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tention as well founded. Without referring such case the agent must be regarded as a to the testimony in detail, an examination of general agent, as to third parties who may it shows that there is evidence in the record deal with him in ignorance of any special or which supports the findings; and, although private instructions and limitations; and, there is some conflict, still the proof is not when his principal accepts the contract, he such as would warrant this court in interfer- will be bound by all conditions attached there. ing with the action of the trial court on this to, if within the apparent scope of the agent's point.

powers. Mr. Justice Brewer, in Babcock v. It is further insisted, however, that W. R. Deford, 14 Kan. 408, where a question simButler, who is characterized in the findings ilar to the one here considered was before the as the agent of the appellants, had no author- court, said: “This agreement was made beity to make a sale, or to make a contract re- tween the defendants and one Ross, who was specting the time of delivery of the goods, the agent and commercial traveler of plainwhich would bind his principals. Whatever tiff, and it is objected that there is no proof authority may have been conferred upon him that Ross had power to bind the plaintiff by by bis principals, the court found “that at all such an agreement. The defendants had no times hereinafter mentioned W. R. Butler personal acquaintance, no negotiations directwas the duly-authorized and acting agent and ly, with the plaintiff. The entire trade was salesman for M. E. Smith & Co. for the state made between this agent and them. They had of Utah," and the correctness of this finding no knowledge of the extent or limitations of does not appear to be challenged. Admitted- his authority. If the plaintiff accepted the ly, therefore, Butler was the agent and repre- contract of his agent, he must accept it as a sentative in this state of the co-partnership, whole, and cannot accept that which suits him, and there is nothing to show that the respond and reject the balance. The principal is ent, at any time before the sale, had any no- bound by the representations of his agent,tice of any limitations or restrictions upon bound by the contracts he makes within the the powers of the agent. Under these cir- apparent scope of his authority. Ross was cumstances, the agent must be regarded as the agent of plaintiff,-agent to make sales,having all the powers incident to his employ- and the plaintiff is bound by the conditions he ment, and the respondent had the right to attaches to such sales. At least, he cannot endeal within him upon that basis. If, there- force the sales and reject the conditions." In fore, the power to take an order or make a Keith v. Optical Co., 48 Ark. 138, 2 S. W. contract for the sale of goods is an incident 777, Mr. Justice Smith said: "A third person to the agent's employment,-which must be has a right to assume, without notice to the so, to give the agency any efficacy whatever, contrary, that the traveling salesman of a --we see no good reason why the power to wholesale house has an unqualified authority fix the time for the delivery of the goods to act for the firm he represents in all matshould not likewise be an incident to such ters which come within the scope of that ememployment, and come within the scope of ployment.” Dunl. Paley, Ag. 199-201; Me. his authority. Certainly the time for the de- chem, Ag. $ 362; Burner Co. v. Odlin, 51 N. livery of goods may, and doubtless often is, H. 56; Talmage v. Bierhouse, 103 Ind. 270, 2 of the utmost importance to the purchaser, to N. E. 716; Murray v. Brooks, 41 Iowa, 45; prevent loss of custom, and consequent fail- Marbray v. Shoe Co., 73 Mo. App. 1; Backure in business, through delay on the part of man v. Charlestown, 42 N. H. 125; Greer v. the seller. It is true that any order for goods, Bank (Tex. Civ. App.) 47 S. W. 1045. so taken by a salesman, may be, and probably From the foregoing considerations, we are is, only a conditional contract, not binding up- of the opinion that when the appellants reon the principal until acceptance. While this ceived the order, and acted upon it by shipmay be conceded, still the agent may make ping and delivering a portion of the goods, any contract within the apparent scope of their action amounted to an acceptance of the his authority, and when the principal accepts contract, with the conditions attached by it he is bound by its terms. Therefore, as the their agent. Thereafter, upon their failure to appellants received the contract from their comply with all the conditions, the respondent agent for the sale of the goods, without no- became entitled to such damages as he sustice to the purchaser of a refusal to comply tained because of such failure. Nor, under with some of its conditions, and acted upon the circumstances shown by the record in this it by shipping a portion of the goods, they case, do we think the claim for damages was must be held to have accepted the contract as waived by the acceptance from time to time a whole, including the conditions as to the of such of the goods as the appellants delivtime of delivery and as to the delivery of all ered. The respondent could not, nor was he the goods, which were attached to the sale. bound to, anticipate that the appellants would So far as the respondent knew, Butler had not ship and deliver all the goods which he apparently general authority to contract for purchased, and consequently was not bound a sale for the goods. It is true that the testi- to refuse acceptance of such as were delivmony of the appellants tends to show that ered. The acceptance of and payment for a there were private limitations imposed upon portion of the goods was clearly advantahis powers, but these were never communi- geous to the appellants, and when the final cated to the respondent prior to the sale. In breach was committed by them he had a right

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to sue for such damages as he actually sus- ler was merely a resident commercial sales. tained because of the failure of complete per- man or drummer for the plaintiffs, with auformance by the appellants.

thority only to take orders for goods, and subThe other points presented have received mit them to his firm for rejection or acceptdue consideration, but we do not regard them ance, and that he had no authority to make of sufficient importance to require separate any contract outside of such duty, or to exdiscussion. We find no reversible error in tend or fix the time when the goods ordered the record. Judgment affirmed, with costs. would be delivered to the purchaser. When

a third person is dealing with a general agent BASKIN, J., concurs.

of a wholesale dealer, with general powers to

sell and deliver goods, such person has the MINER, J. (dissenting). I cannot concur right to assume, without notice to the conwith my brethren in several of the proposi- trary, that such agent has authority to act tions of law as presented by the opinion of for the firm he represents in all matters comthe court. In its first finding of fact the ing within the scope of his employment; but court found that Butler at the time of the this rule, which is sustained by most of the sale of the goods to the defendant was a duly authorities cited in the opinion of the court, authorized and acting agent and salesman for does not apply to the facts in this case. the plaintiffs. In the second finding of fact this case there was neither a general nor spethe court found that on the 5th day of Au- cial agency to sell goods, or make any con. gust, 1897, plaintiffs, acting through their tract relating thereto, or as to the delivery of agent, Butler, sold to the defendant goods the goods sold. The drummer's authority was and merchandise of the value of $665. The limited to taking orders for goods, and subthird finding of fact shows that plaintiffs' mitting the same to the house for its affirmagent, Butler, agreed with the defendant at ance. If the party ordering was responsible. the time of the sale that the goods would and the prices and terms imposed were satisbe shipped from Omaha, Neb., so as to reach factory, the order would ordinarily be acceptSalt Lake City for delivery 12 days from the ed. If not, it would be rejected. If wholedate of the sale, and that that was an express sale houses are to be held responsible for all condition of the contract. In the assignments the contracts their drummers or commercial of error it is claimed that the evidence is in- travelers with limited authority may make. sufficient to justify the second finding of fact, and by what they say, and be required to fill for that the testimony is that plaintiffs' agent orders to such irresponsible dealers as a drumon the 5th day of August, 1897, took orders mer might agree to sell goods to or make confrom defendant for goods, and nothing more, tracts with, but little reliance could be placed and it was impossible that a sale of goods to upon their continued tinancial responsibility. the defendant should have been consum- The judgment of business men in such departmated on that day, because the evidence ments would revolt at such a proposition; shows that all the orders of Butler, the travel- hence the almost universal rule that drummers ing salesman of plaintiffs, were subject to the are given authority only to take orders, and approval or rejection of plaintiffs, and the are prohibited from making any contracts to evidence shows that such orders did not reach bind the firm. If the drummer or commercial plaintiff's until August 10th; and that the traveler has authority to take orders for goods, evidence was insufficient to justify the third only, and to send the orders to the house for finding of fact, because the uncontradicted its approval, then the agency to sell the goods evidence shows that Butler had no right or or bind the firm is wanting; and whatever the authority to make any such agreement speci- agent says or does outside of the scope of his fied in said finding, and that he did not in fact authority to take orders is not binding upon make such agreement.

the principal, and cannot ordinarily be used The case turns upon the question of the in evidence against such principal. agency of Butler, and his authority to agree The following propositions are sustained by when the goods were to be delivered. The authority: The acts and declarations of one first assignment of error, doubtless through who assumes to be acting as the agent of anmistake, uses the words “plaintiffs' agent"'; other are not evidence against the principal but the meaning of the assignments of error until the facts of such agency are established is made clear throughout, and from them all by others. So the authority of the agent canit is plain that appellant did rely on the fact not be proved by his own statements. One that Butler was merely a commercial traveler dealing with another claiming to be an agent or drummer, with authority to take orders for must do so at his own peril. The scope of a goods subject to the approval of plaintiffs, but commercial traveler's or drummer's authority not to make sales, or fix the time when goods is well defined, and, as a general rule, extends were to be delivered, and that the uncontra- to soliciting orders for goods. Butler v. Dordicted evidence justifies these views. The at- man, 68 Mo. 298; Hatch v. Squires, 11 Mich. torney for the respondent makes no question, 185; Kornemann v. Monaghan, 24 Mich. 36; either in his brief or argument, that the as- Hirshfield v. Waldron, 54 Mich. 649, 20 N. W. signments of error are not broad enough to 628; McDonough v. Heyman, 38 Mich. 334; cover all the findings of fact. The testimony Reynolds v. Insurance Co., 36 Mich. 131; 6 clearly shows, and is uncontradicted, that But- Am. & Eng. Enc. Law (20 Ed.) 224, 225; Law

Sharp, for appellant. H. T. Cresswell, for respondent.

PER CURIAM. The question for decision in this case is the same as in City and County of San Francisco v. Sharp (S. F. 1,208) 58 Pac. 173, and, for the reasons stated in the opinion this day filed in that case, the judgment here appealed from is aflirmed.

V.

CITY AND COUNTY OF SAN FRANCISCO

SHARP et al. (S. F. 1,731.) (Supreme Court of California. Aug. 7, 1899.) Depart. ment 2. Appeal from superior court, city and county of San Francisco. Action to quiet title by Eliza M, Sharp and others against the city and county of San Francisco. From a judgment for defendant, plaintiff appeals. Aflirmed. E, G. Knapp, for appellant. Jas. L. Gallagher and H. T. Cresswell, for respondent.

PER CURIAM. The same question is involved in this case as in City and County of San Francisco v. Sharp (S. F. 1.208) 58 Pac. 173. For the reasons stated in the decision of that case, this day filed, the judgment here appealed from is affirmed.

v. Stokes, 32 N. J. Law, 249; McKindly v. Dunham, 55 W'is. 515, 13 N. W. 485; Chambers v. Short, 79 Mo. 204; Greenhood v. Keator, 9 Ill. App. 183; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302. The case of Butler v. Dorman, 68 Mo. 298, was where a traveling agent sold goods by sample, but was not intrusted with the goods sold; and, some time after taking the order and transmitting it, the igent requested that the buyer pay him, and said he would credit the same on the bill of the goods sold. The buyer paid the agent. Suit was brought by the firm against the buyer, and testimony was offered showing that the agent's authority ended with the taking of the order, and that he had no right to receive the money. The court held that the purchaser paid the agent at his peril, and it devolved upon him to show that the commercial traveler had authority to collect the money. Clark v. Smith, 88 Ill, 298; Greenhood v. Keator, 9 Ill. App. 183.

It does not appear that the plaintiffs knew of the pretended contract made with Butler, to the effect that the goods were to be delivered in Salt Lake City within 10 or 12 days, at the time the order was accepted and nearly all of the goods shipped. No such agreement was contained in the written order forwarded to plaintiffs. The order was written and dated August 5th, and most of the goods were shipped August 11th; and the defendant was then notified that the balance of the goods were out of stock, but would be shipped very soon. Defendant wrote to plaintiffs, complaining about not receiving the goods, and claiming that he was injured thereby, and asked that they be forwarded; but nothing is said in the letter about the contract to ship the goods in 10 or 12 days. So, by accepting the order, and shipping the goods in part, without any notice of any agreement with the drummer that they should be delivered within 10 or 12 days, the plaintiffs did not ratify or adopt the acts, statements, or agreements of Butler, if made, to deliver the goods in 10 or 12 days. . Butler had no right to make such a contract, and it was not communicated to the plaintiffs. Machine Co. v. Ashley, 60 Ala. 496.

It is my opinion that the first, second, and third findings of fact are entirely unsupported by the evidence, and that the uncontradicted testimony in the case is contrary to, and insufficient to justify, and does not support, such findings.

CURTIN v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO et al. (S. F. 2,040.) (Supreme Court of California. Sept. 22, 1899.) In bank. Petition by D. A. Curtin against the superior court of the city and county of San Francisco and J. C. B. Hebbard, the judge of said court, for a writ of review to declare a judgment void. Granted. Cannon & Freeman, for petitioner.

PER CURIAM. The said D. A. Curtin, on the 4th day of August, 1899, having made application to this court for a writ of review to be issued to said respondent, desiring to have reviewed and declared void a certain judgment rendered by said court on the 29th day of July, 1899, which said judgment is particularly described in said petition, and was in an action pending in court on appeal from the justice's court of San Francisco, wherein said Curtin was plaintiff and Marie Cassou and Joseph Cassou were defendants; and whereas, in said petition for the writ of review, said Curtin set out at large what he claimed to be the record which he desired to have certified to this court for review; and whereas, the respondent now :ppearing in this court assents to said statement is true; and whereas, it appears therefrom that said judgment is void because said court had no jurisdiction or power to render said judgment, and respondent assenting thereto, it is therefore considered and decreed that said judgment be, and the same is, set aside, vacated, and declared void, and the said court is directed to proceed to hear and determine said appeal as though no such judgment had been entered.

HARVEY v. QUEVAS et al. (L. A. 489.) (Supreme Court of California. Oct. 4, 1899.) În bank. Action by J. Downey Harvey against Jose Quevas and others. From a judgment for plaintiff, defendants appeal. Affirmed.

PER CURIAM. This case and Harvey V. Barker (L. A. 490; just decided) 58 Pac. 692, involve similar propositions, and were argued and submitted together. Upon the authority of that case the judgment herein is affirmed.

MEMORANDUM DECISIONS.

CITY AND COUNTY OF SAN FRANCISCO. V. DUNHAM. (S. F. 1,295.) (Supreme Court of California. Aug. 7, 1899.) Department 2. Appeal from superior court, city and county of San Francisco. Action to quiet title by John H. Dunham against the city and county of San Francisco. From a judgment for defendant, plaintiff appeals. Affirmed. W. B.

SHEEHAN v. SULLIVAN et al. (S. F. 918.) (Supreme Court of California. Sept. 23, 1899.) In bank. Action by Ellen Sheehan against Margaret Sullivan and others. From a judgment for plaintiff, and from an order denying a new trial, defendant Margaret Sullivan appeals separately. Reversed.

PER CURIAM. This is the appeal of defendant Margaret Sullivan on a transcript identical with the transcript in S. F. 917. She appealed separately from the other defendants. Precisely the same questions arise in both appeals. Upon the authority of the decision in S. F. 917 (this day filed) 58 Pac. 513, the judgment and order are reversed.

being unauthorized, let orders be entered grant ing the writ of habeas corpus as prayed for, and discharging the petitioner from further custody.

SOUTHERN PAC. R. CO. v. BELL. (S. F. 1,720.) (Supreme Court of California. Aug. 2, 1899.) In bank. Appeal from superior court, Fresno county. Action by the Southern Pacific Railroad Company against Isaac T. Bell. Judg. ment for defendant, and plaintiff appeals. Affirmed. Wm. Singer, Jr., and H. V. Reardon, for appellant. W. B. Wallace, for respondent.

PER CURIAM. On the authority of Railroad Co. v. Wood (Cal.) 57 Pac. 388, the judgment in this case is affirmed.

CITY OF IOLA V. SUGG. (Supreme Court of Kansas. Nov. 11, 1899.) Appeal from court of appeals, Southern department, Eastern division.

J. W. Sugg was convicted of keeping a dog in the city of Iola without a license, and appeals. Appeal dismissed. Oscar Foust & Son, for appellant. J. F. Thompson and Travis Morse, for appellee.

PER CURIAM. Appellant was convicted in the police court of the city of Iola on the charge of unlawfully keeping and owning a certain dog, without having the name and description of the animal registered with the city clerk in the dog register, and without having paid the annual tax thereon, contrary to the provisions of an orie nance of said city. He appealed to the district court, and was again convicted, which last judg. ment was aflirmed by the court of appeals. 56 Pac. 541. We fully concur in the opinion of that court in the case. There is nothing in the record requiring this court to assume jurisdiction under section 31, c. 84 of the General Statutes of 1897. Erb v. Morasch, 60 kan. 251, 56 Pac. 133. The appeal and proceedings in error will be dismissed.

WILLIAMS et al. v. CASEBEER. (L. A. 514.). (Supreme Court of California. Sept. 14, 1899.) Department 2. Appeal from superior court, Santa Barbara county. Action by Kate Sonoma Williams and her husband, Isaac B. Williams, against J. W. Casebeer, for malicious prosecution. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. B. F. Thomas and J. W. Taggart, for appellant. S. E. Crew and Wm. J. Hunsaker, for respondents.

PER CURIAM. For the reasons given in the opinion filed this day in L. A. 611 (same title; 58 Pac. 380), the judgment is affirmed.

ROBERTSON v. PEOPLE. (Supreme Court of Colorado. July 17, 1899.) Error to district court, Pueblo county. Tom Robertson was convicted of unlawfully keeping open & saloon on Sunday, and brings error. Affirmed. Arrington & McAliney and C. E. & F. Herrington, for plaintiff in error. David M. Campbell, Atty. Gen., _Calvin E. Reed, Asst. Atty. Gen., and Dan B. Carey, Asst. Atty. Gen., for the People.

PER CURIAM. This case, in its facts and the law applicable thereto, in no essential respect differs from Cardillo v. People (decided at this term) 58 Pac. 678. The decision there governs here, and the judgment of the district court is accordingly affirmed. Affirmed.

ANTHONY INV. CO. v. LAW et al. (Court of Appeals of Kansas, Southern Department, C. D. Nov. 20, 1899.) Error from district court. Harper cou ty; G. W. McKay, Judge. Action between the Anthony Investment Company and Leroy Law and Dora Law. From the judgment the company brings error. Affirmed. A. C Richardson and S. W. Shattuck, Jr., for plaintiff in error, W. S. Cade, for defendants in error.

PER CURIAM. This case was tried in the court below upon the pleadings and an agreed statement of facts. The errors assigned are: “(1) Said court erred in finding against the plaintiff in error and in favor of the defendants in error. (2) Said court erred in rendering judgment against the plaintiff in error and in favor of the defendants in error." After considera. tion of the record and the errors assigned, the judgment of the district court will be affirmed.

In re SWEENEY. (Supreme Court of Colorado. July 17, 1899.). Original application by William E. Sweeney for writ of habeas corpus. Petitioner discharged. Walcott & Vaile, John M. Waldron, C. W. Waterman, C. H. Toll, and W. W. Field, for petitioner. Booth M. Malone, Dist. Atty., Daniel Prescott, Asst. Dist. Atty., David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., Thomas M. Patterson, and John H. Murphy, for respondent.

PER CURIAM. William E. Sweeney has filed his petition herein for a writ of habeas corpus, in which he asks for his discharge from illegal custody. He was the agent of the owner of a smelter, and in such capacity employed Thomas A. Morgan to work therein for more than eight hours a day. At the preliminary examination before a justice of the peace upon the charge of making a contract for such employment, he was bound over to the next term of the district court of Arapahoe county, and in default of giving the required bail was committed to jail. Our decision in Re Morgan 58 Pac. 1071, a like proceeding by the employé, holding void the so-called eight-hour act upon which both this and that prosecution were based, is decisive of this proceeding. In the opinion in that case will be found a full discussion of the questions involved, and there is no necessity for a repetition here. Petitioner's restraint of his liberty

ATTICA STATE BANK v. BENSON et al. (Court of Appeals of Kansas, Southern Department, C. D. Nov. 20, 1899.) Error from district court, Harper county; G. W. McKay, Judge. Action between the Attica State Bank and L. E. Benson and Henry Shannon. From the judgment the bank brings error. Dismissed. George B. Crooker and T. A. Noftzger, for plaintiff in error. Sankey & Campbell and W. S. Cade, for defendants in error.

PER CURIAM. The motion for a new tria) in this case was overruled, and judgment rendered, on April 15, 1893. A summons in error was issued out of the supreme court on April 21, 1894, and served upon Henry Shannon April 27. 1894. An undated waiver of the issuance and service of summons in error upon Benson by his attorneys was filed with the clerk of the supreme court on May 29, 1894. The filing of a petition is not, of itself, the commencement of an action. A summons must issue, or a waiver thereof be executed. Not having been done within one year from the ruling upon the motion for a new trial, the motion to dismiss will be sustained.

BITTMAN-TODD GROCER CO. BISHOP et al. (Court of Appeals of Kansas, Southern Department, C. D. Sept. 16, 1899.) Error from district court Greenwood county. Action by the Bittman-Todd Grocer Company against Samuel Bishop and others. Judgment for plaintiff. From the denial of an order, it brings error. Affirmed. T. L. Davis, for plaintiff in error. Holmes & Haymaker, for defendants in error.

PER CURIAM. This is an appeal from an order of the district court of Greenwood county, wherein the motion of plaintiff in error, asking that certain proceeds of certain attached property be applied on its judgment against J. W. Bishop. was overruled. No questions of law or authorities are cited by plaintiff in error. From our examination of the record as presented to this court, the judgment of the district court should be affirmed.

gies, one phaeton, and one road wagon. The case was tried to a jury. Verdict and judgment for defendants. The plaintiff below brings the case here for review. It is contended that the trial court erred in excluding competent and in admitting incompetent testimony, and that the court erred in the instructions to the jury and in overruling the motion of plaintiff for a new trial. The errors assig ned have been considered, but they are not sufficient to justify a reversal of the case. The judgment of the district court is affirmed.

BRIGHAM et al. v. JANSEN et al. (Court of Appeals of Kansas, Southern Department, C. D. Oct. 12, 1899.) Error from district court, Lyon county; W. A. Randolph, Judge. Action be

ween J. W. Brigham & Co. and others and Jansen & Freyschlag and others. From the judgment Brigham & Co. bring error. Reversed. J. G. Hutchison, for plaintiffs in error. Cunningham & McCarty, for defendants in error.

PER CURIAM. The supreme court, in_the case of Brigham v. Jones, 48 Kan. 162, 30 Pac. 113, have construed the instrument in controversy in this case to be a general assignment, instead of a mortgage. The trial court in the case at bar held it to be a mortgage. Should the supreme court desire to change their conclusion, they now have the opportunity. We do not care to do it for them. The judgment of the district court is reversed, and the case remanded for a new trial.

CROTTS et al. v. CARPENTER et al. (Court of Appeals of Kansas, Southern Department, C. D. Sept. 16, 1899.) Error from district court, Reno county; F. L. Martin, Judge. Action by T. J. Crotts and others against F. H. Carpenter and others. From the judgment Crotts and others bring error. Affirmed. D. H. Martin, for plaintiffs in error. M. A. Lowe and W. F. Evans, for defendants in error.

PER CURIAM. This is an appeal from a survey made by the county surveyor of Reno county, Kan. The case was tried by the court, and findings of fact and conclusions of law made. But one exception was taken during the trial, which is as follows: "To all of which findings of fact and conclusions of law the plaintiff at the time excepted." The evidence is not before us, but from the findings of fact we find no error in the conclusions of law. The judgment of the district court is affirmed.

CAREY v. KANSAS & T. COAL CO._(Court of Appeals of Kansas. Southern Department, C. D. Nov. 20, 1899.) Error from district court, Reno county; F. L. Martin, Judge. Action by the Kansas & Texas Coal Company against Emmerson Carey. Judgment for plaintiff. Defendant brings error. Affirmed. C. M. Williams, for plaintiff in error. C. V. Ferguson, for defendant in error.

PER CURIAM. The only question presented in this case is, did the trial court err in sustaining plaintiff's demurrer to the evidence of defendant? We are satisfied, from an examination of the record, that it did not. The judgment of the district court is affirmed.

FIRST NAT. BANK OF ARKANSAS CITY V. AMES. (Court of Appeals of Kansas, Southern Department, C. D. Nov. 20, 1899.) Error from district court, Cowley county; J. A. Burnette, Judge. Action between the First National Bank of Arkansas City, Kan., and Henrietta Ames. From the judgment the bank brings error. Affirmed. Pollock_& Lafferty, for plaintiff in error. Chas. L. Brown, for defendant in error.

PER CURIAM. From an examination of the record in this case, we are satisfied that the issue was fairly submitted to the jury, and that the errors assigned, the entire record considered, are not sufficient to require a reversal of the

The judgment of the district court is affirmed.

case.

CITY OF TOPEKA v. MYERS. (Court of Appeals of Kansas, Northern Department, E. D. July 18, 1899.) Error from district court, Shawnee county; Z. T. Hazen, Judge. Action between the city of Topeka and Elizabeth Myers. From the judgment the city brings error. Motion to dismiss denied. W. A. S. Bird, for plaintiff in error. D. C. Tillotson, for defendant in error.

PER CURIAM. The motion to dismiss must be denied. It is founded upon an apparent clerical error, which we have authorized to be corrected. The case was filed in this court within the year. The motion is therefore without foundation, and is denied.

HILL V. MIDDLETON, Sheriff. (Court of Appeals of Kansas, Southern Department, C. D. Nov. 20, 1899.) Error from district court, Bụtler county; Ć. W. Shinn, Judge. Action by Theodosia Hill against J. W. Middleton, sheriff of Butler county. Judgment for defendant, and plaintiff brings error. Affirmed. F. L. Jones and Aikman & Aikman, for plaintiff in error. A. L. Redden and N. A. Yeager, for defendant in error.

PER CURIAM. This was an action brought by plaintiff in error in the district court of Butler county against J. W. Middleton, sheriff, for the recovery of the value of certain personal property, claimed by plaintiff, which was taken by the sheriff under executions against E. H. Hill and W. J. Hill. The case was tried to a jury, and verdict returned for the defendant. Judgment was rendered in favor of the defendant for costs. Plaintiff below brings the case here for review. The question presented to and determined by the jury involved the validity of the transfer of certain personal property made by W. J. Hill to his mother, the plaintiff in error, at the time or just before the property was levied upon by defendant in error. The errors presented in plaintiff's brief are that the trial court erred in excluding competent evidence offered in behalf of the plaintiff and in admitting improper and incompetent evidence offered by defendant and in giving and in refusing to give

V.

COLUMBUS BUGGY CO. BOOTH. (Court of Appeals of Kansas, Southern Department, E. D. Nov. 15, 1899.) Error from district court, Montgomery county; A. H. Skidmore, Judge. Action by the Columbus Buggy Company against Charles W. Booth. From a judgment for defendant, plaintiff brings error. Affirmed. J. B. Ziegler, for plaintiff in error. Albert L. Wilson, for defendant in error.

PER CURLAM. This is an action in replevin, brought by the Columbus Buggy Company against Charles W. Booth to recover three bug

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