skill, and diligence in handling and selling them; that if the eggs were in the condition alleged, they became so after they were re

PORTER, J. Plaintiff is engaged in the produce commission business in the city of New York. The defendant Fred Gleed is engaged in the same business at Lawrence, Kan; his son, Herbert Gleed, being manager. On August 19, 1919, Fred Gleed sent the fol-ceived by plaintiff. The cross-petition asked lowing telegram to plaintiff :

"Have car fresh candled eggs storage packed firsts shipment Wednesday if you care to buy out right wire price net New York. If not do you care to handle on consignment state terms

and amount draft I can draw."

for judgment against plaintiff for a balance of $1,440.46 claimed to be due Fred Glced.

Issues were joined, and the case came on for trial. The court after examining the pleadings, ruled that the burden was on plaintiff

is on the defendant. Under the pleadings everything is admitted that the plaintiff charges, except the partnership of Herbert Gleed and the $56."

On the same day he received an answer in- "if plaintiff wants to hold Herbert Gleed, to structing him to consign and draw $11 per prove that he was a partner, and to show that case. He wired an acceptance, stating that it was necessary to repack the eggs at the cost loading would begin Wednesday. A letter of $56. After those two things, the burden of confirmation was sent to him by the plaintiff under date of August 20. The day following he wrote that he had shipped "one car eggs, six hundred cases," and had drawn draft for $6,600, bill of lading attached. August 23 plaintiff wrote him to advise his bank to hold draft on arrival and to allow inspection, "as this time of the year we inspect the goods before we pay the draft, and if the eggs are as represented to be, we pay the draft then." Two days later he received a telegram from plaintiff requesting him to "wire bank to hold draft on arrival, wire railroad to deliver us twenty-five cases for inspection. Must inspect eggs before payment draft."

Notwithstanding this ruling, plaintiff assumed the burden, offering all of its evidence. The assistant manager testified that the eggs were damaged and were musty and the musty smell was noticeable when the cases were opened and offered for sale; that they were not salable in the condition in which they arrived and that it was necessary to repack them; that plaintiff does not handle other produce than eggs and butter; and that de fendant's eggs not offered for sale imme diately were kept in the refrigerator in plain

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tiff's building. He also testified that Her- I would see how my goods really arrived; thought bert Gleed was present when some of the maybe they fixed to put a deal on me."

eggs were offered for sale, and in his presence plaintiff was offered 43 cents per dozen for the eggs, and that Herbert Gleed was perfectly satisfied to sell them for that price. Samuel Rosenfeld, an officer of the plaintiff corporation, testified that the eggs were found to be broken, damaged, and musty on being removed to plaintiff's building; that plaintiff tried to sell the eggs but the customers returned them; that Herbert Gleed told them to sell them that way; if they could not, to put them in shape so they could be sold; that he told them to sell them for 43 cents per dozen. He testified from his experience that these eggs had been kept in storage with some other produce. He was corroborated as to the condition of the eggs by a number of employees. One testified that Herbert Gleed was there while the eggs were repacked. Another employee testified that Herbert Gleed told Mr. Rosenfeld that he had kept the eggs in cold storage for about a month, and that Rosenfeld told him there would be an amount due the plaintiff for overdraft on the car; that Gleed said "all right, he would send him a check for the difference," and to "do the best you can and

get the best price for those eggs."

The defendants offered their testimony.

Herbert Gleed testified that his father had

His testimony as to what took place after the carload of eggs had arrived and were being unloaded, in substance, was: Mr. Rosenfeld said, "Here are your eggs." The cases were on the floor of the storeroom, and nothing was said about their condition at that time. The witness remained there about four days, calling each day at the plaintiff's place of business. The first day "everything seemed to be moving along" all right, and the next morning, Saturday, he was there for possibly 15 or 20 minutes, and "everything was agreeable," and after that he went out for dinner. He returned Tuesday afternoon and "everything seemed all well and good," and he was told that plaintiff had moved about half of the eggs. He then stated that he intended to leave New York that night and would possibly need $100 and "without a word he [Rosenfeld] handed me $100 in cash.

We were expecting more money all that time." While the witness was in there, the plaintiff sold a number of the cases of eggs. He did not ask what they were selling for, but he knew eggs of this class were selling cents per dozen. on the produce exchange for from 50 to 51

None of the eggs were re

tradicted the testimony of the employees of packed while he was in New York. He conplaintiff as to statements alleged to have been

been in the business of handling eggs and made by him, and denied that he had given poultry for about 20 years; that he was manager of his father's business and was not He stated that the eggs were classed in New instructions to sell the eggs at reduced price. a partner; that the eggs in question were York as "fresh eggs," and that the first he brought to their place of business by the knew of anything being wrong with them was farmers in the neighborhood; were carefully ten days after he had returned from New candled; all small eggs, and cracked ones, York. Employees of the defendant testified and those that showed any inferior quality to the manner in which the particular eggs were taken out and No. 1 eggs packed and sent daily to the cooler; that all the eggs nesses, who had 15 years' experience, testiwere candled and stored. One of the witshipped to the plaintiff were candled by wit-fied that there was nothing in the cooler ness and Robert Davis; that he was about three weeks accumulating this carload; that he had 15 years' experience and that the eggs shipped to plaintiff were No. 1 eggs; none of the culled or small or inferior eggs were put in the cooler; that there was nothing kept in

the cooler but the eggs; that he had learned from experience that it would injure the quality of eggs if they were kept with fruit, and that he always kept the eggs away from fruit or anything that would injure their quality; that these eggs were loaded in the refrigerator car, which was properly iced.

In explanation of how he happened to go to New York he testified:

"After they told me to draw $11, which I did, and then receiving a wire from them telling me they couldn't pay the draft until they had inspected them, and I knew what had happened to me about a year previous; that I stopped a deal like that by going, and probably it was another case of the same kind, and I

where the eggs were stored except these eggs, which were placed there each day as they had been in cold storage longer than three were brought in by farmers, and that none weeks. Other witnesses testified to the manall the cracked ones, small ones, or "leakies” ner in which the eggs were candled and that were taken out and nothing but No. 1 eggs taken to the cooler; that there was nothing put into the car after the eggs were loaded;

that the 600 cases filled the car; that the car was iced with instructions on the bill of lading as follows:

"Under refrigeration. Ice to full capacity at all regular icing stations."

After testimony showing that none of the eggs had been in storage longer than three weeks, the defendants offered the testimony of experienced witnesses to the effect that the rule laid down by the United States Food