Field, alleging the sale of the property to, cuted and delivered to his grantee by a prior him, and asking judgment for the price. He owner and blank as to the name of the granalso caused an attachment to be levied upon tee becomes a purchaser without notice as efthe land as the property of Field, but no fectually as though his grantor had executed service was obtained, and the proceeding was a direct conveyance." Hall v. Kary, 133 Iowa, abandoned. On May 8 or 10, 1908, a stran- 465, 470, 110 N. W. 930, 931 (119 Am. St. Rep. ger came to Guthrie with the deed, the blank 639). In Creveling v. Banta, 138 Iowa, 47, 55, still remaining unfilled, and asked him to in- 115 N. W. 598, doubt is expressed as to the wissert therein his own name (that of the dom of the rule but only on the ground that it stranger). Guthrie, after examining the deed, gives opportunity for concealing property from which was handed to him for the purpose, creditors. We need not determine, however, returned it, saying that he had received noth- what the immediate effect would have been if ing for it, refusing to fill the blank, and for- Field had delivered the deed to the Osage bidding the stranger to do so, or to record Company in violation of his instructions but the deed. On May 12, 1908, the deed was for a fair consideration and without notice filed for record, containing the name of the of any wrong. Whether (in accordance with Osage Live Stock Company as the grantee. the view taken in Lund v. Thackery, 18 S. D. On May 16, 1909, J. W. Riffie, of Kansas 113, 99 N. W. 856) the mere existence of the City, in closing a deal involving other proper- blank would have prevented the company ty, accepted at a consideration of $800 a from acquiring rights as an innocent purdeed from that corporation, he acting in good chaser-would have charged it with the duty faith, in reliance upon the record, and with- of learning the actual scope of Field's auout notice of any irregularity. On June 17, thority-need not be decided. The trial 1908, Guthrie brought this action, seeking to court was justified in finding that Field did set aside the two conveyances described. violate his instructions, and that the Osage Company was chargeable with notice of the fact. Little evidence was available concerning the actual negotiations attending the delivery of the deed, and the circumstances shown did not compel a finding that the company acted in good faith.

The plaintiff contends that the original deed was absolutely void, and incapable of becoming a source of title in any one, because no one but Field had authority to fill in the blank, and he appears not to have done so, inasmuch as the deed was shown to have left his hands without the name of any It follows that under the evidence and findgrantee having been inserted. The modern ings the deed did not pass title; that as beand, as we think, the better rule is that au- tween Guthrie and the Osage Company it thority may be given by parol to insert the could have been set aside. Riffie, however, name of a grantee in a deed, even after de- stands upon a different footing. Either he livery, and such authority may be implied or Guthrie must suffer by the wrongful act from the circumstances. 2 Cyc. 159-160, 168- of Field. Riffie has been diligent throughout. 172; 3 Enc. L. & P. 431-435. We do not re- His conduct has been that of the ordinary gard it as material by whose hand the blank business man. He had no reason to suspect is filled. If Field had complied with his in- any irregularity and no means of ascertainstructions in all other respects-if he had ing the real facts except by making an uncollected the $2,000 and remitted it to Guthrie usual investigation for which there was no -the fact that a representative of the Osage apparent occasion. Guthrie on the other Live Stock Company, instead of Field, wrote hand, by intrusting Field with the blank in the name of the corporation, after the deed, gave him the power to make a perfect expiration of the 30 days, would hardly be record title in any one he might choose. deemed a sufficient ground to avoid the deed. Guthrie intended that, Field should fill in The act of writing the name would have been and deliver the deed, but only upon certain essentially that of Field, though done by an- conditions. Guthrie reposed confidence in other hand. If the blank deed had been Field that he would act in accordance with stolen from Field, and the thief had inscrib- his instructions, knowing that, if he did not, ed the name of a grantee, an entirely differ- some innocent person might be misled. Field ent situation would be presented. But Field's delivered the deed contrary to his instrucstatement was that the land-not the deed- tions, and the consequence followed that had been "almost stolen" from him, and this might have been anticipated if he were to negatives the idea of a surreptitious taking. prove unfaithful-a stranger to the transacIf Field delivered the deed in blank his tion parted with his money having every reabreach of trust was as pronounced, and the son to suppose he was obtaining a good title. probable effects as readily to be anticipated, Under these circumstances, the loss must fall as though he had first filled in the name of a upon Guthrie rather than upon Riffie. The grantee. principle involved is thus stated: "It is a The effect of the delivery of a deed execut- well-settled principle, applicable to both need in blank must depend upon the circum-gotiable and nonnegotiable contracts, that, stances, and upon the manner in which the where a person, with intent to execute a question is raised. In Iowa the rule is firm-contract, delivers to another an incomplete inly established that "one who takes a convey-strument, and such other has authority, ei

suffers loss through relying upon such assurance, and he cannot avail himself of the plea that a blank deed is no deed. Where one intrusts a completed deed to another, he so far retains means of control that by an action against the grantee he can bring notice of a controversy to a possible purchaser-a method not available where no grantee is named. In McNeil v. Jordan, 28 Kan. 7, one who was induced by her agent to sign and acknowledge a deed to him, supposing it to be a different instrument, was held to be bound by it, when the rights of an innocent purchaser had intervened. The court there said: "Where a person not illiterate or of feeble mind, possessed of legal capacity to make a contract, executes and acknowledges a deed without ascertaining its character and extent, upon the representations of another, he puts confidence in that person, and, if injury ensues to an innocent third person by reason of that confidence, his act is the means of that injury, and he ought to answer to it."

complete the instrument, such instrument is enforceable in the hands of a purchaser for value and without notice, notwithstanding the blanks have been filled up in a manner violative of the authority conferred. This doctrine is based on principles of agency. The filling of such blanks in a wrongful manner by a person having express or implied authority to fill them in another way is deemed to be a breach of confidence merely, and is held to be within the scope of the principle that, where one of two innocent persons must suffer through the wrongful act of a third person, the loss must fall on that one who has reposed confidence in such third person and thereby enabled him to perpetrate the wrong." 3 Enc. L. & P. 440-442. The peculiar applicability of the principle to the situation here presented is illustrated by a distinction thus pointed out: "The courts which hold to the doctrine of estoppel by negligence in execution base their holding on the maxim that, where one of two persons must suffer, that one must bear the loss whose conduct made it possible. But, as has An instrument signed under such circumbeen pointed out in many well-considered stances would be deemed a forgery (26 L. cases, this principle applies only where one R. A. [N. S.] 138, note; 17 Am. & Eng. Ann. of the two innocent parties has reposed con- Cas. 705, note), and upon that ground has fidence in the person whose wrongful act oc- been held incapable of supporting a title casioned the loss, and consequently is not even for the benefit of an innocent purproperly applicable where the instrument chaser (McGinn v. Tobey, 62 Mich. 252, 28 was complete when it left the maker's hands N. W. 818, 4 Am. St. Rep. 848). In the case and the person who made the alteration had cited, however, the conclusion was also basno authority, express or implied, to do so." ed upon the view that the owner of the land 3 Enc. L. & P. 445. The weight of authori- was not in fact negligent, although he signty sustains the view, although there is some ed the deed without reading it, since he had conflict, that no title can be acquired, even reason to rely upon the statements made to by an innocent purchaser, in virtue of the him. In State v. Matthews, 44 Kan. 596, unauthorized delivery of a deed deposited as 604. 25 Pac. 36, 39 (10 L. R. A. 308), this an escrow. 16 Cyc. 581; 17 L. R. A. 511, court said, speaking of a deed executed in note. This is put on the ground that the blank: "The directions of the maker with grantor has been guilty of no negligence. If reference to filling the blank were oral, the he is shown to have been negligent, the rule instrument was filled up in the absence of is otherwise. 66 Am. St. Rep. 201-202, note. the maker, and not in accordance with but An obvious distinction is to be noted between contrary to her directions, and to her indepositing a completed deed to be delivered jury; but the parties, now claiming benefits upon conditions, and intrusting to another a under it, acted innocently and in paper which at his will may be converted in- good faith, and without the slightest knowlto an instrument, attested as genuine by the edge of * * fraud or of the imperfecreal signature and acknowledgment of the tions or infirmities of the instrument when grantor, purporting to convey the property it left the hands of the maker, * * and to any one the holder may select. One who they parted with value on the strength of arms another with such an uncontrollable the instrument as it appeared when they or power must know that, if his chosen agent either of them first saw it, and as the makshall prove dishonest, that is likely to hap- er and her agent * * * made pen which in fact happened here, and, if such it to appear. In all such cases the weight result follows, it must be regarded as the of authority is that the instrument will be consequence of his own imprudence. In ac- held to be valid to the extent of the innoknowledging a blank conveyance before an cent party's rights under it, or the rights officer, a grantor in effect declares it to be which he or she would have under it if it a deed, which it is not, so long as its terms were valid. This is founded upon are incomplete. Having purposely put forth the general principle of law often announchis solemn declaration that he has signed the ed by courts, and which has become axioinstrument as a complete deed, when he has matic, 'that, whenever one of two innocent not in fact done so (expecting the custodian persons must suffer loss on account of the to find a purchaser, fill in the blank, and wrongful acts of a third, he who has enabled effect a transfer of title), he is answerable the third person to occasion the loss must for the consequences if another innocently be the person who shall suffer.'

*

*

*

*

It

neither the owner nor the agent had reason to suspect that the deed would be used as it was, and that they owed no duty to any one to see that it was not so used, and therefore could not have been negligent in that respect. An instrument in the form of an executed deed, save that no grantee is named, has in one sense no legal effect. But as it is manifestly adapted to the use to which it is often put-to enable the holder to accomplish a transfer-it would seem to be within the reason of this language, used of a nonnegotiable certificate of indebtedness assigned in blank: "If the owner of the instrument intrusts it to another, he does so charged with notice of the power to deceive which he is putting into that other's hands, and, if deception follows, he must bear the burden. * 串 * It cannot be said that the owner is free from all obligation to contemplate the possibility of wrongdoing by a third person.” Scollans V. Rollins, 179 Mass. 346, 353, 60 N. E. 983, 984 (88 Am. St. Rep. 386). The Dunn-Westlake Case, however, differs from the one at bar, in that the actual perpetrator of the fraud had not been intrusted with the delivery of the deed, but had obtained possession of it under the pretense of desiring it for a temporary purpose; his attitude being much the same as though he had taken it surreptitiously.

In such a case the maker would be estopped from claiming that the instrument was void as against the innocent bona fide holder. There may be some authorities that hold a contrary doctrine; but, if so, we do not choose to follow them." Stone v. French, 37 Kan. 145, 151, 14 Pac. 530, 533 (1 Am. St. Rep. 237), is cited in support of the plaintiff's contention, but we think it wholly consistent with the views already expressed. There a deed signed and acknowledged, but not delivered during the life of the grantor, after his death reached the hands of the grantee, and was recorded. It was held that one purchasing upon the faith of the record acquired no rights, upon the ground that the owners of the land (the heirs of the person named as grantor), not having been in any way negligent, could not be deprived of their property by the acts of a person for While for the reasons indicated the judgwhose conduct they were in no way respon- ment must be reversed, it does not follow sible. In the opinion it was said: "A deed that the plaintiff should be denied all renot delivered, but wrongfully in the hands lief. Riffie paid only $800 for the conveyof the apparent grantee, without fault or ance from the Osage Company. There was negligence on the part of the owner of the a mortgage upon the land, but he did not land, is unlike a deed not delivered, but become personally responsible for its paywhich, through the fault or negligence of ment. He appears to have executed a deed the owner, has been permitted to get into to the property, but, as this was after the the hands of the apparent grantee." In commencement of the action, it cannot affect Wiggenhorn v. Daniels, 149 Mo. 160, 50 S. the result. Guthrie would be entitled to have W. 807, a landowner executed a deed in the title quieted in himself except for the blank, which was wrongfully filled in and fact that Riffie has suffered loss through recorded. He was allowed to prevail against his negligence and misplaced confidence. one who claimed to be an innocent purchas- The extent to which Guthrie's right is thus er on the faith of the deed. There, how-qualified is measured by the amount of the ever, the defeated claimant had no title in loss. The principle upon which Riffie is prothe deed referred to; a purported conveyance tected does not require that he shall enjoy from him turning out to be a forgery. In the full fruits of his bargain with the Osage Westlake v. Dunn, 184 Mass. 260, 68 N. E. Company-merely that he shall be saved 212, 100 Am. St. Rep. 557, the owner left a from actual loss. This result will be acblank deed with an agent to deliver upon complished if he is paid $800 and interest. the payment of the purchase money. A pro- Guthrie should have an opportunity to make posed buyer obtained the deed from the that payment, and thereupon to have his agent by representing that he wanted to title quieted. If he elects not to do so, or show it to a friend who was to furnish a part fails to do so within a time to be fixed by of the price, and that he would return it the trial court, judgment should be renderin a few moments. Instead of doing so, ed for Riffie. he filled in his own name and raised money The judgment is reversed and the cause upon a mortgage. The court held that the remanded for proceedings in accordance mortgagee could not recover, saying that herewith. All the Justices concurring.

(85 Kan. 117)

LEWELLEN v. KANSAS NATURAL

GAS CO.

about nine hundred feet from the dwelling house, and about a quarter of a mile from any road or highway leading from the house, but within two or three feet of the nearest path frequently traveled by the boy Oval. It appears that on the 27th day of February, 1. TRIAL (§ 359*)-SPECIAL QUESTIONS-IN-1909, the boy began to play with the wrench,

(Supreme Court of Kansas. June 10, 1911.)

(Syllabus by the Court.)

CONSISTENCY WITH GENERAL VERDICT. Answers to special questions are not a sufficient basis for a judgment non obstante unless they are clearly inconsistent with the general [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 857-860; Dec. Dig. § 359.*] 2. DEATH (§ 105*)-VERDICT.

verdict.

In order to separate water and other foreign substances from natural gas flowing through its pipe, a company maintained a drip pipe in connection with which was a valve and also a perpendicular pipe about two feet high into which gas from the conveying pipe could be released by a valve turned by a wrench. A boy nine years old, playing with the appliance -the wrench having been left on the core of the valve turned the valve, and the force of the released gas instantly killed him. The father, who recovered damages for the death, was found to have known that escaping gas was dangerous to persons inhaling the same, and to have known the use of the pipes and appliances. Held, that such findings are not sufficiently inconsistent with the general verdict to warrant a judgment non obstante.

[Ed. Note.-For other cases, see Death, Dec. Dig. 105.*]

Appeal from District Court, Montgomery County.

Action by J. E. Lewellen against the Kansas Natural Gas Company. Judgment for plaintiff, and defendant appeals. Affirmed. John J. Jones and Eugene Mackey, for appellant. P. C. Young, for appellee.

and thereby turned on the gas, which came through the vertical pipe with such force that it instantly killed him. There is no claim that he was asphyxiated, but the fact appears to be that he was killed by the mere force of the escaping gas.

The court gave very full instructions, including the following: "It is contended by the defendant company that the plaintiff was guilty of contributory negligence on his part; and in this connection you are instructed that it is also the duty of the plaintiff to exercise ordinary care to protect himself and family from any and all dangerous agencies upon the farm which were known to him, or which in the exercise of ordinary care could have been known by him. If he knew, or in the exercise of ordinary care could have known, that the arrangement of blowpipe and wrench as maintained upon the land by the defendant company was dangerous, it was his duty to caution his family, especially his children, against the danger, and to do that which an ordinary prudent person would do under the same or similar circumstances to protect them from danger, and a failure to exercise such care would be contributory negligence on his part, and that would preclude a recovery in this case. The plaintiff's duty, like that of the defendant, was to exercise ordinary care, and this is to be measured by the danger to be apprehended, and is therefore controlled by the surrounding circumstances."

Among the answers to special questions returned by the jury were the following:

"(19) Was the gas well on the premises in question, including valve and wrench, in the same condition that other persons or companies in like business left wells and drip pipes of like character? A. No."

"(22) Did the plaintiff at the time of the injury know or by exercise of ordinary care should have known the use of these pipes and appliances at and near the gas well on. the premises in question? A. Yes.”

WEST, J. J. E. Lewellen sued the Kansas Natural Gas Company to recover damages for the death of his nine year old son Oval, who was alleged to have been instantly killed by the force of natural gas suddenly released from a certain drip pipe left exposed by the company. The jury returned a verdict in favor of the plaintiff for $1,087, and answered a number of questions on which answers the gas company moved for judgment notwithstanding the verdict. The motion was denied, and the company appeals, assigning this ruling as the sole error. The company had an oil and gas mining lease upon certain farming land on which a gas well was located, and a pipe through which large quantities of natural gas flowed at high pressure. In order to separate water and other foreign substances from the natural gas, the company had on the land a drip pipe with which was connected a valve, and a perpendicular pipe about two feet in height. By turning the valve, the natural gas would be released through the perpendicular pipe, and a wrench used for this purpose was left upon the core of the valve. Some time before the injury, Lewellen leased the land in question for agricultural purposes, the drip pipe being *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

"(24) Did the plaintiff at any time warn or instruct his son Oval Lewellen not to go upon the premises where the gas well in question was located? A. No."

"(27) Did the plaintiff know at the time of the injuries complained of that escaping gas was dangerous to persons inhaling the same? A. Yes."

"(32) Did the plaintiff know that his son Oval Lewellen had been in the habit of playing in and about the gas well in question? A. No."

"(34) Was the defendant company or any

of its officers or agents guilty of any acts of | sumption will be indulged in favor of the negligence, which was the proximate cause general verdict." Morrow v. Bonebrake, 84 of the injury to the deceased, Oval Lewellen? Kan. 724, 115 Pac. 585, Syl. par. 3. A. Yes." The judgment is affirmed. All the Justices concurring.

"(35) If you answer question No. 34 'Yes,' or in the affirmative, then state fully of what such negligence consisted? A. Leaving wrench on valve."

(85 Kan. 67)

EDWARDS v. BRINKERHOFF. (Supreme Court of Kansas. June 10, 1911.) (Syllabus by the Court.)

FRAUDS, STATUTE OF (§ 129*)-ORAL CONTRACT-VALIDITY.

Under the pleadings and evidence in this case, the statute of frauds (section 3838, Gen. St. 1909) has no application.

It is contended by the gas company that these questions show contributory negligence on the part of the plaintiff because he is thereby shown to have known of the injuri-1. ous and dangerous qualities of the gas and the use of the pipes and appliances, and did not instruct or warn his son against going near the well or upon the land necessarily used and occupied by the gas company in the exercise of its rights under its lease, but permitted his son to go thereon, where as a result of the latter's own act the injury occurred.

[2] It will be observed that the attention of the jury was by the instructions called to the question whether or not the plaintiff knew, or should have known, that the arrangement of the pipe and wrench was dangerous, but the question submitted to the jury was whether or not he knew or should have known the use of the pipes and appliances at and near the gas well on the premises, and whether or not he knew that escaping gas was dangerous to persons inhaling the same. All that can be accurately determined from the answers to the special questions is that the plaintiff knew, or might have known, the use of the pipes and appliances, and that it was dangerous to inhale escaping gas. The findings do not show that the father had knowledge of his son's proneness to play about the drip pipe in question, or that he had any knowledge whatever of the pressure, or that upon turning the valve by means of the wrench left thereon the force would be sufficient to cause instantaneous death. The question of inhaling gas is not in the case, and, while the knowledge of the use of the pipes and appliances might be said to mean a knowledge of the purposes for which they were placed upon the land and a knowledge of the manner in which they were used, it does not imply a knowledge of the amount of pressure, or of the danger incident to turning the valve.

[1] The general verdict of necessity means that, upon the whole case, the jury believed the plaintiff entitled to recover, and, unless the special findings are absolutely irreconcilable with the verdict or in direct conflict therewith, it must stand. The general verdict must stand unless the findings compel contrary action. Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289. "Where a question of inconsistency arises between findings made in answer to special questions and a general verdict, nothing will be presumed in aid of special findings, while every reasonable pre

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292; Dec. Dig. 129.*]

2. APPEAL AND ERROR (§ 171*) — REVIEW PLEADINGS.

Where a fact essential to the cause of action is not alleged in the petition, but is alleged in the reply as occurring after the filing of without objection, as if the reply had been filed the petition, and the trial is proceeded with, by leave of court as a supplemental amendment to the petition, it will be so regarded here.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1053-1069, 1161-1165; Dec. Dig. § 171.*]

Appeal from District Court, Greenwood County.

Action by S. R. Edwards against H. L. Brinkerhoff. Judgment for plaintiff, and defendant appeals.

Affirmed.

Howard J. Hodgson, for appellant. D. B. Fuller, Hugh Farrelly, and T. R. Evans, for appellee.

SMITH, J. This action was brought by Edwards against Brinkerhoff for an accounting of the profits of a single transaction in an alleged partnership deal. All of their partnership transactions, except one, had been mutually settled. In his petition the plaintiff alleges that the defendant and he jointly with A. B. Stanhope and Ira P. Nye bought and finally sold a large tract of land upon which they pastured cattle, on which there was a net profit amounting to about $18,000; "that, so far as this plaintiff knows, there has been no full or final settlement between any of the parties, but that it has been found and ascertained that the net profits arising from the business of this pasture company, or ranch, amounts to about $18,000; that one-sixth of the profits arising from the business of said ranch is the property of this plaintiff;" that the defendant has refused to account to him for a share of the profits, and he prays for an accounting and for judgment for the amount which may be found due to him. The defendant, after making various objections to the petition for defect of parties plaintiff and defendant and misjoinder of causes of action, alleged that the petition did not state facts sufficient to constitute a cause of action, and made a