State v. County of Marion, 21 Kan. 419. The contract which it undertook to make with the plaintiff was therefore in excess of its legal authority and unenforceable.

executive officers will not be interfered with [5] 5. The county board had no power to by courts in that manner. It does not fol- provide for the erection of a permanent buildlow that, where the controlling body of aing without a vote of the people. Gen. Stat. public corporation, in the exercise of its judg- 1915, § 2552; ment as to governmental policy, sees fit to refuse to proceed with a contract to which it has committed itself, preferring to answer in damages for any resulting loss to the contractor rather than to carry out a course which it has determined not to be for the best interests of the community, it can be compelled to perform specifically its engagements by a writ of mandamus. It will be assumed without deciding that the present case falls within the class to which mandamus is applicable.

[6] 6. The plaintiff seeks to avoid the effect of these considerations by invoking the principle by which it is held that, where the action of a public body depends upon authorization by prior proceedings, its finding as to the result of such preliminary steps, made in good faith, is conclusive. State ex rel. v. Holcomb, 95 Kan. 660, 149 Pac. 684; Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5.

The cases cited involve the ascertainment of facts concerning which there might be some room for a difference of opinion. The time for which a notice has been published in a newspaper is a subject which admits of exact knowledge and absolute proof, and a finding contrary to the fact cannot be made the basis of official power. That the publication of the notice of an election to vote

[2] 2. The statute requires that a notice of an election to vote upon the question of issuing bonds to cover the cost of a county building shall be published in the official paper "for not less than thirty days preceding the day such special election is to be held." Gen. Stat. 1915, § 2553. Here the election was held on August 1, 1916. The notice was published in the official paper (a weekly) in the issues of June 30th, July 7th, July 14th, and July 21st, but not in the issue of July 28th. The language of the statute requiring a pub-bonds for the full period prescribed by the lication to be made in a paper "for" a given number of days before an event is held to mean that the publication must run during the entire period, be continuous from a time that far in advance until the date named, and therefore, although the first publication is made sufliciently early, the omission of the notice in the last issue of the paper before the event is to take place results in a failure to meet the legal requirement. McCurdy v. Baker, 11 Kan. 111.

[3] 3. The fact that the election was set upon the day of the holding of the state primary did not alter its status as a special election, held at a time selected by the commissioners, as distinguished from a general election, held at a time designated by the statute. Note 90 Am. St. Rep. 69, 70.

statute is a jurisdictional prerequisite to their issue is too firmly established by prior decisions of this court to be regarded as an open question. It has been held that a failure to publish the notice of a sheriff's sale for the prescribed time is a mere irregularity which does not render the sale void. Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422. But in that situation no question of jurisdiction is involved. The confirmation of the sale is a judicial decree, not open to collateral attack except for fraud. Capital Bank v. Huntoon, 35 Kan. 577, 11 Pac. 369; 17 Cyc. 1267. A subsequent showing that the notice of sale had been omitted altogether would not avoid the effect of the confirmation. Freeman on Executions (3d Ed.) § 286, p. 1657; Herman on Executions, § 342, p. 515.

[4] 4. The failure to publish the notice of [7] 7. It is also suggested that, as the a special election for the full time required board was acting within the scope of its by law is a fatal defect rendering the elec-apparent authority, under color of an election void and preventing the lawful issuance tion presumably held according to law, for of bonds which depend upon it for their va- the regularity of which the commissioners lidity. State ex rel. v. Staley, 90 Kan. 624, 135 Pac. 602, and cases there cited; Metzger v. Davis, 98 Kan. 200, 157 Pac. 844.

themselves vouched, the plaintiff was justified in assuming that all the necessary steps had been duly taken, was not required to make a minute examination of the proceedings, and should be protected in his rights under the contract which he entered into

Formal defects in a published notice of an election which do not diminish its efficiency in giving information by which the action of voters may be affected are not necessarily in good faith in reliance on the action of fatal. Railroad Co. v. Scott County, 82 Kan. the board. This reasoning, if sound, would 795, 109 Pac. 684; City of Perry v. Davis, in effect allow the board by indirection to 97 Kan. 369, 154 Pac. 1127. But, as was pointed out in State ex rel. v. Staley, just cited, the omission of the notice from one issue of the paper in which the law required it to be inserted might possibly have deprived some voters of an opportunity to take part in the election, and thereby have influenced the result.

exercise a power denied it by the statuteto accomplish a result which the law expressly forbids. The limitation on the power of the board is for the protection of the taxpayers, and acts done by the commissioners in excess of their legal power cannot work an estoppel against the public so as to require the performance of an executory con

The writ is denied. All the Justices con- ty in the community where she resided was curring.

home and had winked at him. The defendF. J. Oyler, of Iola, and Sheppard & Shep-ant likewise called other witnesses who conpard, of Ft. Scott, for appellant. Hubert tradicted plaintiff on other wholly collaterLardner and Hudson & Hudson, all of Ft.al matters. In each instance counsel asked Scott, for appellee.

testimony showing the plaintiff's general rep-[his general reputation in the community as a utation as to truthfulness and veracity was not competent on rebuttal. It is insisted, however, that her reputation for truth and veracity was presumed to be good until attacked. This is, of course, fundamental. But it is also insisted that no attack upon her reputation had been made. If defendant is correct in the latter contention, he cannot claim that he suffered any prejudice by the admission of testimony tending to establish something presumed and conceded to be true. The defendant, however, did make an indirect attack upon the credibility and veracity of the witness. In Clem v. State, 33 Ind. 418, 427, it was said:

"The sole object in asking a witness whether he had made statements elsewhere not in accordance with his testimony, and upon his denial, calling other witnesses to show that he did make such statements, is to create a belief that he is not a credible witness. Impeachment of a witness by proof of his bad character is intended to accomplish exactly and only the same thing. The statements and the bad character are alike immaterial, except for the single purpose of affecting the credit of the witness, and it is not easy to say that the two methods are not about equally efficient in accomplishing the end. In either case the credibility of the witness is impaired. * If it is

*

moral, chaste, and law-abiding citizen was good, to which the court sustained an objection. It is urged by plaintiff that defendant failed to produce this testimony in support of the motion for a new trial. His own affidavit was filed stating that the three witnesses whose testimony was rejected would, if permitted, have testified that his general reputation in these respects was good. Under section 307 of the Civil Code (Gen. St. 1909, § 5901) he should have produced the evidence "by affidavit, deposition or oral testimony of the witnesses." However, no error was committed. In a civil action the character of a party is not admissible as evidence tending to disprove the act with which he is charged. In Curtis v. Hoadley, 29 Kan. 566, where defendant was charged with fraud, the judgment was reversed for error in admitting evidence of defendant's reputation for honesty and fair dealing. To the same effect is Simpson v. Westenberger, 28 Kan. 756, 42 Am. Rep. 195.

The judgment is affirmed. All the Justices concurring.

(99 Kan. 643)

just in the one case that a party should be per- CITY OF TOPEKA v. BROOKS et al. (two mitted to establish the credit of his witness by showing his good character, it is alike just in the other case."

The same conclusion was reached by the court in the case of National Bank of Bartlesville v. Blakeman, 19 Okl. 106, 91 Pac. 868, 12 L. R. A. (N. S.) 364. In the opinion in that case the Oklahoma court concedes that there is an irreconcilable conflict in the authorities, and adopts the rule favoring the admission of such testimony in rebuttal as one founded upon the better reason.

However, we do not wish to be understood as favoring the adoption of the hard and fast rule that, wherever proof has been admitted showing contradictory statements of a witness who is a party concerning matters foreign to the issues, the party whose veracity as a witness in the particular instance has been assailed has then the absolute right to offer rebuttal testimony to show his general reputation for truth and veracity. The better rule, we think, is to leave the question of the admissibility of such rebuttal testimony to the sound discretion of the trial court. In view of the course pursued by the defendant in the case at bar, there was certainly no abuse of the trial court's discretion. The main issue was whether the alleged assaults were committed. There was a flat contradiction in the testimony of the two parties as to what occurred. Aside from his denial of the assaults, the testimony offered by defendant consisted for the most part of attempts to show that the plaintiff had testified falsely as to wholly collateral matters inquired of in cross-examination.

cases). (Nos. 19860, 20632.) * (Supreme Court of Kansas. Feb. 10, 1917.)

(Syllabus by the Court.)

1. JUDGMENT 878(1), 891-CONSTRUCTION— PARTIAL SATISFACTION JOINT DEBTORS RELEASE.

A city obtained a judgment against one member of a partnership for damages sustained by the fraudulent acts of the partnership and failof a sewer. ure to complete a contract for the construction It released the judgment in a written instrument, expressly reserving the right to sue the other partner and the surety on the Held: contractors' bond.

(a) That the release of the judgment against one of those jointly and severally liable was in effect a covenant not to sue, and did not prevent the city from subsequently prosecuting an action against the other partner and the surety. Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, 19 L. R. A. (N. S.) 618.

(b) That a partial satisfaction of a judgment against one joint debtor and the release of the same will operate only as a payment pro tanto

of the indebtedness of the other debtors.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1653, 1655, 1702, 1703.]

2. JUDGMENT 878(1)—JOINT DEBTORS-RELEASE TENDER OF PAYMENT.

In a subsequent action, brought by the city against the other joint debtors, the defendants tendered to plaintiff and offered to pay into court the judgment against the other joint debtor which had been released. Held, that defendants could not better their position by offering to pay the former judgment.

Cent. Dig. §§ 1653, 1655.]
[Ed. Note.-For other cases, see Judgment,

3. DAMAGES 72 CREDIT FOR COUNTER-
CLAIM-FEES AND EXPENSES.

In the first action the city, in addition to the judgment which it released, obtained a judg[2] 2. The defendant offered to prove that ment applying upon the indebtedness of plaintiff

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

*Rehearing denied April 7, 1917.

a claim which the city owed him personally and surety company. In the present case a refupon which he had brought the action. Held, eree was appointed in October, 1914, who that as the defendants in the present action found against Brooks and the surety comwere given credit for the amount of this counterclaim, it was proper to render judgment against them for reasonable costs, attorneys' fees and expenses incurred by the city in establishing its right to the credit.

pany, and the district court rendered judg ment in accordance therewith.

The referee found, among other things, that Brooks and Gilmore entered into the partnership August 1, 1904, for the sole pur347(1)-CON-pose of performing the contract for the construction of the sewer in question, and as partners never engaged in any other enterprise; that James F. McCabe, as city engineer, without the knowledge or consent of the mayor and city council, included in the monthly estimates, and the city paid, at contract prices for different sizes of main and lateral sewers which the contractors did not furnish or construct; that he also raised the grade throughout the system from 1 to 11 feet above the grade provided in the plans, Shawnee and so relieved the contractors from excavating and backfilling to the amount of more than 6,000 cubic yards, making no deduction in the monthly or final estimate for such omitted work; and that Brooks & Gilmore had full knowledge of the fraud, and knowingly overcharged and received pay for all

"Such composition or compromise with any individual member of a firm shall not be so construed as to discharge the other copartners, nor shall it impair the right of the creditor to of such copartnership firm as have not been proceed at law or in equity against the members discharged."

In the opinion in the Edens Case, supra, mention was made of section 1642 of the General Statutes of 1909 as adopting the old rule of equity in such cases. That section reads:

"Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable."

--but the court also recognized an exception; that is, not to pursue the person further upto the rule in a case where "the wrongful on the judgment-as was the agreement in act is not done jointly by the persons from the Edens Case, which was given after suit whom compensation is sought, but is the deed was commenced and before the action had of one or the other and not of both." In resulted in a judgment. The release of the such a case the court said it was "unable to judgment as to Gilmore expressly shows that perceive on what principle a settlement with the consideration was not accepted in full and discharge of one affects the cause of ac- compensation for the debt or injury, and tion against the other." The defendants' should not be given an effect contrary to the contention is this: On the identical cause of intent with which it was executed. action stated in the petition in this case, the For another sufficient reason the defendcity recovered a judgment against one of ants' contention cannot be sustained. The the firm of partners contracting with the city statute expressly authorizes settlements by to construct the sewer. The legal liability one partner or joint debtor without affecting upon which it recovered that judgment was the liability of the other. Gen. Stat. 1909, §§ the same as in this case, the liability of one 5507-5511. It is provided in section 5509 partner for the wrongs committed by the that: firm; and, while the liability of each partner was joint and several, each was liable for the same amount. It is insisted, therefore, that every element is present upon which the rule in Westbrook v. Mize, supra, is predicated. The trial court approved the referee's conclusion of law that the release of the Gilmore judgment did not release or satisfy the city's claim against the other partner "except as to the amount actually collected by the city from Gilmore," which was the sum due him on his paving contract. This ruling was based upon the authority of Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, 19 L. R. A. 618, Meixell v. Kirkpatrick, 29 Kan. 679, and the statute authorizing compromises by partners or joint debtors. Gen. Stat. 1909, §§ 5507-5511. In the Edens Case the opinion contains a comprehensive review of the authorities by Mr. Justice Benson, who wrote the opinion. That case differs from this in two respects: There the release was executed before any judgment had been rendered, here after judgment against the joint wrongdoer; in that case no partnership liability was involved, here as to one of the defendants the liability was that of a partner. In the Edens Case the rule adopted in New York and believed to be in accordance with the weight of reason and of modern authority was followed. That rule is that the intent of the parties to the release controls, and where the creditor or injured party expressly reserves the right to pursue the other wrongdoer, the release of one cannot be set up as a defense by the other. The compromise or satisfaction is regarded as a cove nant not to sue, instead of a technical release. If, on the other hand, it is an abso- tried the city had not discovered the extent lute release, the rule declared in Westbrook of the contractors' fraud nor the extent of v. Mize, supra, controls, and the instrument its loss thereby. Neither of these defendants necessarily discharges the liability of any was a party to the Gilmore suit. They were other person either jointly or as surety there- not bound by anything determined therein, for. We perceive no adequate reason why the intention of the parties to the compromise should not be carried out or a different rule enforced on the mere ground that the compromise or release was entered into after judgment had been rendered. It was in effect just as much a covenant not to sue

We conclude, therefore, that a partial satisfaction of a judgment against one joint debtor and the release of the same operate only as a payment pro tanto of the indebtedness of the other joint debtors.

[2] 2. The defendants tendered in court the amount of the Gilmore judgment, and their second contention is that the partnership liability of Brooks and Gilmore was fully determined in the action against Gilmore, and therefore the city is estopped to claim a larger indebtedness than the sum then found to be due. If the city had accepted the tender, the defendants would have been discharged from further liability. Westbrook v. Mize, supra. But the city declined to accept it, and insisted upon establishing against these defendants a greater liability than the amount found due from Gilmore.

It seems that when the Gilmore Case was

except that any sums recovered and collected by the city in that action would to that amount reduce their liability to the city. Our statute declares that:

"All contracts which by the common law are joint only, shall be construed to be joint and several." Gen. Stat. 1909, § 1638.