them bound by the lease, there still remained the other defense that plaintiffs had failed to comply with its terms. They admitted their failure to comply within the time stip

by showing facts constituting a waiver and estoppel on the part of defendants. This raised an issue of fact upon which the evidence was conflicting, the defendants contending that they used the gas not with the intent to ratify the lease, but relying upon the promises of the plaintiffs to have a new and satisfactory lease executed.

The court found all the issues in favor of the defendants. If there had been a special finding in favor of plaintiffs on the question of estoppel, the general finding would have been narrowed down so as to appear conclusively to rest on the defense of alteration. But there is no special finding on that issue, and the plaintiffs neglected to ask the court to make further findings or to modify those made. They are therefore bound by the findings which the court did make. Cowling v. Greenleaf, 33 Kan. 570, 6 Pac. 907; Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264. There was evidence sufficient to support a finding that the defendants were not estopped, and a finding to this effect is necessarily included in the general finding of the court from which there is no escape for the plaintiffs.

strument was in evidence and compared with her own signature, and there was a variance in the spelling of her name as it was written in different parts of the instrument and the acknowledgment. On the trial the court call-ulated, and sought to avoid the effect thereof ed a jury in an advisory capacity, and submitted to them certain special questions, and gave an instruction that the burden was on the plaintiffs to prove the due execution of the lease by the fair weight and preponderance of the evidence. It is claimed that this was error and that the court evidently misconceived the law, and, in adopting the findings, failed to give proper weight to the evidence. Conceding that the instruction was erroneous, it has been often held that the disposal of the burden of proof is of slight importance, and, where all the evidence has been introduced, it becomes immaterial where the burden rests. McCormick v. Holmes, 41 Kan. 265, 21 Pac. 108; Milling Co. v. Ellis, 76 Kan. 795, 92 Pac. 1114. The procedure followed in this case is a fair illustration. Plaintiffs assumed the burden at the outset, and offered the evidence of expert witnesses to prove that the signature of Mrs. Fletcher was genuine. The case was tried by the court with the aid of a jury, and, since all the evidence either side had to offer was introduced, it will be assumed that the court, in adopting the findings of the jury, gave proper weight to all the competent evidence. We have carefully examined the claim of error in the admission of evidence, and find nothing which would warrant a reversal. The questions objected to were proper crossexamination. It is quite apparent that the court attached considerable importance to the defense that the lease was altered after it was signed and acknowledged. Five of the six questions submitted to the jury hinged upon the fact of alteration, and the court adopted the findings which were all against the plaintiffs on that issue, which was wholly immaterial if the plaintiffs' contentions are correct as to the law in respect to the alteration of written instruments. If it were necessary to decide the question, we would be inclined to hold with plaintiffs that since Joseph Fletcher testified that it was his intention at the time he executed the lease and also the intention of the notary to The provision of the act of 1905 (Laws have the lease cover the northwest quarter of 1905, p. 379, c. 227), that the extra allowance section 20, and it appeared beyond question for boarding and lodging prisoners shall not be that the figure "4" in the typewritten lease operative until the board of county commissioners of the county shall make an order in writwas the result of a mere typographical er-ing to that effect and shall enter the same on ror, the alteration was not such a one as would avoid the instrument, because it was a correction which expressed the intent of both parties, and was not a material alteration. 2 Cyc. 148, D, and cases cited.

The judgment will be affirmed. All the Justices concur.

BOARD OF COM'RS OF ATCHISON
COUNTY v. SMITH.

(Supreme Court of Kansas. Nov. 6, 1909.)
1. SHERIFFS AND CONSTABLES (§ 29*)--COM-
PENSATION-STATUTES.

Chapter 250, p. 421, Laws 1903, regulating the compensation of the sheriff and other officers of Atchison county, is not superseded or annulled by chapter 227, p. 379, Laws 1905, and must be measured by the provisions of the earthe compensation of the sheriff of that county lier act.

[Ed. Note. For other cases, see Sheriffs and Constables, Dec. Dig. § 29.*]

2. CONSTITUTIONAL LAW (§ 63*)-DELEGATION OF LEGISLATIVE POWERS - COMPENSATION OF SHERIFFS.

--

their journal, is not an invalid delegation of legislative power.

al Law, Cent. Dig. §§ 108-114; Dec. Dig. § [Ed. Note.-For other cases, see Constitution63.*]

(Syllabus by the Court.)

Error from District Court, Atchison County; B. F. Hudson, Judge.

There are reasons, however, which render it unnecessary to consider or determine what kind of alterations will avoid a written instrument of this character. Irrespective of whether defendants were either or both of

Action by James A. Smith against the Board of County Commissioners of Atchison

County. Judgment for plaintiff. Defendant has received full compensation. The spebrings error. Reversed and remanded.

W. W. Guthrie and T. A. Moxcey, for plaintiff in error. James W. Orr and W. P. James W. Orr and W. P. Waggener, for defendant in error.

cial act was passed prior to the recent amendment of the Constitution in relation to the enactment of special laws; but in fact no claim is made that the act violates any provision of the Constitution. It is contended, however, that the act of 1905 supplants the special act in respect to the boarding and lodging of prisoners. It is general in char

JOHNSTON, C. J. The question for decision in this case is whether James A. Smith, the sheriff of Atchison county, is entitled to recover compensation for official services un-acter and provides, among other things, that der chapter 250, p. 421, of the Laws of 1903, or according to the provisions of chapter 227, p. 379, of the Laws of 1905. The sheriff presented a claim for boarding prisoners during the years of 1905 and 1906, and his account was allowed at the rate of 40 cents per day for each prisoner. He was also allowed fees and actual expenses for taking prisoners to penal institutions and patients to charitable institutions; but these allowances were for the maximum compensation provided for by the act of 1903. On the theory that he was entitled to compensation under the act of 1905, he presented to the board of county commissioners a bill asking 10 cents per day for each person boarded in addition to the allowance already made, amounting to $702.60, and his claim also included $109.50 more than had been previously allowed for conveying prisoners and patients to the prisons and hospitals, as well as an extra fee of $2 for drawing a jury. The claims were disallowed by the board; but in an action brought in the district court judgment awarding him the amount claimed was rendered.

Chapter 250 of the Laws of 1903 is a special act fixing the compensation of the sheriff and several other officers of Atchison county. It provides that the sheriff may charge, as full compensation for his services, certain fees prescribed in another act, and then proceeds to provide that he may retain fees up to the amount of $2,500 per annum, and that, if in any year the total amount of the fees collected in the county exclusive of the amount allowed for carrying persons to penal and charitable institutions shall be more than $2,500, he shall be required to pay one-third of such excess into the county treasury; but, in case the amount of the fees collected is less than the sheriff is permitted to retain, the commissioners are authorized to make good the deficiency by an allowance, and the uncollected fees, when paid, are to go into the county treasury. This act is more liberal in its provisions for the sheriff than was the general law in existence when the former was enacted. It fixed the compensation of the sheriff of Atchison county, at least until the passage of the act of 1905, and is still the controlling law, unless it has been superseded or restricted by the act of 1905. If the special act governs, the sheriff

in counties where sheriff's fees are regulated by a general law the sheriff shall receive an additional allowance of 10 cents per day for boarding and lodging prisoners; but it is provided that the additional fees shall not be paid in any county until the board of county commissioners shall make an order in writing to that effect and shall enter the same on their journal. There are two patent reasons why the sheriff of Atchison county may not receive the additional allowance which he claims by virtue of this act. The first one is that his fees and compensation are not regulated by a general law, but are expressly provided for in the special act of 1903. For that reason alone the sheriff may not avail himself of the provisions of the later act. Another reason which bars any claim of his for the additional compensation is that the commissioners have not made the written order bringing the county within the scope of the act. It is argued that this provision is an invalid delegation of legislative power. The act is in itself complete; but its operation depends upon the will and action of the board of county commissioners. Laws, the operation of which depend upon such a contingency, have been frequently sustained. Noffzigger v. McAllister, 12 Kan. 315; Keyes v. Snyder, 15 Kan. 143; L. L. & G. R. Co. v. Com'rs of Douglass County, 18 Kan. 169; Phoenix Ins. Co. v. Welch, Supt., 29 Kan. 672; State ex rel. v. Hunter, 38 Kan. 578, 17 Pac. 177.

Aside from this consideration, the Constitution provides that the Legislature may confer upon tribunals transacting the county business such powers of local legislation and administration as it may deem expedient. Under this provision the power of the kind in question can be given to the board of county commissioners. Noffzigger v. McAllister, supra; Com'rs of Harper Co. v. State ex rel., 47 Kan. 283, 27 Pac. 997. The sheriff, having received all of the fees to which he is entitled as measured by the controlling statutes, cannot recover the additional amounts claimed.

The judgment of the district court will therefore be reversed, and the cause remanded, with directions to enter judgment in favor of the appellants. All the Justices concur.

WILMOTH v. WHEATON. (Supreme Court of Kansas. Nov. 6, 1909.) 1. EVIDENCE (§ 582*)-STENOGRAPHIC NOTESADMISSIBILITY.

The provisions of section 1, c. 494, p. 810, Laws 1905, do not constitute a restriction of the use to be made of stenographic notes in a nisi prius trial, but are an extension of such

use.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2422; Dec. Dig. § 582.*]

2. EVIDENCE (8 582*)-EVIDENCE ON FORMER TRIAL.

To reproduce the testimony of a witness deceased or absent from the jurisdiction of the court who has testified to the fact in issue on a former trial, it is not error to permit the court stenographer to translate and read his stenographic notes of such evidence in the hearing of the jury, instead of requiring that the notes be transcribed and certified.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2419-2423; Dec. Dig. § 582.*] (Syllabus by the Court.)

3. WORDS AND PIIRASES-TRANSCRIBE."

Technically the word "transcribe" means to write across or over. As generally used, it means to reduce to writing, and, as applied to notes of a stenographer as he is required to translate his notes before he can transcribe them, his translation can be as accurately expressed in words as in writing, and such translation would be as binding on his conscience as his certificate to the notes transcribed.

Error from District Court, Allen County; Oscar Foust, Judge.

Action by D. D. Wilmoth against C. H. Wheaton. Verdict for defendant, and plaintiff brings error. Affirmed.

is the ruling of the court permitting the reading by the stenographer of his stenographic notes of the testimony of two witnesses taken at a former trial, and the objection made in each case was that the notes had not been transcribed and certified to by the court stenogragher, as required by law. As to one of the witnesses, it was admitted that he had been subpoenaed, but at the time of the trial was out of the county. As to the other, there was testimony that at the time of the trial he was in St. Louis, and it does not appear whether or not any diligence had been exercised to have him in court. However, there is no objection as to either witness that such diligence had not been exercised. The only question then presented is whether section 1, c. 494, p. 810, Laws 1905, is a limitation upon the use of the stenographic notes of court reporters to a written transcript of the notes certified or verified by the affidavit of the stenographer as a true transcript. Prior to the enactment of chapter 189, p. 305, Laws 1885, which authorized the appointment by district courts of court stenographers, the only method of securing the evidence which had once been given in court by a witness, afterward deceased, was to call witnesses who had been present and heard his testimony on the former trial; and, if a witness had departed from the jurisdiction of the court after the former trial, his evidence might be reproduced in the same manner. After the appointment of stenographers in the district courts, the courts recognizing that the notes of a stenographer taken at the time were probably more accurate than the memory of any witness who may have heard the words repeated, the practice was to have the stenographer sworn as a witness and to have him read his notes in aid of his memory; the fiction being generally maintained that, like other witnesses, he must speak from memory. Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers, the Legislature enacted chapter 494, p. 810, Laws 1905, section 1 of which reads as follows: "That the transcript of notes of any duly appointed court stenographer of any proceedings taken by such stenographer in any court of record in the state of Kansas which shall thereafter be transcribed by such stenographer, and thereafter verified by his affidavit as being a full and true transcript of the notes taken by him at any trial or other legal proceeding before such court of record, or certified by him to be a true copy of all the evidence of any witness or witnesses used and examined in any such legal proceedings before a court of record, may be introduced in evidence by any party desiring to use the same under like circumstances and with like effect as the deposition of such witness or witnesses." The plaintiff in erThe only error complained of on the trial ror contends that this act is a limitation up

Cullison & McMillan and Chris Ritter, for plaintiff in error. Baxter D. McClain, for

defendant in error.

SMITH, J. The plaintiff in error brought suit before a justice of the peace in Allen county against the defendant in error to recover damages for injury to his team and wagon resulting from a collision between the team and an automobile. By appeal the case was taken to the district court of the county where it was tried to a jury three different times. The first trial resulted in a hung jury, the second in a small verdict for plaintiff, which was set aside by the court and a new trial granted, and a third trial resulted in a verdict for the defendant. To To correct alleged errors in the last trial plaintiff in error brings the case here.

The only issue of fact tried in the case was whether or not Wheaton was the owner and occupant of the automobile involved in the collision. A number of witnesses undertook to identify Wheaton as the driver of the automobile at the time of the collision, and a larger number, including himself, testified to an alibi for him, and a number testified that Wheaton's automobile was at the time of the collision in a garage knocked down and in no possible condition for use.

abrupt means of stopping the train, caused | ger, or to make the announcement in a loud an unnecessary lurch of the caboose? voice and in a manner deemed to show excitement.

The direct evidence on the subject of the engineer's conduct was that on his discovery of the fire the train was brought to a standstill by the ordinary or service stop. There was such evidence, however, of the different

the air brake is used, and of the degree of jolting that actually resulted in this instance, as to leave room for the inference that in fact an emergency application was made. For the purposes of the case, therefore, the evidence must be deemed to have established that the emergency stop was used, instead of the service stop. The time thereby saved is shown to have been slight, and the argument is made in behalf of the plaintiff that the more gradual method would have answered the purpose as well as the abrupt one that was employed, and that the lurch of the caboose that caused his fall was due to the unnecessarily sudden application of the brake, which therefore constituted actionable negligence. In the solution of this question, as of that already discussed, little aid is to be had from the decisions. The general principle is not doubtful. The only difficulty lies in its application. The court concludes, however, that where an engineer of a freight train containing cattle, the shippers of which are riding in the caboose, discovers while between stations a fire in one of the cars, he is justified in bringing his train to a stop as soon as is consistent with safety to the passengers while in the caboose, and his use of the speediest means to accomplish that purpose, although it necessarily results in more or less severe jolting, cannot be regarded as such negligence as to charge the railway company with liability for injuries resulting to a passenger standing on the platform of the caboose of whose presence in that place he had no knowledge. It results from this view that the demurrer to the plaintiff's evidence should have been sustained, and on that account the judgment is reversed.

The evidence necessary to a determination of the first part of this inquiry is found largely in the testimony of the plaintiff, and may be fairly summarized thus: The train was between stations running about 30 miles an hour. About noon the conductor, who was seated with the passengers under the cupola, | effects ordinarily produced, according to how said in an excited manner and in a voice so loud that they heard him distinctly above the rumbling of the train either "This damn train is burning," or "That damned car is afire." A brakeman who had been in the cupola at once jumped to the floor, and said, "Take buckets," or "Grab buckets," adding something about the fire. The plaintiff, being much excited and alarmed by the word "fire," rushed to the rear of the car to see where the fire was and what danger he was in, if any, and to provide for his safety if there was danger from fire. He went out upon the platform, descended to the first step, and looked up the side of the train, when a lurch of the car threw him off. The theory of the plaintiff is that the conduct of the conductor and brakeman was of such a nature that the effect produced on the plaintiff could reasonably have been anticipated, and that it was negligence to communicate to him the fact of the fire in such a manner. This feature of the case turns upon the soundness of this contention. None of the cases cited by either party is of any special value in determining this question. Of course, a panic might well be regarded as the natural result of an abrupt announcement of a fire made on a vessel at sea, or in a crowded auditorium, or even in any large building. But the possible peril to passengers in a caboose from a fire elsewhere in the train is not so imminent or so great as to present an analogous situation. If the action of the trainmen in announcing the fire did constitute negligence, it must be because it was their duty either to conceal from the plaintiff the fact of the fire, or in telling him of it to caution him to remain in the car, or at least to advise him that he was in no personal danger. The words used contained nothing to suggest any dangerous condition beyond the mere fact that a car somewhere on the train was on fire. They were not addressed specifically to the passengers. That they were spoken loudly did not add to or change their meaning. The noise of the train required them to be loud in order to be heard. And their significance could not be affected by their having been uttered in what the plaintiff regarded as an excited manner. The expression used by the conductor suggested the excitement of irritation rather than of fear. This court is of the opinion that as a matter of law it was not negligence for the trainmen to inform the passengers of the existence of a fire on the train, or to give the information without any accompanying

BURCH, SMITH, PORTER, and GRAVES, JJ., concurring. JOHNSTON, C. J., and MASON and BENSON, JJ., dissenting.

On Rehearing.

MASON, J. The facts are stated in the original opinion. The vital inquiry for the further consideration of which a rehearing was granted is this: Did the evidence justify the trial court in submitting to the jury the question whether the words and conduct of the conductor and brakeman on the discovery of the fire were such as naturally to lead the plaintiff to suppose that by reason of it the interior of the caboose had become a place of danger, and to seek safety on the platform? If so, the verdict must stand; for,