of such suit was a waiver of all defenses to | ceded, a judgment may properly be entered plaintiffs' claim for a commission." against such creditor in favor of the other crediThis court refused to reverse the judg-tors for the sums due them from the debtor in ment on account of the withdrawal of the conformity with the terms of the assignment. Appeal from District Court, Kiowa County. Action by Tim Rich and others against M. C. Snyder and others. Judgment against defendant named, and he appeals. Affirmed. John D. Beck, of Greensburg, for appellant. C. H. Bissitt and O. G. Underwood, both of Greensburg, for appellees. evidence of the settlement, but did not say anything about the trial court's not holding that the settlement of the suit was a waiver of all defenses to the plaintiffs' commission. By compromising the action commenced by D. H. Hanna, the defendants did not render themselves liable to the plaintiffs for the payment of any commission. By compromising the litigation, the defendants did not DAWSON, J. The plaintiffs were the asadmit either the justice of Hanna's claim, or signees of an insurance policy for $200. The that they were liable thereon. They may have paid $150 to get rid of a vexatious law-fire loss, assigned the policy to them_to insured, R. W. Farris, who had suffered a suit when they knew that they could prevall by fighting. To hold the defendants liable for the commission which the plain satisfy debts due for work and labor. The fire loss to its local agent, F. W. Roberts, insurance company sent the money to pay the and the defendant, M. C. Snyder, sued Farris Roberts. Snyder knew that the policy had and garnished the money in the hands of plaintiffs knew of the garnishment proceedtheretofore been assigned to plaintiffs; and tiffs seek to recover would be to discourage settling litigation, The policy of the law should be, and is, to encourage compromises. When they are made the rights of third parties are not in any way affected thereby. The plaintiffs' right to re-ings, but were not made parties thereto. cover commission from the defendants can not be based on the settlement of the action commenced by Hanna. The plaintiffs cite Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629; Parker v. Estabrook, 68 N. H. 349, 44 Atl. 484; Willson v. Crawford, 61 Tex. Civ. App. 580, 130 S. W. 227; Foster v. HolbrookArmstrong Iron Co., 158 Wis. 447, 149 N. W. 148; Kirkland v. Berry, 136 S. W. 832. None of the cases cited is controlling in the present action. In Davis v. Roseberry, supra, the landowner voluntarily accepted $500 in lieu of other performance of a binding contract. In the present action the contract was not binding, and the $150 was not paid in lieu of performance. The judgment of affirmance is adhered to, and the petition for a rehearing is denied. All the Justices concurring. Snyder obtained judgment, and the money was paid over to him. Thereupon plaintiffs brought this action against Snyder and the other parties concerned, and obtained judgdue them from Farris, and for the satisment against Snyder for the exact amounts faction of which sums Farris had assigned the policy to them. [1, 2] Just what error in this judgment is It is said that the action brought was equiurged by defendant is not easily discernible. table in its nature, and that an adequate remedy at law would have answered the purpose. Notwithstanding our Code has abolished the ancient distinctions and forms of actions at law and of suits in equity, and has provided one form of action—a civil action-in lieu thereof, fundamental differences in actions sometimes do exist, but we do not discern how any such differences affect the case at bar. The facts were all pleaded. The parties were all before the court, and their true relationship was a proper subject of judicial inquiry. The garnishment did not lawfully operate on so much of the proceeds of the policy as had already been assigned to plaintiffs. Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210, L. R. A. 1916D, 361. Having gotten possession of the proceeds of the insurance policy when he knew it had been assigned to plaintiffs, Snyder became, in law, a trustee thereof for plaintiffs' benefit. He must therefore hand over to plaintiffs their due. There is no semblance of error in this judgment. It is not conceivable that some different form of action or different procedure properly invoked could have brought about a different result. Affirmed. All the Justices concurring. (103 Kan. 169) WASHBURN et al. v. BOARD OF COM'RS (Syllabus by the Court.) county commissioners had advertised for bids for doing the work, when a new action was brought to enjoin it by an owner of land in the benefit district and a resident of the township who is liable for taxes on property elsewhere in the county. The plaintiffs were denied relief and appeal. [1] 1. They contend that it was beyond the power of the Legislature to change the distribution of the cost of the improvement after the petition therefor had been signed and acted upon. We regard the contention as not well founded. The owners of the land within the benefit district were not prejudic 1. HIGHWAYS 122 IMPROVEMENT APPORTIONMENT OF COSTS STATUTE. Where proceedings for the improvement of a highway are begun under a statute providing that one-fourth of the cost shall be paid by the township and the remainder charged against the land in a benefit district, it is competent for the Legislature thereafter to change the distribution so that the cost shall fall onefourth on the township, one-half on the county, and the remainder upon the land in the benefited by the alteration, because their burden district. The owner of the specially benefited land is not prejudiced, for his burden is lightened, and the general taxpayers of the county have no legal ground of complaint, because it is within the discretion of the Legislature to impose any part of the cost of a highway upon the county. 2. HIGHWAYS 122-IMPROVEMENT APPORTIONMENT OF COSTS-STATUTE-NOTICE. In such a statute no provision is necessary for notice to the owners of property other than land in the benefit district, for as to them the tax is general, or, if it is regarded as special, they are conceived as having notice through their representatives in the Legislature; that body having itself determined the apportionment of the burden. 3. HIGHWAYS 109-PUBLIC IMPROVEMENT -PETITION FOR ROADWAY-CALL FOR BIDS VARIANCE. A call for bids for the construction of "a hard surface road of 'bituminous macadam'" shows no departure from the requirements of a petition for a roadway of "crushed stone or macadam with a top surface of Bermudez asphalt, or other asphalt equally as good, employing what is known as the 'penetration' method." Appeal from District Court, Shawnee County. Action by F. M. Washburn and others against the Board of County Commissioners of Shawnee County. Judgment for defendant, and plaintiffs appeal. Affirmed. James A. Troutman, of Topeka, for appellants. Hugh T. Fisher, of Topeka, for appellee. was diminished. The taxpayers of the town- [2] 2. The plaintiffs argue that the stat- the Legislature, inasmuch as that body has itself directly determined the apportionment of the burden, without committing any essential feature thereof to an inferior tribunal. & Jones, § 123; Judson on Taxation (2d Ed.) $ 418. So far as relates to the valuation of his property, the taxpayer has the benefit of the notice and hearing provided by the statute relating to general taxation. [3] 3. The petition asked for the improvement of the highway "by constructing a roadway using stone or macadam with MASON, J. Prior to 1917, proceedings Railroad Co. v. Abilene, 78 Kan. 820, 826, were begun for the improvement of a high-98 Pac. 224; 1 Taxation by Assessment, Page way under a statute providing that onefourth of the cost should be paid by the township, and that the remainder should be charged against the land in a benefit district. Gen. Stat. 1915, §§ 8815-8826. By reason of litigation which resulted in confirming the validity of the steps already taken (Stevenson v. Shawnee County, 98 Kan. 671, 704, 159 Pac. 5), the work was delayed, and in the meantime the statute was amended (Laws of 1917, c. 265): the amendment being specifically made applicable to roads theretofore petitioned for (section 14). In the new statute the distribution of the cost was changed so that the township should bear one-fourth, the county one-half, and the land in the benefit district the remainder. Section 6. The a top surface of Bermudez asphalt, or other | asphalt equally as good, employing what is known as the 'penetration method.'' The notice to contractors asks for bids "for the constructing of a hard surface road of 'bituminous macadam' * as called for now in the plans and specifications * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plaintiffs suggest that the character of the road described in the bid is not the same as that petitioned for. We perceive no inconsistency. According to Webster's New International Dictionary, bitumen originally meant mineral pitch or asphalt, and by extension includes that substance with others; "bituminous macadam" means "bitulithic pavement," and "bitulithic" is an adjective "designating a kind of paving the main body of which consists of broken stone cemented together with bitumen or asphalt." The specifications referred to are, of course, controlling, and presumably conform to the petition. provision that the land was conveyed for the express purpose of schools, and when not used for that purpose, or when it should become necessary to change the site, the land should revert to the original owner. Within the past two years it has been discovered that the entire school district lies near the center of the Butler county oil field, and the land on all sides of the school site is being exploited for oil. Andrew J. Owen died in 1888, and by will devised all his property to his wife. Afterwards she sold the farm, subject to the rights of the school district. There have been a number of conveyances to other parties since. The judgment is affirmed. All the Justices In the fall of 1917 John Madden, Jr., proconcurring. (103 Kan. 162) cured quitclaim deeds from Sarah Ann Owen, conveying whatever rights she had in the school premises, and also procured from the ABRAHAM et al. v. WEISTER, School Di- present owners of the quarter section quit rector, et al. (No. 21792.) (Supreme Court of Kansas. (Syllabus by the Court.) SCHOOLS AND SCHOOL DISTRICTS 111 JUNCTION. Under section 265, Code Civ. Proc. (Gen. St. 1915, § 7163), before taxpayers of a school district can maintain a suit to set aside an oil and gas lease of the school site executed by the school board, and enjoin the lessee from entering upon the school premises and exploiting for oil and gas, it must appear that the contract and the acts complained of may result in imposing some burdens of taxation upon the plaintiffs. Appeal from District Court, Butler County. Action for injunction by J. H. Abraham and others against E. P. Weister, Director of School District No. 37 in Butler County, and others. Temporary injunction refused, and plaintiffs appeal. Affirmed. claims of any interest held by them. Madden May 11, 1918.) subsequently transferred his interests to the Revert Oil Company, which was organized for the purpose of taking over the school site and exploiting it for oil and gas. Thereafter the Revert Oil Company made an offer to the school district for a lease, and agreed to deposit in escrow the sum of $3,500, which was to be paid to the district in case an election carried and the lease was executed, and also agreed to pay the district $3,500 more out of the proceeds of the first oil produced, and one-eighth royalty on all oil or gas thereafter produced. This proposition was submitted at a special election on the 20th of December, 1917. There was no reservation in the lease permitting the school district to make use of any portion of the site for school purposes. It was the usual oil and gas lease providing for damage to growing crops. The vice president and the secretary of the Revert Oil Company appeared at the meeting at the time of the election and talked to the voters, and left with the school board a writing purporting to be executed on behalf of the company, agreeing that if its proposition for a lease was accepted it would, after consulting with the board, move the present schoolhouse forward on the school lot, and if necessary fence off its drilling operations, so that the schoolhouse might be continued to be used for school purposes, "with entire safety to the pupils," until such time as a new schoolhouse is erected "and properly safeguarded," and stating the understanding of the company to be that there should be no interruption in the use of the schoolhouse for school purposes by reason of drilling operations. The election resulted in 52 votes for and 32 votes against the proposition. The lease was executed, the first payment of $3,500 was made to the school board, the schoolhouse was moved to another part of the premises, when the suit was brought by the plaintiffs to enjoin further proceedings. R. C. Davis, of Hutchinson, John H. Brennan and R. H. Hudson, both of Bartlesville, Okl., and A. C. Malloy, of Hutchinson, for appellants. Chester I. Long, A. M. Cowan, John Madden, C. E. Cooper, B. F. Hegler, Fred Stanley, C. C. Stanley, and James G. Martin, all of Wichita, for appellees. PORTER, J. The plaintiffs, who are patrons and taxpayers of school district No. 37 in Butler county, brought suit to enjoin the school board from executing an oil and gas lease covering the school grounds, and to restrain the defendants from going upon the premises and exploiting for oil and gas. A temporary restraining order was granted, but the court on a hearing refused a temporary injunction, and taxed the costs of the proceedings to the plaintiffs, who bring the case here for review. The quarter section in which the school is located belonged in 1885 to Andrew J. Owen. He and his wife executed a warranty deed to the district conveying a tract out of the southwest corner of the quarter with the There was testimony showing that the in- Į join the use of the lot for such purpose. Our tention is to drill an oil well on the school- statute would authorize the plaintiffs to house site in close proximity to the school-maintain this suit if it appeared that the house; that for each oil well a pit 50 to contract or the acts complained of "may re60 feet in diameter and from 4 to 6 feet deep sult in the creation of any public burden or is necessary; that the operations would oc- the levy of any illegal tax, charge or assesscasion noise from the exhaust of an engine, ment, and any number of persons whose the turning of bull wheels and sand wheels, property is or may be affected by a tax or the heating of bits with blowers, and the assessment so levied, or whose burdens as pounding of bits with sledge hammers; that taxpayers may be increased by the threatenthe oil and gas create an unpleasant odor; ed unauthorized contract or act, may unite and that there is some danger of fire from the in the petition filed to obtain such injuncwells. The testimony also shows that from 3 tion." Section 265, Civ. Code; Bunker v. to 5 offset wells, and possibly more, would be City of Hutchinson, 74 Kan. 651, 87 Pac. drilled next to the boundary line of the 884; Water, Light & Gas Co. v. Railway Co., school premises. There are approximately 74 Kan. 661, 87 Pac. 883. 150 pupils of school age in the district, the school population having materially increased by reason of the large number of laboring men employed in the oil business, who have brought their families into the district. We are unable to discover from the record in what manner the carrying out of the contract may impose burdens upon the plaintiffs; and it cannot be assumed merely because the contract is illegal, or because it is alleged to be so, that it will result in imposing upon the plaintiffs such burdens. Whether the trial court denied the application for a temporary injunction upon the ground of the plaintiffs' incapacity to sue, or because it was held that the contract is one which the board had authority to make, does not appear. Since plaintiffs have not been able to bring themselves within the provisions of the statute, and cannot maintain the suit, it is unnecessary to pass upon the other questions. The judgment is affirmed. All the Justices (103 Kan. 128) May 11, 1918.) (Syllabus by the Court.) SALES 90-BREACH OF CONTRACT-SATISFACTION-NEW CONTRACT EVIDENCE. By the terms of the contract the board agrees to turn over the school site to the oil company, permit it to move the school building to one side, in order that it may use the premises to exploit for oil beneath the surface, permit the erection upon the school lot of derricks, engines, tanks, or oil pits, and other appliances and machinery with the attendant noise, confusion, unpleasant odors, and possible danger to the school children. It appears, too, from the evidence, that the drilling on the school site will necessarily result in the school premises being surrounded on three sides by the drilling | concurring. and operation of offset wells by other oil companies and owners of the oil rights under the adjoining lands. The plaintiffs' conten- CAPITAL IRON WORKS CO. v. FINNEY. tion is that these facts, which are not dis(No. 21546.) puted, establish a probability that the con- (Supreme Court of Kansas. ditions will result in the entire loss of the property to the district, and that in the future it will become necessary to procure another school site. On the other hand, the defendants contend that since the district has already been paid $3,500 bonus, and is to receive another payment of an equal amount, besides a royalty of one-eighth of all oil that may be produced, it is conclusively established that the plaintiff's will be relieved from the burdens of taxation, instead of having such burdens imposed upon them. Section 265 of the Code (Gen. St. 1915, § 7163) does not authorize the plaintiffs to maintain a suit of this character merely because of the contention that the contract is one which the school board is unauthorized to make. While there are authorities which seem to go to this extent, they do not appear to depend upon a statute worded like ours. In Herald et al. v. Board of Education, 65 W. Va. 765, 65 S. E. 102, 31 L. R. A. (N. S.) 588, it was held that residents and taxpayers in a school district may sustain a suit to enjoin a lease of a school lot for oil and gas as unauthorized and void, and en The evidence held to support a finding that the entering into a new contract had been accepted as a satisfaction of any claims on account of the breach of the original agreement. Appeal from District Court, Lyon County. Action by the Capital Iron Works Company against W. W. Finney. Judgment for plaintiff for $5.10, and it appeals. Affirmed. Garver & Garver, of Topeka, for appellant. Hamer & Ganse, of Emporia, for appellee. MASON, J. On January 13, 1916, the Capital Iron Works Company entered into a written contract with W. W. Finney by which it agreed to furnish for $1,700 the iron and steel work for a garage. Later Finney informed the company that by reason of a change in his plans he could not use the material contracted for, with certain exceptions, and directed the discontinuance of the work. Five cast-iron lintels which were furnished were paid for. The company sued Finney for damages for breach of the contract. The For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes defendant filed an answer stating in effect | ment to pay for the material actually furnishthat the contract had been modified by mu-ed at a different price, presumably higher tual consent, a new agreement being made than that at which it was figured in the origproviding that the material furnished should inal contract, formed a sufficient considerbe paid for upon an agreed basis, and as to ation for the modification. 13 C. J. 592. the rest the contract should be canceled. The judgment is affirmed. All the Justices In a reply the plaintiff denied this allegation concurring, and asserted that no consideration existed for any modification or cancellation of the contract. A trial resulted in findings and a CARSON et al. v. ATCHISON, T. & S. F. judgment in favor of the defendant, the RY. CO. (No. 21551.) plaintiff being allowed a recovery of only $5.10. The plaintiff appeals. (103 Kan. 138) (Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.) NEGLIGENCE NANCE. PERSONAL INJURY BREACH OF SPEED ORDI Rule followed that in an action for damages against a railway company the breach of a city speed ordinance cannot be considered as an element in establishing the railway company's negligence unless the damages are traceable to or aggravated by the violation of the ordinance. 2. RAILROADS 276(3)-INJURY ON TRACK TRESPASSERS. A railway company ordinarily owes no duty to be on the outlook for juvenile trespassers who may be inclined to climb upon the freight cars of its moving trains, and it is not liable for injuries sustained by such juveniles in so doing. There was a direct conflict in the evidence. The defendant gave testimony to this effect: 1. RAILROADS 279 On January 14, 1916, the day after the signing of the contract, he wrote a letter to the plaintiff which he deposited in the mail, proprly addressed and stamped (the receipt of which was afterwards referred to by representatives of the company in conversation with him), stating that he had changed his plans and directing that no work be done except upon the lintels and columns. About February 24, 1916, he called at the company's office in pursuance of an appointment made by telephone and told the manager (who had signed the contract for the company) that he had come to see about the shipment of the lintels and columns and to make full settle-duty to a trespasser is merely to avoid injuring Rule followed that a railway company's ment with him. He proposed to the man-him willfully. ager that they be shipped and billed at the 4. RAILROADS 282(5)-PERSONAL INJURY— regular price (irrespective of that fixed by the original contract), saying that he would pay that amount and would also pay for his share of some expenses incident to the letting of the contract. The manager said that this was satisfactory. The plaintiff introduced evidence denying this conversation and denying the receipt of the letter referred to, but the decision of the court must be regarded as resolving all controversies concerning the facts in favor of the defendant. The plaintiff contends that, even assuming the truth of the defendant's evidence, it was entitled to recover damages resulting from the breach of the contract; one item being the loss of the anticipated profits. We regard the evidence already set out as sufficient to support a finding that the contract was modified by agreement, and that the defendant had carried out the terms of the modified agreement on his part; or, stated in another way, that the plaintiff had agreed to accept, in satisfaction of any claim for the breach of the original contract, the payment by the defendant of a share of the expenses referred to, and the acceptance of the lintels and columns at a price then agreed upon. This seems a legitimate interpretation of the defendant's testimony that (after telling the plaintiff's representative that he had come to make a full settlement) he proposed to make these payments, and in reply was told that this was satisfactory. The agree 3. RAILROADS 2731⁄2-INJURY ON TRACK— DUTY TO TRESPASSERS. EVIDENCE NEGLIGENCE CONTRIBUTORY The facts and relevant circumstances adduced in evidence to sustain an action for damages against a railway company for the death of a bright 12-year old boy tended to show that the boy climbed upon the fore truck of a freight car in a train moving from 5 to 15 miles per hour through a city having an ordinance limiting train speed to 7 miles per hour; and that he fell off and was run over by the car that the boy's foot became fast in the truck wheels, and that he was dragged by the foot some 1.200 feet before the train was stopped; that the enginemen did not see or did not rethat the trainmen did not see the accident; spond promptly to the signals of a bystander to stop the train after the accident had occurred. The boy died of his injuries. Held, that this evidence did not establish negligence on the part of the railway company; that it did establish negligence on the part of the boy; and that a demurrer to the evidence was properly sustained. Appeal from District Court, Finney County. Action by Anna V. Carson and another against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiffs appeal. Affirmed. H. O. Trinkle, of Garden City, for appellants. W. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, William Osmond, of Great Bend, and Wm. E. Hutchison, of Garden City, for appellee. DAWSON, J. The plaintiffs sued the defendant for the death of their 12-year old son, who was killed at Garden City. Al |