John K. Francis testified that: Stelson told him that if he would fix it up, he would not prosecute, but if I didn't, he would prosecute and send him to the penitentiary. That it would mean from three to five years. He said, 'If you will get your sister and your father on these notes, they will make them good, and I will give you all the time you want; will make it for five years without interest, as you don't get anything out of it, and we could be spending more money to get him back and send him to the penitentiary, but we don't want to do it; we want our money back.' Q. Now, what did you say at that time that you say he asked you to have your father and Mrs. Snook sign these notes? A. I told him I would take them up there and see what they had to say. He says, 'You tell them the circumstances in the case; he says, 'You tell them just how the circumstances are; if there isn't something done we will have to send and get him, and it looks like a shame to send him over the road from three to five years for a small amount like that.'" Mrs. Walter Francis testified as to what Stelson said to her father-in-law: “Well, he said that he wanted some notes fixed up: he would hunt my husband, go after him and pen him, he said, from three to five years." Frank B. Francis, a brother of John K. Francis, testified that: * The latter told Mrs. Snook he had drawn up some notes to get her and her father to sign; "that his boy Walter had got into trouble, and threatened to fetch him back and put him in the penitentiary if he didn't get these notes fixed up, and wanted to know if she would sign them, her and father. Q. Did he say who threatened? A. He said the bank did; Mr. Stelson had been there to his house. He asked her if she would sign the notes, her and father, and she said she didn't want father to sign them on account he was poorly if it was going to cause him trouble without her signing them, she would sign the notes with him to help him out. He told her Mr. Stelson had sent him up there and requested him to see her and have her sign those notes, and if she didn't sign them, he would have the boy brought back and prosecuted." Mr. Stelson testified, among other things: "I said we would get him. Q. He didn't say anything about getting this fixed up until after you made the threat you would get the boy if I wasn't fixed? A. I think that was about the first thing I said; I would get the boy if I didn't get the cattle. Q. After you made this threat, you think he said that he could get it fixed up with a note? A. Wanted to know if we couldn't get it fixed up. Q. Then you promised him if they fixed it up you wouldn't get the boy? A. It would be satisfactory if we got our note fixed up. Q. You kept your promise? A. Yes, sir." Mrs. John K. Francis testified: "Is defendant's wife; was present at a conversation between Stelson and her husband and heard Stelson tell him that if he didn't fix up the notes he would send the boy to the penitentiary for a certain period of years." [3] The jury and the trial court saw and heard the witnesses. The former returned the verdict and made the findings. The latter approved them. The court is not disposed to set them aside. Certain other matters are complained of, but require no discussion. Finding no substantially prejudicial error. JOHNSTON, C. J., and BURCH, MASON, PORTER, MARSHALL, and DAWSON, JJ., concurring. WEST, J. (dissenting). To my mind the evidence of duress is convincing and overwhelming. For all practical purposes it was admitted by the cashier himself, at least so far as John K. Francis is concerned. The trial court's definition of duress was in line with Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807, 20 L. R. A. (N. S.) 484, referred to with approval in Bank v. Bay, 90 Kan. 506, 135 Pac. 584. The case itself somewhat resembles Smith v. Bank, 90 Kan. 299, 133 Pac. 428; only there the threatened prosecution was entirely without basis, and here there appears to have been some ground for claiming that the young man had, to some extent, violated the law concerning the disposal of mortgaged property. While, as counsel suggest,, the two defendants may have been fitly regarded as exhibits by the jury, there is no indication that their brother or that Mrs. Francis or the wife of the young man bore any facial evidence of mendacity, and certainly when the testimony of all of them was practically admitted by the cashier of the bank, mannerisms and lack of pulchritude should not subvert the rules of law and the principles of justice. Again, it was said in Tanton v. Martin, 80 Kan. 22, 101 Pac. 461, that: sumption of honesty and innocence and all op"The preponderance which overcomes the preposing evidence, and is such as will lead a reasonable man to the conclusion that fraud exists, meets the requirements of the law." In view of all the positive evidence on behalf of the defendants and the admission of the cashier upon the stand, the jury should not have been told that before the defense of duress could be established, it must be proved by evidence not only clear and convincing but decisive. We are required by the statute (Gen. Stat. 1915, § 10973, subd. 2) to construe words and phrases according to the approved uses of the language. Dictionaries are supposed to determine what approved usage is. The dictionaries tell us what "decisive" means: "Having the power or quality of determining a question, doubt, contest, event, etc., final; conclusive; putting an end to the controversy; as, the opinion of the court is decisive on the question.' Century Dictionary. "Having the power or quality of deciding a question or controversy; putting an end to contest or controversy; final; conclusive." Webster's New International Dictionary, Edition of 1911. "Putting an end to uncertainty, debate, or question; determinative; conclusive; as decisive action; the decisive element was the weather." Funk & Wagnalls New Standard Dictionary. "Having the quality of deciding or determining (a question, contest, etc.); conclusive; determinative." Oxford English Dictionary. The result of these definitions is that it is something which turns the scale and decides the case. No such strictness of proof is re to make such requirement in this case. If the able and astute counsel did not avail themselves of the opportunity to impress the weighty meaning of this word upon the minds of the jurors, it was not because they lacked the opportunity so to do. Appeal from District Court, Logan County. Suit by the Atchison Savings Bank against W. A. Potter. Judgment for defendant, and plaintiff appeals. Reversed, and cause remanded. WEST, J. The bank sued to recover on a Kagey & Anderson, of Beloit, for appellant. It is not the purpose or policy of the law H. A. Russell, of Scott City, for appellee. to compound felonies or withhold prosecutions for criminal offenses by the execution of promissory notes. Whether the bank had a trumped-up claim against the boy or wheth-promissory note for $1,100 executed by the er he had removed the security for the defendant July 3, 1912. The defense was that amount it claimed due could make no dif- the note was obtained by fraudulent repre ference. The question is not the legality of its claim, but the effect of its threat. Williamson v. Ackerman, 77 Kan. 902, 94 Pac. 807, 20 L. R. A. (N. S.) 484. The judgment should not be affirmed. (100 Kan. 407) sentations, and was wholly without considerH. J. Harwi, president and cashier of the ation. It was alleged that James Bowie and Russell Springs State Bank, and Rollin Buell came to the defendant at his farın, whereupon Bowie offered to sell him certain stock in the last-named bank, representing that the shares belonged to T. M. Walker, president ATCHISON SAVINGS BANK v. POTTER. of the plaintiff bank, and that Walker wanted (No. 20802.)* (Supreme Court of Kansas. April 7, 1917.) (Syllabus by the Court.) to sell to the farmers of Logan county to interest them and their friends in the local bank, which was in first-class condition and able to pay a dividend of 20 per cent. for the year 1912; that the stock would be suffi 1. TRIAL 251(7) — ACTION-INSTRUCTION— WAIVER. In this case it was not error to refuse ancient to pay off and discharge the note, and instruction touching the matter of waiver. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 592.] 2. BILLS AND NOTES 539-GENERAL VERDICT SPECIAL FINDINGS CONSISTENCY. Under the rule requiring the harmonization of special findings with themselves and with the general verdict, the one returned by the jury, touching knowledge of the circumstances under which the note sued on was obtained by the plaintiff, did not constitute sufficient inconsistency to warrant a reversal. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1911-1913, 1934; Trial, Cent. Dig. § 859.] 3. EVIDENCE 135(2)—SIMILAR REPRESEN TATIONS-ADMISSIBILITY. When a party is charged with having made fraudulent representations, others of a similar character, made about the same time to other persons, may be shown in order to shed light upon the question of motive, but such statements made by others in the absence of the person charged are incompetent. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 392, 394, 404, 405.] 4. BANKS AND BANKING BANK STOCK-STATUTE. 40-TRANSFER OF The statute prohibiting the transfer of shares of stock in a failing bank (Gen. Stat. 1915, § 570) is for the protection of creditors, but as between the buyer and seller of stock the transfer may be binding. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 49, 51-54.] 5. BANKS AND BANKING 40-TRANSFER OF STOCK-CONSIDERATION FOR NOTE. The stock of a bank in a failing condition may still be a sufficient consideration for a note given for its purchase, and in this case it was error to instruct that no legal sale could be made if the bank was in a failing condition, and that the note given therefor would be without consideration if such stock could not, at the time, be legally transferred. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 49, 51-54.] the defendant would not be called upon to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "At the time it took the note, did plaintiff tiff bank, including Mr. Walker, the presi have knowledge of the circumstances under dent; that some of the others who sold stock which the note was obtained? Answer: No." The plaintiff appeals, and assigns as error the admission of improper evidence, the refusal of certain instructions, and the denial of the motion for new trial. at this time were customers of the plaintiff bank, and had purchased stock on the recommendation of the president or some officer thereof. "Q. And as a matter of fact, you folks felt some responsibility for them, didn't you, for recommending it? A. Not as a bank. Q. Not as a bank? They purchased the stock on your recommendation, and you didn't feel responsible? A. Your question was to me, upon recommendation of an officer of the bank. Q. What officer? A. Mr. Walker. Q. Mr. T. M. Walker? Now, when you received these notes, particularly this note of Mr. Potter's from Mr. Harwi's hands, at Atchison, you knew that it was for the purchase of stock of the Russell You knew the condition of the Russell Springs Springs State Bank, didn't you? A. I did. Q. State Bank, didn't you? A. Pretty well. Q. You were acquainted with the conditions out here? A. Yes, sir." Underneath all these complaints is the further one that the testimony failed to show agency on the part of the man who sold the stock to Mr. Potter. The plaintiff did not own the stock, but did pay the face of the note when it received it, and so the jury found. It would seem logically inevitable that in order to convict the bank of the alleged fraud, there must be testimony showing that Bowie was acting as its agent in making the representations to the defendant touching the dividends and condition of the bank. It is clear enough that Bowie, Harwi, and Buell went out to the defendant's farm and There were emphatic and repeated denials in about 15 minutes he was talked out of a of any authorization to anyone to make the note for $1,100. The answer charges the representations complained of, and the most three men with making the false representa-positive declaration that neither Harwi, Botions, but the jury acquit two of them and wie, nor Buell was its agent to look after his convict only Mr. Bowie. Buell was cashier interests. A good deal is said about the alof the Russell Springs bank, Harwi had been leged representation that the stock sold to and wanted to be, and Bowie was its presi- Mr. Potter belonged to Mr. Walker, the presdent. Mr. Buell had been recommended for ident of the plaintiff bank. We find no proof cashier of the Russell Springs bank by Mr. as to whom the stock belonged, but the testiWalker, president of the plaintiff bank. Mr. mony of Mr. Harwi would indicate that it Walker was well advised as to the condition was treasury stock, as he testified that the of the latter bank and of the complaints to certificate was still attached to the stub at and the demands by the bank commissioner. the time of the trial. At any rate, the jury Mr. Woodford, the plaintiff's cashier, was confined the false representations to the divikept posted by Mr. Buell as to the situation dends and condition of the bank, eliminating at Russell Springs, and when the note sued any question as to the ownership of the on was executed, the Russell Springs bank stock. was technically insolvent. On the 20th of June, 1912, the bank commissioner wrote Mr. Walker advising him not to take any action without talking with the commissioner about it, adding: "We might get our objects crossed unless we work together. I would be glad indeed to keep you fully informed, as the case goes on." The theory of the defense is that the Atchison people undertook to unload the stock of the Russell Springs bank by going out into the remote regions and selling it to the wellto-do farmers, that part of the scheme was to have the local man in whom farmers had confidence go out and induce them to buy; that by telling the defendants that Mr. Walker of the Atchison bank wanted to sell his stock because it was too far away from him the farmer would be led to believe that what was good property for Mr. Walker would be good for him. The theory of the plaintiff is that the stock selling project was largely for the purpose of reinstating Harwi as cashier. Mr. Harwi wrote to the bank commissioner September 7, 1912, inclosing a request of stockholders that he be reinstated, saying: On the same day he wrote Harwi to cease all further making of loans, allow no further overdrafts, and honor no checks on the bank which would result in overdrafts. On the 24th of June he wrote the directors of the Russell Springs bank, including James Bowie, ordering them to remove Mr. Harwi as cashier, basing the order on the condition of the bank. On June 27th he wrote Mr. Walker that his assistant had succeeded in establishing Mr. Buell as acting cashier "in accordance with your wishes as expressed in your letter introducing Mr. Buell." On the 7th of July Mr. Buell wrote the bank commissioner touching the condition in which he Another letter on the same day stated that found things in the bank, which letter was certain named stockholders had sold all of on the 9th forwarded to Mr. Walker. From their stock, among them T. M. Walker, that Mr. Woodford's testimony we learn that it was bought by people whose names were when Mr. Buell was sent out to the Russell inclosed, including W. A. Potter, 10 shares. Springs bank it owed the plaintiff bank between $40,000 and $50,000; that some of the stockholders were stockholders of the plain "You will see that not counting my mother's stock and mine, that all the stock has signed this request except 46 shares, and they would have all signed had they been able to be here." On the same day a letter from the stockholders, all requesting the reinstatement of Harwi was written signed by 13 stockholders in cluding the defendant. This was but little a time conditions were changed for the more than two months after he had bought better, and doubtless at many times during the stock and given his note therefor. While his long ownership he could have sold for a there may be some foundation for both the- fair consideration. ories, the jury adopted the former. [1] It is urged that the defendant, by paying no attention to his investment for two or three years, not even paying the interest or requiring the stock to be delivered to him or attempting to exercise the rights of a stockholder, should be held to have waived any defense on the ground of failure of consideration, as he knew of Harwi's deposal and reinstatement and of the condition of the bank within a short time after he had bought the stock. But waiver was not pleaded; and, in any aspect of the case it should not be decided on this point. [2] Complaint is made that the findings are inconsistent, in that one was to the effect that the bank authorized or permitted somebody to make false representations to procure the note and another that it did not know the circumstances under which the note was obtained. It is suggested with considerable force that if according to still another finding the plaintiff authorized Bowie to make false representations, it knew what they were. The word "circumstances" as used in the finding is a very uncertain term, and might include the number of men who went together, the kind and amount of talking done and by whom, or various other things. If, as found by the jury, the bank authorized some unnamed person to secure the note by fraud, and Bowie did so secure it, and it took and paid for such note, it cannot make much difference how detailed a knowledge it had of the circumstances, for in effect it would be receiving the fruits of its own wrong. And it can hardly be said that the finding is so inconsistent with the others and with the general verdict as to require re versal. [3] It is complained that evidence of similar representations made to other purchasers of stock about the same time were admitted. Assuming that the agency was established, similar transactions on the part of the same agents would be competent as showing motive, but in one of these other instances Bowie was not present, and as no one is accused by the jury of having made any false statements except Bowie, it is not perceivable how statements made by others to other purchasers could show any motive on the part of Bowie, and to this extent the evidence was erroneously admitted. The defendant seems to have paid no attention to his investment for a long time, and finally, when sued on his note, defended on the ground that it was procured by fraud and wholly without consideration. While the bank was technically in an insolvent condition, it does not necessarily follow that the stock was of no value whatever, for after Four days after the note was given Mr. Buell wrote the bank commissioner that, while the bank had loaned too liberally, he believed the employés of the bank had done no crooked work; that the notes were well secured. "The makers of the notes have the stuff and so it is only a question of time until everything will be in good condition." This letter was transmitted by the recipient to Mr. Walker, and Mr. Woodford wrote back saying, among other things: "Buell is a man who forms his own opinions regardless of his surroundings and we are forced to admit and glad to do so that Mr. Walker found the conditions exactly as set forth by Mr. Buell." On September 7th, after the Buell letter was written, Harwi wrote to the bank commissioner, giving a list of stockholders who had bought stock, including "W. A. Potter, 10 shares, Pence, Kansas." [4, 5] In the ninth instruction the jury were told that: If the bank was in a failing condition on July 3, 1912, "then no legal sale of stock in said bank could be made, and the note sued upon would be without consideration, if nothing was given for it by the plaintiff, or nothing other than the attempted sale and transfer of bank stock if such stock could not at the time be legally transferred:" This means that stock which sold at 110, in a bank regarded so highly by Buell and Woodford could constitute no consideration for the note. The statute prohibiting the transfer of shares of a failing bank (General Statutes of 1915, § 570) is for the protection of creditors, but as between the buyer and seller of stock the transfer may be binding. "An unregistered transfer of stock would not be invalid as between vendor and vendee. Bank v. Strachan, 89 Kan. 577, 582, 132 Pac. 200, 46 L. R. A. (N. S.) 668. * * * 99 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in this state that will affect the title of the mi- berger were then married. February 15, nors to land situated in another state. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 255-272.] 2. WILLS 740(4)—MISTAKEN CONSTRUCTION -RELIEF. Relief will not be granted against a mistake in the construction of a will where that relief must be given at the expense of minors, beneficiaries under the will, who had nothing to do with the mistake, and whose interests cannot be adequately protected by any judgment that the courts of this state can render. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1892-1894.] Appeal from District Court, Cowley County. Action by Edgar L. Terry against George E. Miller and others. Demurrer of guardian ad litem for minor defendants to petition sustained, and plaintiff appeals. Affirmed. Hackney, Lafferty & Moore, of Winfield, for appellant. J. E. Torrance and O. W. Torrance, both of Winfield, for appellee. MARSHALL, J. This case comes to this court on an appeal from a judgment sustaining a guardian ad litem's demurrer to the plaintiff's petition. The action arises out of the will discussed and construed in Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, 30 L. R. A. (N. S.) 343, and in Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950. 1905, Emorette A., Ella L., Dora A., Frank L., and Walter O. Wiltberger executed and delivered a general warranty deed, conveying the northwest quarter of section 25, in township 32, south of range 3 east, in Cowley county, to George E. Miller; and on March 30, 1905, George E. Miller and his wife executed and delivered a general warranty deed conveying that real property to the plaintiff. At the time these deeds were executed and delivered, all the parties believed that, under the will, the Wiltbergers, grantors in the deed to George E. Miller, had perfect right to, and that their deed did, convey a feesimple title to the real property. H. T. Trice, a real estate agent, acted as the agent for the Wiltbergers in making the sale to George E. Miller, who was an employé of H. T. Trice, and to whom the deed was made for convenience. $10,400 was paid to the Wiltbergers for the land. This money, together with other money received from the sale of the other property devised by the will, was invested in land in McHenry county, Ill. The deed conveying the Illinois land to the Wiltbergers contained the following provisions: "It is expressly understood and agreed that the respective interests which the several granThe petition discloses the following: Le- tees above mentioned shall take hereunder is as follows: Emorette A. Wiltberger is to have a nora A., Helen F., and Frank L. Wiltberger life estate so long as she may live and during are minor children of Frank L. Wiltberger, her lifetime is to have control and enjoy the deceased, and are residents of McHenry coun- possession, income, rents, profits and all emoluments of said real estate so long as she may live ty, Ill. Stella and Dale E. Wiltberger are and the said Walter O. Wiltberger, Ella L. minor children of Walter O. Wiltberger, de- Wiltberger, Frank L. Wiltberger and Dora A. ceased, and reside in De Kalb county, Ill. Wiltberger shall have the remaining fee title in and to said real estate, subject only to the life Charles L. Wiltberger died in Cowley coun- estate of their mother, Emorette A. Wiltberger. ty, Kan., and at the time of his death owned their respective interests being equal, each of the northwest quarter of section 25, in town- them taking the undivided one-fourth interest in said remaining fee title; but in the case of the ship 32, south of range 3 east. He left sur death of any of said four last-named grantees viving him his widow, Emorette A. Wilt-before the death of their mother, Emorette A. berger, and their children, Ella L., Dora A., Frank L., and Walter O. Wiltberger. Charles L. Wiltberger left a will, which was duly probated in Cowley county. The parts of this will material to the present controversy are as follows: "After the death of my said wife, it is my will that all of my property, both personal and real, wherever situated, being at present in the states of Kansas, Illinois and South Dakota, shall be divided equally among my four children, namely: Walter O. Wiltberger, Ella A. Wiltberger, Frank L. Wiltberger and Dora A. Wiltberger. "If any of my said children shall die before my wife, Emorette A. Wiltberger, then it is my will, that the share which would go to my deceased child or children, if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among their children." Wiltberger, without leaving living issue, then his or her share shall be divided equally among the remaining last-named grantees." After the Illinois land had been purchased, Frank L. and Walter O Wiltberger died, leaving their wives and the minor children above named. In September, 1915, Emorette A., Ella L., and Dora A. Wiltberger commenced a suit in equity in the circuit court of McHenry county, Ill., to determine the interest of the widows of Frank L. and Walter O. Wiltberger, and of their minor heirs, in the Illinois land, and to compel the minor heirs to elect whether they would take the Illinois land conveyed by the deed or the Kansas land devised by the will. That suit is still pending and undetermined. The estate of Walter O. Wiltberger is in process of administration in De Kalb county, Ill. Το The plaintiff asked equitable relief. the petition the guardian ad litem for the Ella L. and Dora A. Wiltberger were single minor defendants filed a demurrer, which was at the time of the death of Charles L. Wilt-sustained by the court. Service was made on berger, while Frank L. and Walter O. Wilt- the minors by publication. |