of Iowa City, under the trade-names of the, eral security on or about the 9th day of August, 1913? Answer. Yes. City, Iowa, at the time it took the note in suit, "(5) Was the First National Bank of Iowa guilty of bad faith in so doing? Answer. Yes. “(6) If you answer the above question in the affirmative, then state the particular facts constituting such bad faith. Answer. On account of suits pending on similar notes. "(7) Did the First National Bank of Iowa City, Iowa, have notice of any defect in the note in suit at the time it acquired the same? Answer. Yes. "(8) If you answer the above question in the affirmative, then state the particular facts of which it had notice. Answer. By past experience on similar notes." There was evidence which tended to show that the Puritan Manufacturing Company transferred the note to the First National Bank of Iowa City, as collateral, to secure the payment of the notes of that company aggregating $8,000; that about a month before these notes became due, the bank notified the company that payment of the notes would be expected at maturity; that M. F. Price, or Mr. Taylor, a representative of Price, went to the plaintiff and induced him to go to the bank and purchase the notes of the Puritan Manufacturing Company and take the collateral then held by the bank to secure the pay The contract had printed thereon the fol- ment of the notes as security in the hands lowing. "The attached note is tendered in settlement of this order and the company is authorized to detach same when the order is accepted." Under the contract, the goods described were to be shipped by the Lyon-Taylor Company to the defendant f. o. b. transportation company. The Lyon-Taylor Company did not ship some of the goods promptly, and those goods were not in the hands of the defendant when they were to be delivered to the contestants as prizes. The note sued on was attached to the contract at the time it was signed, but was detached before it was transferred. A copy of the note attached to the petition was indorsed, "Lyon-Taylor Company, by M. H. Taylor." The answer contained a general denial, an allegation that the plaintiff was not the owner of the note in good faith, and that if he ever did purchase the note, it was after the maturity thereof, with notice of the defenses and equities of the defendant. The answer further alleged the failure of the Lyon-Taylor Company to perform their part of the contract, set up a counterclaim of $175.55, alleged damages in the sum of $100, prayed judgment for $271.55, and tendered into court $117.45. The amount tendered into court was 92 hundredths of 1 per cent. of the gross sales made by the defendant for the period agreed to under the contract. The answer was verified. The jury returned a verdict for $13.92 in favor of the plaintiff, and answered certain special questions as follows: "(4) Did the First National Bank of Iowa City, Iowa, acquire the note in suit as collat of the plaintiff; that an arrangement was then made between Price or Taylor and the plaintiff by which, if any of the notes taken as collateral were unpaid at maturity, such notes should be turned over for collection to an attorney to be named by Price, and the plaintiff should not be at any loss or expense on account of such collection. The note sued on was among those held by the bank as collateral, and was, by the bank, turned over to the plaintiff. [1] 1. The plaintiff requested a peremptory instruction for judgment in his favor, moved for judgment on the special findings of the jury, and filed a motion for a new trial, in which he alleged "that the general verdict and the answer to the special questions are contrary to the evidence." The request for instructions and the motions were denied, and error is assigned thereon. The note was past due when the plaintiff became the owner of it, and he was not the holder thereof in due course; but he claims to have derived his title from a holder in due course, and that, therefore, he held the note free from any defenses in favor of the defendant. Section 6585 of the General Statutes of 1915 provides that: "A holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter." Section 6579 of the General Statutes of 1915 reads: "A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice some evidence to show that the bank obtainthat it had been previously dishonored, if such ed the note by assignment from that comwas the fact; (3) that he took it in good faith and for value; (4) that at the time it was ne-pany. The Puritan Manufacturing Company gotiated to him he had no notice of any in- was not the holder of the note in due course. firmity in the instrument or defect in the ti- The name was one of the trade-names under tle of the person negotiating it." which M. F. Price did business, and he had What was there to show that the First notice of all defenses and equities in favor National Bank of Iowa City was not a hold- of the defendant. If the bank obtained the er in due course? This question is answered note by assignment, without reference to the by the special findings of the jury. Those indorsement of the Lyon-Taylor Company, it findings were not sufficient to establish that took the note subject to the equities and defact. Neither the fact that suits on other fenses of the defendant. McCrum v. Corby, notes of like character given by other par- 11 Kan. 464; Hadden v. Rodkey, 17 Kan. ties, nor the fact that the bank had previ-429; Hatch v. Barrett, 34 Kan. 223, 8 Pac. ously had like experience on similar notes, | 129; Briggs v. Latham, 36 Kan. 205, 13 Pac. was sufficient to establish that the bank was 129; Offenstein v. Weygandt, 89 Kan. 739, guilty of bad faith in taking the note sued 132 Pac. 991. on, or that it was not the holder thereof in due course. When the note was delivered to the bank, it was indorsed in blank by the payee thereof. The note was then payable to bearer, and was negotiable by delivery. Gen. Stat. 1915, § 6561. The burden was on the defendant to prove that the bank was not the holder of the note in good faith. Mann v. National Bank, 34 Kan. 746, 10 Pac. 150; Savings Association v. Barber, 35 Kan. 488, 11 Pac. 330; Gafford v. Hall, 39 Kan. 166, 17 Pac. 851; National Bank v. Elllott, 46 Kan. 32, 34, 26 Pac. 487; Brook v. Teague, 52 Kan. 119, 125, 34 Pac. 347; Clark v. Skeen, 61 Kan. 526, 532, 60 Pac. 327, 49 L. R. A. 190, 78 Am. St. Rep. 337; Gen. Stat. 1915, § 6586. Under the findings of the jury, the judgment on the note could not be reduced by any matter set up in defense. [2] 2. To sustain the judgment, the defendant argues that the evidence did not prove the indorsement of the note by the Lyon-Taylor Company, but did prove that the First National Bank of Iowa City acquired the note from the Puritan Manufacturing Company by assignment on a separate sheet of paper. The indorsement of the note by the Lyon-Taylor Company was established by abundant evidence. The defendant's contention concerning the transfer of the note by the Puritan Manufacturing Company by assignment is based on the following testi mony: "Q. Now, how did you know whether you were getting any title to that Lyon-Taylor paper at that time if you did not know who composed the firm? A. Because it was indorsed by the Lyon-Taylor Company, and subsequently indorsed by the Puritan Manufacturing Company, and the Puritan Manufacturing Company guaranteed to us the genuineness of the previous indorsement. Q. Do you want to be understood as testifying that the notes in suit in these cases are indorsed by the Puritan Manufacturing Company? A. They should be indorsed by the Puritan Manufacturing Company; if not, the assignment was made in separate assignments; in any event the genuineness of the paper would be guaranteed to us by the Puritan Manufacturing Company." The note was not indorsed by the Puritan Manufacturing Company. There was then In Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863, it was held that the holder of a note by assignment written on the back thereof is a holder in due course. But that case does not overrule previous decisions of this court, where the assignment is made in writing and is not attached to the note. The plaintiff took the note from the bank subject to the equities and defenses of the defendant. Other matters are urged by the plaintiff, but there is no substantial merit in any of them, and none of them is of sufficient imPortance to justify discussion. The judgment is reversed, and a new trial is ordered. The same order is made in Nos. 21516 and 21517. All the Justices concurring. (103 Kan. 142) SMITH et al. v. CITY OF COURTLAND 1. MUNICIPAL CORPORATIONS 301-CHANGE The statute providing that the grade of a street may be established by ordinance, and when so established shall not be changed without a three-fourths vote of the city council, does not prevent the establishment of a grade by any other method than the adoption of an ordinance. 2. MUNICIPAL CORPORATIONS 278(3) STREET PAVING-ASSESSMENTS-STATUTE. The statute providing that for the purpose of paying for certain improvements, after the streets "have first been brought to grade," assessments shall be made upon the abutting property, does not fix the order in point of time in which the grade shall be established with respect to the contracting for the improvements or the levying of the assessments, but is intended to insure that the abutting property shall not be required to carry the expense of bringing the street to grade, by providing that it is only the expense that accrues after that work has been done which shall be charged to the adjoining lots. 3. MUNICIPAL CORPORATIONS 323(1, 3) STREET IMPROVEMENT-GRADING-EVIDENCE -INJUNCTION. The evidence held to warrant a finding that the price fixed in a contract for curbing and guttering certain streets included a charge for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bringing to the established grade the part of [ed through an ordinance by virtue of a statthe streets which was to support the curb and ute enacted in 1909, reading as follows: gutter, and therefore to justify an injunction against its enforcement. MASON, J. The city of Courtland, a city of the third class, let a contract for curbing and guttering certain streets. An action was brought by several owners of abutting property, seeking to enjoin the carrying out of the contract and the levying of assessments to pay for the work. On final hearing a permanent injunction was granted, but further proceedings under the resolutions declaring the improvement necessary were expressly allowed. The defendants appeal. The principal objection made to the power of the city to make the improvements referred to by the means employed is that no ordinance has ever been passed establishing the grade of the streets affected. The plaintiffs contend that the grade can be established only by ordinance, and that it must be established before any contract for curbing, guttering, or paving is let. Cases are cited tending to support this contention. C. & N. P. R. R. Co. v. City of Chicago, 174 Ill. 439, 51 N. E. 596; State v. District Court of Ramsey County, 44 Minn. 244, 46 N. W. 349. It has been held sufficient, however, if the grade is fixed before the improvement is made. Allen v. City of Davenport, 107 Iowa, 92, 99, 77 N. W. 532. The matter is so largely controlled by statute that little aid is to be derived from decisions in another jurisdiction. "The mayor and council of the cities of the second and third class may by ordinance establish the grade of any street or alley in said city, and when the grade of any street or alley shall have been so established said grade shall not be changed until a resolution shall have been passed by a three-fourths vote of all the councilmen elected declaring it necessary to change said grade." Gen. Stat. 1915, § 887. The power of a city to establish a grade cannot be thought to be derived from this statute, for it existed prior to the year named. Nor do we regard the statute as making an ordinance necessary to the establishment of a grade in all cases arising after its adoption. Its effect is to provide that a grade which is once established by ordinance shall be changed only by a three-fourths vote. We think the mayor and council still have authority, outside of this statute, to fix the grade of a street, and this result may be brought about by any action, as for instance by a resolution, giving expression to a present intention to accomplish that purpose. See Wood v. Village of Pleasant Ridge, 12 Ohio Cir. Ct. R. 177, 181. [2] 2. The contention that a grade must be established before a street is curbed or guttered is based upon the statute which reads: "Cities of the third class in their corporate capacities, are authorized and empowered to enact tion to other powers granted by law: To pave, ordinances for the following purposes, in addicurb and gutter any street, avenue or alley in said city and to tax the costs and expenses thereof to the abutting property and to issue improvement bonds for the payment of the costs and expenses of such improvements as herein provided. First, for all the paving, curbing, guttering and improvements of the squares and and alleys, the assessment shall be made upon areas formed by the crossing of streets, avenues all the taxable property of the city. Second, for paving, curbing and guttering all streets, avenues and alleys and for doing all excavating and grading necessary for the same, except the squares and areas formed by the crossing of streets, avenues and alleys, after said brought to grade, as now provided by law to be streets, avenues and alleys have first been done, the assessments shall be made for each block separately, on all lots and pieces of ground to the center of the block on either side of such be improved, or on the lots or pieces of ground street, or avenue, the distance improved or to abutting on such alley, according to the assessed value of the lots or pieces of ground without which value shall be ascertained by three dis regard to the buildings or improvements thereon, interested appraisers appointed by the mayor and council.' Gen. Stat. 1915, § 1974. [1] 1. It is true that the passage of an ordinance is the natural method of establishing a permanent as distinguished from a temporary rule or condition. Remington We do not regard this as intended to fix v. Walthall, 82 Kan. 234, 108 Pac. 112, 31 the order in point of time in which the grade L. R. A. (N. S.) 957. Yet where the method shall be established with respect to the conof the exercise of a power which a city tracting for the improvements or levying possesses is not prescribed, it may ordinarily the assessments. Its purpose as we interpret use its own discretion in the matter, to the it is to insure that the abutting property extent at least of employing any usual and shall not be required to carry the expense appropriate means for the purpose. 28 of bringing the street to grade, by providing Cyc. 275. It is contended that the establish- that it is only the cost that accrues after ment of a grade is required to be accomplish- that has been done which shall be charged to the adjoining lots. 64 Kan. 681, 685, 68 said: In Keys v. Neodesha, | ferring to the guttering; that "from a practiPac. 625, 626, it was cal standpoint there is no difference in the elevation of the different blocks"; that "he figured nothing for extra excavation in any one block." Other witnesses said that some of the grade stakes were level with the ground, some above the ground, and some below the surface, a variation of 12 inches being indicated. "Before a city can legally levy a special assessment for building sidewalks, it must establish a grade and bring that part of the street on which the walk is to be built to the grade so established." A decision in favor of the validity of the proceedings would have implied a finding that But the reason is that until the grade is established it cannot be determined what part of the whole cost of the improvement is incurred in bringing the street to grade, that portion of the expense being chargeable that established by the city was not substan to the city generally, and not to the abutting property. [3] 3. An engineer employed by the city prepared the specifications on which the contract was let. He testified that he made a survey, and ran levels the full distance covered by the improvements, taking into consideration the outlying portion of the town; the curb and gutter were to be built according to these levels-on the grade de termined by them, as marked by grade stakes; and that he made or was to make a survey of the town sufficiently to see that it was the correct grade for the draining of any other portion of the town that might be later improved. We think that by entering into a contract (authorized by ordinance) for the making of the improvements in accordance with these specifications, and levying the assessments to pay therefor, the city authorities adopted the grade so indicated. The method pursued was very informal, but doubtless was sufficient to prevent the city from thereafter disputing the establishment of the grade. See O'Leary v. Street Railway Co., 87 Kan. 22, 123 Pac. 746. the variation between the natural grade and tial. But there clearly was some difference, and the court must be deemed to have found upon sufficient evidence that, although small, it was too large to be rejected as inconsiderable, thereby establishing that fact for the purposes of this case. Some slight amount of filling and excavating had to be done on account of this situation, and presumably the contract price was influenced by this fact. Therefore an expense of an unascertained and unascertainable amount, which should have been borne by the city generally, was charged against the abutting property. This justified an injunction against the carrying out of the contract. The objection was timely, and as the improvements have not been made, no inequity results. In Clarke v. Lawrence, 75 Kan. 26, 88 Pac. 735, it was said: "That some grading is necessary to level or fill the inequalities in the surface of a dirt road to prepare it for receiving the pavement seems evident; also, that such leveling would be a necessary incident to the paving of a street, even after it had been brought to grade." The "grading" there referred to was obviously the leveling or smoothing over of slight and inconsiderable inequalities in the surface of the road existing after it had once been completely "graded" in the sense of being brought to the established grade. Here the process was that of bringing the natural grade to that fixed by the engineer. The interest of the adjoining owner in having the grade established is to be assured that under color of paying for the curbing and guttering he is not required to pay for any part of the grading. The engineer testi[4] 4. The conclusion reached requires the fied that "the plans, specifications and pro- affirmance of the judgment, and makes it unfile did not call for any street grading or fill- necessary to pass upon the effect of various ing"; that "the excavations referred to in the other irregularities in the proceedings, which specifications was simply what was necessary are made the grounds of objections by the to install the curbing and guttering"; but plaintiff. The statute already cited seems to that "there was some filling necessary to in- contemplate that the guttering at street install the curb and gutter"; that "the deepest tersections is an improvement that requires excavation would not exceed 14 inches, and an ordinance for its authorization. The orthat would be at the street intersections"; dinance in this instance appears to relate that "the excavation generally required for only to curbing and guttering the parts of the the work was from 8 to 10 inches"; that "in streets in front of the various blocks desigmaking the estimate of cost for this work he nated. It is suggested that if this were the did not consider any excavation or filling oth- only defect the special assessments might be er than that actually connected with the curb upheld by treating the contract as severable. and gutter itself." The representative of the While the agreed price of the various parts company which took the contract testified of the work is shown, it may not be entirely "that there would be some slight difference clear that the inclusion of the intersection in the cost of the work for the different work was not an inducement to the other. blocks; that he simply took the entire street Sedgwick County v. State, 66 Kan. 634, 72 into consideration in figuring on the job; Pac. 634. Objection is made because where that as to excavations necessary for the work, adjoining lots belonged to the same owner he estimated that as a whole it would be the they were not separately assessed. If the thickness of the pavement (6 inches)"-re-proceedings were otherwise regular this might not be fatal, but the plan followed in this regard gives opportunity for a question which might better be avoided. The records of the proceedings of the city council with reference to the proposed improvement, as originally made, failed to show a due compliance with the law in several particulars. After this suit was begun the record was amended by the action of the council; the apparent defects being thus cured. The plaintiffs contend that the amendment could not properly be accomplished in this manner, and at all events that it could not affect their rights in the action already begun. The council had the power to cause the record to be changed so as to show the actual facts. In the absence of a showing to the contrary, the presumption must be that as finally adopted the record spoke the truth, and no prejudice appears to have resulted to the plaintiffs from the original de fect in the entry. We understand this to have been the view of the trial court. The judgment is affirmed. All the Justices concurring. Under Revised Codes, §§ 6501-6503, designating in what county an action for any of the causes therein enumerated must be tried subject to the power of the court to change the place of trial as elsewhere provided in the Code, section 6504, providing that in all other cases the action shall be tried in the county in which the defendants or any of them may reside at the commencement of the action, etc., and that actions upon contracts "may" be tried in the county in which the contract was to be performed, section 6505, providing that an action may lawfully be tried in any county unless defendant asks for a change to the proper county as therein provided, and section 6506, providing that place of trial must be changed on motion (1) when county designated in complaint is not the proper county, (2) where there is reason to believe that an impartial trial cannot be had, (3) when conveyance of witness would be promoted by change, and (4) when judge is disqualified, plaintiff had the right to have an action on a contract tried in the county where the contract was made and was to be performed, although defendant resided in another county; the word "may," as used in that part of section 6504 referring to actions on contracts, having the force of "must." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, May.] 2. STATUTES 206-CONSTRUCTION-INTEN TION. The form of expression used in a statute is not important when the purpose intended and sought to be accomplished by the Legislature is ascertainable and made reasonably certain by applying the rule that every word and clause must be given effect if possible. 3. VENUE STATUTE. 7-ACTION ON "Contract” The term "contract," as used in Rev. Codes, § 6504, providing that action may be tried in the county where contract was to be performed, includes contracts of all kinds whether express or implied. and Phrases, First and Second Series, Contract.1 [Ed. Note. For other definitions, see Words 4. VENUE FIDAVITS. 68-MOTION FOR CHANGE-AF Since by Rev. Codes, § 6504, plaintiff is entitled to bring an action in the county where the contract was to be performed, he is also entitled where place of performance does not appear from his complaint filed in such county to defeat defendant's motion to transfer to the county of defendant's residence by showing place of performance of contract by affidavits. 5. COURTS 204 SUPERVISORY CONTROL — CHANGE OF Venue. There being no remedy by appeal from order granting defendant's motion for change of Court for an order under its supervisory power venue or by mandamus, application to Supreme annulling order and requiring court to retain case for trial is the appropriate remedy, since the court had jurisdiction to entertain and determine the motion rendering certiorari and prohibition unavailing. Application by the State, on the relation of the Interstate Lumber Company, against the District Court of the First Judicial District in and for Lewis and Clark County and Lee Word, a judge thereof, for an order of the Supreme Court under its supervisory power annulling an order of said District Court granting defendant's motion for change of venue in an action wherein relator was plaintiff and Jake Tyanich defendant. Granted, and order annulled. D. Henry C. Smith, of Helena, for relator. W. Rankin and R. L. Dick, both of Helena, for respondents. BRANTLY, C. J. [1] On February 11th of this year the Interstate Lumber Company, a Montana corporation, brought an action in the district court of Lewis and Clark county against Jake Tyanich to recover the sum of $130.08, the agreed price of lumber sold and delivered to him between March 29 and April 18, 1916, with interest thereon from the latter date. The defendant appeared in the action by a general demurrer. At the same time he filed a motion asking that the cause be transferred to Silver Bow county for trial, on the ground that at the time the action was commenced and he was served with summons he was a resident of that county. The motion was supported by his own affidavit disclosing the fact of his residence in Silver Bow county and the service of summons there. The plaintiff, not controverting these facts, resisted the motion on the ground that the contract was made in Lewis and Clark county and was to be performed there, and hence that it had the right to bring the action and have it tried in that county. To support this contention it presented an affidavit by Albert Neider, its general manager, which dis |