ity of the principal. The guarantor in such a case is not an officious intermeddler having no remedy." 12 R. C. L. 1099. The meaning clearly is, in view of the decision cited in support of the statement, that ignorance of the guaranty on the part of the debtor does not prevent his becoming liable to reimburse the guarantor. The statement that his liability is not affected thereby, if regarded as meaning more than that his liability is not prevented, goes beyond what is decided in the case referred to. There Jones had executed a bond (note) to Smith, with Black as surety. Smith sold it to Boyd; Carter guaranteeing it without the knowledge of the makers. Carter was required to pay it, and sued Jones and Black. In the opinion it was said: debt in order to protect his own interests.'" Peake v. Estate of Dorwin, 25 Vt. 28. These cases are regarded as establishing the doctrine that a guarantor who becomes such without the knowledge of the debtor, and is required to make payment, has a valid claim for reimbursement. But they go no further than to hold that such a voluntary guarantor is not deprived of recourse against the principal debtor upon the ground that he is a mere intermeddler. They proceed upon the theory that it is competent for the guarantor to become such by contract with the creditor alone; that when, by virtue of the liability so assumed, he is required to make payment, he becomes virtually the purchaser of the claim against the debtor, or entitled to the rights of a purchas"The plaintiff Carter is clearly entitled to a er. In that view it is proper that he should decree against the defendants, unless their ob- have all the remedies of the original credjections that Carter was an officious inter-itor, meddler, and for that reason not entitled to relief, and to the bill on account of Boyd's being a party plaintiff, can avail them. * * But it is said that Carter was an officious intermeddler, and on that account can have no claim to the interference of a court of equity. It is true that he paid the amount of the bond to Boyd without any request, express or implied, from the defendants Jones and Black, or either of them. He could not then have recovered at law, as was decided in a suit at law brought by him against them (Carter v. Black, 20 N. Č. 561). But in this court the plaintiff Carter stands in a very different situation. He is not suing here for money paid for the use of the defendants at their request. He became bound on the bond at the instance of the plaintiff Boyd and the defendant Smith, and, having paid the amount of it to Boyd, he claims as an equitable purchaser of it, and seeks here to recover on it in the same manner as Boyd might do. * From what has been before said in considering the objection that Carter was an officious intermeddler it is to be deduced that Boyd must be regarded here as bound to assign the bond to Carter." Carter v. Jones, 40 N. C. 196, 198, 199, 200, 49 Am. Dec. 425. In a similar case B. & H. Boynton, as principals, and Jedediah Boynton, as surety, made a note to John A. Place. At the request of Place, without the knowledge of the Boyntons, Dorwin also signed it. The court said: "The act of Dorwin in signing that note at the request of Place did not create the relation of principal and surety between him and the Boyntons; but, as the money was raised for their benefit, very slight acts, recognizing that relation on their part, would place him in the light of surety for them. Without some evidence, however, of that character, the relation does not exist, and Dorwin, on payment of the note, could not have sustained an action against them for money paid; for no one can make another his debtor, by paying his debt, without a request, either express or implied. but no reason is apparent why he should have any added right, or why he should be privileged to keep alive in this manner a claim which, so far as the debtor could know, had long since ceased to have any validity. In Teberg v. Swenson, 32 Kan. 224, 4 Pac. 83, this aspect of the matter is emphasized by the fact that the guarantor was given a formal assignment of the debt. The opinion concludes with the words: did not volunteer to discharge the obligation of "In the present case, however, the plaintiffs the defendant. They were bound by their written guaranty to pay the debt of the defendant; and when they paid the same they took a written assignment of such debt from the creditor. This gave them the same right to recover the debt from the defendant which the creditor previously had." 32 Kan. 229, 4 Pac. 86. In the present case Leslie was not a surety for Compton in any sense that implied a contractual relation between them. He had made an agreement with the owner of the note to see that it was paid. On being compelled to make payment in fulfillment of that obligation he had a remedy against Compton, but it was by virtue of his being subrogated to the rights of the payee, or of his having become the virtual purchaser of the note. If Compton had requested the execution of the guaranty, or if he had known of it and recognized it in any way-if Leslie had been his surety in the ordinary sense-he would have been chargeable with notice that, although no action had been brought against him within five years of the maturity of the note, proceedings might have been taken against Leslie, resulting in a payment which he might be called upon later to make good. But, as Leslie merely acquired the rights of a holder of the note, the statute of limitations protected Compton against him to the same extent as against any other purchaser. If it be objected that as a result of this view If Dorwin, before the contract for delay was made, had been called upon by the plaintiff [the purchaser of the note], and had paid the note, he would have been entitled, by subrogation, to all the rights and remedies of the creditor the statute of limitations had prevented a against the other parties thereon, and would stand as a purchaser of the note. This right of subrogation exists in equity, not only where the strict relation of principal and surety is formed, 'but where one is compelled to pay the recovery by Leslie against Compton before his right of action against him accrued, a sufficient answer is that no cause of action ever accrued in favor of Leslie; he is in the attitude of one who has bought an outlawed claim. Compton was not at fault in the matter. Action by George K. Phillips against J. H. Springer, as county treasurer of Franklin County and others. Demurrer to petition overruled, and defendants appeal. Affirmed. S. M. Brewster, Atty. Gen., R. R. Redmond, of Ottawa, and S. N. Hawkes and Jno. L. Hunt, both of Topeka, for appellants. W. B. Pleasant, of Ottawa, for appellee. [2, 3] A surety may acquire a claim for reimbursement by paying a debt which is alive as to him, but outlawed as to the principal. Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390. A guarantor who has become such at the request of the principal has the benefit of an implied promise of indemnity, and a new and MASON, J. In 1915, George K. Phillips independent cause of action arises thereon and his wife executed deeds to their several whenever he is compelled to make a payment, children by which they conveyed to each a irrespective of the time of maturity of the tract of land, upon the condition that the original debt. But a guarantor who becomes grantee should annually pay to them, or to such by an agreement with the creditor, to the survivor of them, so long as either should which the debtor is not a party, and is com- live, the sum of $1 per acre. In 1916, the pelled to make payment, has no claim based county commissioners undertook to tax the upon an implied promise of reimbursement; right of George K. Phillips to receive such his rights are equivalent to those of a pur- annual payment, and entered it upon the chaser of the debt, and his remedy is lost rolls as personal property belonging to him. whenever an action on that is barred. No He brought an action against the commissioninequity results from this view in the pres-ers and treasurer seeking to enjoin the colent case. Compton was justified in believing lection of the tax. A demurrer to his petithat the note had been fully paid from the tion was overruled. The defendants elected proceeds of mortgaged cattle, or that all to stand upon their demurrer, and now apclaims upon it had been abandoned. Leslie peal. could probably have protected himself by giving Compton notice of his relation to the matter, and causing him to be made a party to the action on the note. At all events the running of the statute in favor of Compton was not prevented by dealings between Leslie and the holder of the note of which he had no knowledge, actual or constructive. While not material to the decision, it may be pertinent to add that the defendant claimed a meritorious defense apart from that here considered. The plaintiff contends that the execution and acceptance of the deeds referred to created no right or property in him which is subject to taxation, but that, whether or not he is correct in that contention, the defendants are precluded from disputing it because of allegations in the petition which he asserts constitute a good plea of res judicata as to that matter. Such allegations are to the effect that in 1915, under similar circumstances, a warrant based upon the same character of proceedings was about to be is The judgment is affirmed. All the Justices sued against the plaintiff, and he had then concurring. sought and obtained a permanent injunction against the defendants, forbidding the collection of the tax. The defendants assert that PHILLIPS v. SPRINGER, County Treasurer, the matters alleged do not amount to a prior (103 Kan. 108) et al. (No. 21528.) (Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.) RES ADJUDICATA adjudication of the issue here presented— that the facts pleaded merely show that for some undisclosed reason the tax warrant that was to have been issued in 1915 was not JUDGMENT 949(2) valid. The rule is invoked that where, as in PLEADING. this instance, the second cause of action is A deed contained a condition that the gran- upon a different demand, a former judgment tor should, during his life, receive an annual operates as an estoppel only as to matters payment from the grantee. In an action to enjoin the taxation, as personal property, of the that were actually litigated. Stroup v. Pepgrantor's right thereunder, it is held that a per, 69 Kan. 241, 76 Pac. 825. The question prior adjudication against its taxability is suffi- presented for determination is whether the ciently pleaded by averments that in a former allegations of the petition, when given the action between the same parties, brought to restrain the collection of the tax assessed construction favorable to the pleader to against the same right the year before, the same which they are entitled upon an attack by deissue had been raised, and that the court adjudg-murrer, are sufficient to show expressly or ed "that the real estate was conveyed, upon conditions subsequent, and that by fair implication that in the earlier case the assessment of plaintiff on account of said the court decided that the deeds created no pretended property was illegal, *. * and right in the plaintiff which was subject to that said decision then had upon the taxation as personal property. The part of merits of this matter in said case rendered the matter of assessing said property res adjudicata." the petition referring to this phase of the controversy reads as follows: * * Appeal from District Court, Franklin County. "That in March, 1915, the deputy assessor of said Franklin township and the county clerk For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of Franklin county assessed this plaintiff upon thereon"; that, "the issues being duly joinsaid property, that is, the alleged property, ed in said case, the same was tried to this which they claimed plaintiff owned by virtue of said deeds, and extended the same upon the court"; that it was adjudged "that the real tax rolls of Franklin county, Kan., and the estate described in said deeds was conveyed County treasurer was about to and intended to by this plaintiff to his several children upon issue a warrant to the sheriff of Franklin conditions subsequent, and that the assesscounty to collect said tax levied upon said property, the amount being $93.20, and to pre- ment of plaintiff on account of said pretendvent the issuance of said warrant this plaintiff, ed property was illegal"; and that "said deon February 7, 1916, duly filed in this court cision then had upon the merits of this mathis action against all defendants in this case to enjoin the issuance and service of such tax ter in said case rendered the matter of aswarrant. That the defendants in this case an- sessing said property res adjudicata." The swered plaintiff's petition in that case by set- final allegation as to the effect of the judgting up that it was a taxable property owned ment partakes of the nature of a legal conby plaintiff by virtue of the provisions in said deeds, and claimed the right to assess the prop-clusion, but it serves to interpret the other erty and tax the plaintiff thereon; and, the issues being duly joined in said case, the same was tried to this court, and, the court having heard the evidence fully of both parties and the argument, it was duly considered and adjudged in said cause by this court that the real estate described in said deeds was conveyed by this plaintiff to his said several children upon conditions subsequent, and that the assessment of plaintiff on account of said pretended property was illegal, and that the defendants should be enjoined from collecting taxes thereon, whereupon it was adjudged and decreed by the court in that cause that the defendants herein, who were defendants in that cause, be and they were perpetually enjoined from issuing, or causing to be issued, any warrant for the collection of said taxes, and this plaintiff now says that said decision then had upon the merits of this matter in said case GREAT WESTERN MFG. CO. v. PORTER rendered the matter of assessing said property res adjudicata, and the defendants are estopped thereby and prohibited thereby from assessing said pretended property and from issuing any warrants against this plaintiff to collect said illegal taxes thereon." It is quite apparent that the pleader had in mind and intended to give expression to the idea that the question of the taxability of the plaintiff's rights under the contracts evidenced by the deeds was passed upon in the former action. That allegation is not made, however, as distinctly and explicitly as might be desired. Doubtless a motion for a more definite statement of the plaintiff's claims in this regard would have elicited a fuller exposition of them. Possibly everything said in the petition might have been literally true, although the decision was based on some defect peculiar to the tax proceedings of 1915. No hint is given, however, of any challenge of the validity of the tax excepting that based upon the character of the plaintiff's rights with respect to the real estate, and the repeated references to that feature of the matter would seem entirely purposeless, unless that were the controlling issue. The petition alleged that in the prior action the plaintiff asked an injunction against the defendants, restraining the collection of a tax on "the alleged property, which they claimed plaintiff owned by virtue of said deeds"; that the defendants answered "by setting up that it was a taxable property owned by plaintiff by virtue of the provisions in said deeds, and claimed the right to assess the property and tax the plaintiff allegations and to give character to them by et al. (No. 21488.) (103 Kan. 84) (Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.) 1. CORPORATIONS 426(8) EVIDENCE The plaintiff furnished to a building contractor certain machinery supplies for an elevator upon receipt of a letter from the secretary of the elevator association that the latter would guarantee the payment of the supplies. The minutes of the corporation recited: "Directors' Meeting, Oct. 2, 1915. The secretary is hereby instructed to write the Great Western Manufacturing Company * * * that the association will guarantee the payment of machinery going into the elevator now under construction by G. A. Porter, under contract." The by-laws of the association provided for monthly meetments showing all transactions since the last ings at which all officers should submit statemeeting. The corporate minutes and the secretary's action stood unchallenged for several months and until the association was called upon to pay under its guaranty. "Held, that the minutes of the corporate record could not be impeached by the parol evidence of the directors, who did not remember at; that the association is estopped to dispute the directors' meeting or what transpired therethe accuracy of its corporate minutes; that by inaction of the board of directors at their subsequent monthly meetings the association acquiesced in and ratified the conduct of the secre2. GUARANTY ~~7(1) NOTICE OF ACCEPT tary. 3. APPEAL AND ERROR 1176(3)—REVIEW— TECHNICAL ERRORS-FINAL JUDGMENT. Where all the controlling facts to determine a liability are established, and the defense to the liability wholly fails, a new trial is unnecessary, and final judgment on the liability should be ordered. Appeal from District Court, Sheridan County. Action by the Great Western Manufacturing Company against G. A. Porter and another. Judgment for defendants, and plaintiff appeals. Reversed, with instructions to enter judgment for plaintiff. F. A. Sloan, of Hoxie, and W. W. Hooper, of Leavenworth, for appellant, W. H. Clark and C. L. Thompson, both of Hoxie, for appellees. Thereafter the goods were shipped and delivered on November 6, 1915. The defendant answered: "That this defendant never at any time authorized any one to guarantee the payment of any sum to plaintiff herein; that this defendant never received any notice or claim from said plaintiff that plaintiff claimed to have any guarantee from this defendant, or that plaintiff had not been paid in full for all material that it had have shipped, until long after this defendant shipped to the said G. A. Porter, or claimed to had made settlement in full with the said G. A. Porter for all work and material furnished by the said G. A. Porter in the construction of the elevator for this defendant; that this defendant derived no benefit of any kind from any claim or arrangement of plaintiff." The plaintiff replied: DAWSON, J. The plaintiff manufacturing company brought this action to recover the purchase price of certain machinery installed by the defendant G. A. Porter in an elevator constructed by him at Hoxie for the defend-quiring knowledge of said unauthorized act and ant the Farmers' Union Co-operative Association. The liability of Porter for the price of the goods is not denied, but this appeal is based upon the disputed question of the association's liability as Porter's guarantor. The principal facts upon which plaintiff seeks to fasten liability upon the defendant Farmers' Association are these: "In case said guaranty set out in plaintiff's petition filed herein was executed by J. W. operative' Association, without authority of the Schlicher, secretary of the Farmers' Union Cosaid Farmers' Union Co-operative Association, said Farmers' Union Co-operative Association has ratified said guaranty by failing to disaffirm same within a reasonable time after acby accepting the benefits thereunder, and that said Farmers' Union Co-operative Association is therefore estopped from denying said guaranty." On these issues the cause was tried to a jury. The plaintiff's evidence tended to support the matters pleaded by it, the minutes of the directors' meeting, the letter written to plaintiff by the secretary of the associaIn September, 1915, Porter, who had a con- tion, and the company's check, payable to tract with his codefendant to erect an eleva- Porter, for plaintiff's supplies were likewise tor for the latter, ordered the machinery from introduced. So, too, the by-laws of the asplaintiff. Plaintiff declined to ship the ma-sociation were in evidence. Two of these, in chinery without some assurance from the association that payment would be forthcoming. The minutes of the association's corporate record read: "Directors' Meeting, Oct. 2, 1915. "The secretary is hereby instructed to write the Great Western Manufacturing Company, Kansas City, Mo., that the company or association will guarantee the payment of machinery going into the elevator now under construction by G. A. Porter, under contract." part, read: 66 # * held on the third Tuesday of each month. At * Regular monthly meetings shall be the regular meeting of the board a thorough examination of the affairs of the company shall be made, and all officers shall submit full and complete statements at such meetings, showing all transactions since the previous meeting. * "Sec. 8. Quorum at Directors' Meeting. Three members of the board of directors shall constitute a quorum to do business at any meetThe plaintiff received a letter from the sec from day to day till a quorum can be secured.". ing of the board. A less number may adjourn retary of the association which reads: "Hoxie, Kan., Oct. 11, 1915. "Great Western Mfg. Co., K. C., Mo.-Gentlemen: I have been directed by the Hoxie Farmers' Union Co-operative Association board of directors to guarantee the payment of the $256 supplies for the elevator now under construction by G. A. Porter, contractor. The Hoxie Farmers' Union Co-operative Association, by John W. Schlicher, Secretary." About two weeks thereafter the defendant drew and delivered to Porter the following check: "Hoxie, Kan., Oct. 27, 1915. "The First National Bank: $260.00. "Pay to G. A. Porter E. C. contract or order two hundred sixty 00/100 dollars for Great Western Elevator supplies. Indorsed on back: "G. A. Porter." "J. R. Cooper, On behalf of the defendant elevator association the oral evidence tended to show that there was no formal meeting of the directors on October 2, 1915. The president of the association, who was also one of the five directors, testified: "That he was the president of the Hoxie Farmers' Union Co-operative Association on October 2, 1915, and a director of said union, and that he didn't attend any directors meeting on October 2, 1915, that he was aware of; that he had no recollection and that no, knowledge came to him that a meeting was held on that day; that there were five directors of the company at that time, himself, Mr. Burr, Mr. Schlicher, Mr. Cooper, and Mr. Wright; that at no time prior to October 2, 1915, or subsequent to that date or at any other time did he have knowledge of the board of directors making or instructing any one to guarantee the payment of any account of G. A. Porter; that the matter might have been talked of on the streets. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes guarantee the payment failed. The minutes of the corporation, standing unchallenged and uncorrected for several months, estop but there was never any action taken by the board of directors, and the board of directors did not authorize any one to write the Great Western Manufacturing Company the letter dated October 11, 1915, guaranteeing the pay- the defendant to deny the guaranty. The ment of $256 for supplies for the elevator un-check to Porter was intended to pay for plainder construction." tiff's supplies. The check says so. That Porter converted the proceeds of the check does not relieve the association nor satisfy plaintiff's claim. The attorney's letter, written with admitted authority, recognizes and concedes the liability; the record shows that in no way can the defendant rightfully prevail; and since all the material facts are incontrovertibly established, a new trial would confer no favor on the defendant, but only prolong litigation over a liability which de A second director, F. M. Burr, testified that he thought the directors had a meeting about October 2d, but did not remember that the guaranty proposition had been mentioned. This witness admitted that the secretary of the company had told him about the guaranty "in the fall of 1915." The third director, L. J. Wright, did not remember consenting to the guaranty, but did recall that something was said about it. The fourth director, John Cooper, did not attend a directors' meeting on | fendant cannot escape; and judgment for October 2d, but testified: "Q. Did you have any conversation with Mr. Schlicher relative to this matter? A. Well, we probably talked it over some time when we might have met." plaintiff should be directed. Civ. Code, § 581 (Gen. St. 1915, § 7485). Reversed, with instructions to enter judgment for plaintiff. All the Justices concurring. (103 Kan. 40) The attorney for the defendant association testified that on February 14, 1916, pursuant to authority of the association he had writ- BUNDY v. PETROLEUM PRODUCTS CO. ten to the plaintiff: "The union will pay your claim, if it has not been paid, but will expect you to help them prosecute Porter if necessary." The verdict and judgment were for the defendant, and the principal error urged is that these are contrary to the evidence. (No. 21205.) (Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.) 1. MASTER AND SERVANT 385(1)—WORKMEN'S COMPENSATION ACT-GRADE OF WORK -AMOUNT. Under the Kansas statute a workman who has been engaged for a specific employment at a fixed amount may recover from his employer compensation, based upon the earnings of persons in that grade of service, for an injury re ent grade, to which he had been assigned for a [1, 2] It seems clear that the judgment cannot stand. The forgetfulness of the directors touching the meeting of October 2d does not prove the defense which the association set up-that it had “never at any time authoriz-ceived while working for less wages in a differed any one to guarantee the payment of any sum to plaintiff herein." The minutes of the corporation clearly show that the guaranty was authorized on October 2d. The by-laws show that after that date regular meetings of the directors were held, or should have been held, on the third Tuesday of each month. Several months elapsed before the liability of the association on its guaranty became a disputed question. At these subsequent monthly meetings there was ample opportunity to correct the minutes if they did not speak the truth. The elements of both estoppel and acquiescence intrude to bar the defense pleaded. Furthermore, in communicating with the plaintiff the secretary was acting within both the apparent and specific scope of his authority, and his letter bound the defendant association when the plaintiff, by shipping the goods pursuant to the secretary's assurance, accepted and acted on the guaranty. Written notice of acceptance was not necessary. Platter v. Green, 26 Kan. 252; and citations in note in 16 L. R. A. (N. S.) 355 et seq. [3] Does this conclusion leave anything on which to base a new trial, or should judgment be ordered? The defense of want of authority on the part of the secretary to apprise the plaintiff that the association would [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Benefit.] Appeal from District Court, Montgomery County. troleum Products Company, to recover damAction by Ralph G. Bundy against the Peages under the Workmen's Compensation Act. Judgment for plaintiff, and defendant appeals. Modified. Thomas E. Wagstaff, of Independence, for appellant. O. C. Mosman, of Kansas City, Mo., and W. E. Ziegler, of Coffeyville, for appellee. MASON, J. Ralph G. Bundy received an injury while in the employ of the Petroleum Products Company, which resulted in perma |