duress.

[Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 254-266; Dec. Dig. § 82.*] 2. PAYMENT (§ 87*)-COUNTIES (§ 216*)-RECOVERY-DISAFFIRMANCE-TIME.

held, that the payment of the balance claimed whether or not he is indebted to said county, was in effect a payment of the whole amount, and if so in what amount; and he, the said and, having been made in response to a demand Thomas T. Kelly, hereby agrees to accept the based upon a claim of right, could be recovered only upon proof of mistake of fact, fraud, or findings of said board as to said amount, if any, and as a guaranty of his good faith, does hereby deposit with said board the sum of one thousand dollars, out of which sum the board is to retain for said county the amount, if any, which may be found to be due to said county from said Thomas T. Kelly, all questions relating to any statute of limitation of the state of Kansas being hereby waived. Witness my hand at Paola, Kansas, this 11th day of April, 1902. T. T. Kelly."

Neither fraud nor mistake of fact was shown, and whatever duress existed was in consequence of the plaintiff's candidacy, and ceased with the election; and, even if originally an action might have been brought for a recovery of the money, it was incumbent upon the plaintiff to disaffirm the payment with reasonable promptness, and the limit of a voluntary delay may be fixed at two years, by analogy with the statute requiring claims against a county to be presented within that period.

[Ed. Note. For other cases, see Payment, Dec. Dig. § 87;* Counties, Dec. Dig. § 216.*] 3. LIMITATION OF ACTIONS (§ 28*)-RECOVERY OF PAYMENT-IMPLIED CONTRACT-LIMITATION APPLICABLE.

Whatever right of action the plaintiff had was based upon the county's implied contract to restore the money, and the three-year statute of limitation applied to it.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135; Dec. Dig. § 28.*]

(Additional Syllabus by Editorial Staff.) 4. APPEAL AND ERROR (§ 1022*)—QUESTIONS OF FACT-FINDINGS OF REFEREE-CONCLUSIVENESS.

A finding by referee on evidence given orally before him and approved by the trial court is not open to review on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. 8 1022.*]

The order of the board accepting the offer: "It is hereby ordered by the board of county commissioners of Miami county, Kansas, that the one thousand dollars this day tendered to the board by Thos. T. Kelly be received to be applied as per written statement of the said Thos. T. Kelly therewith submitted and. filed. And it is further ordered that the board make an investigation and examination of the accounts of said Thos. T. Kelly, and that said board meet to make said investigation on call of chairman."

The report of the commissioners, made May 15, 1902: "Whereas, pursuant to said order, the said board of county commissioners of Miami county, Kansas, met in the city of Paola, on the 4th day of May, 1902, and did, with the assistance of the county clerk and county attorney, make a thorough and careful investigation of all matters taining to the office of county clerk of said

per

Appeal from District Court, Leavenworth county, using in said investigation the recCounty.

Action by Thomas T. Kelly against the Board of Commissioners of Miami County. Judgment for plaintiff, and defendant appeals. Judgment reversed, with instructions to enter judgment for defendant.

In the opinion, for the sake of brevity and clearness, the effect is stated of several documents and matters of record, which are not set out in full, nor quoted from with literal exactness. In order that the statement may be complete, their precise language is here given.

The original offer made by the plaintiff to the commissioners: "Whereas, it is persistently charged to the great injury of the undersigned, Thomas T. Kelly, who is a candidate for the nomination for State Treasurer, that while the said Thomas T. Kelly was county clerk of Miami county, Kansas, irregularities occurred that occasioned loss of money to said county: Now on this 11th day of April, A. D. 1902, personally appeared before the said board of county commissioners of said county the said Thomas T. Kelly and requests that said board make an investigation as to the condition of his accounts as such county clerk, and determine

ords of said office, the records of the county treasurer of said county, the records of the banks of said city so far as obtainable, verbal statements when the same could be obtained, and the reports of two experts who have recently examined the records of the office of said county clerk; and after such careful and thorough examination, the members of the board of county commissioners of Miami county, Kansas, unanimously find as follows: That the irregularities which have occurred during the administration of Thos. T. Kelly, as county clerk of Miami county, Kansas, amount in the aggregate to $1,324.99, and that a portion of said irregularities have been caused by said Thos. T. Kelly's lack of experience. And because of said irregularities the said Thos. T. Kelly is indebted to Miami county, Kansas, in the sum of $1,324.99."

The order of the commissioners, providing for an itemized statement supplemental to the report, which they filed June 7, 1902: "It is hereby ordered that the board proceed to make an itemized statement of the items which together make the sum of $1,324.99, which the board found to be due to Miami county on account of the irregulari

ties of Thomas T. Kelly while acting as coun- July 8, 1907, he began action against the ty clerk of said county."

county to recover the $1,324.99. A referee reported in his favor, and a judgment was rendered accordingly, from which the county appeals.

The order made July 14, 1902, regarding a further investigation: "It is hereby ordered by the board of commissioners of Miami county, Kansas, that said board proceed to [4] The report of the referee is for the examine the accounts and proceedings of all most part devoted to the question whether county officers of said county beginning Oct. the plaintiff had in fact been indebted to 1st, 1888, and from said date to October 1st, the county. It includes a finding that the 1900, and that the result of said examination | evidence "does not show the wrongful payshall be spread upon the commissioners' ment of any sum to plaintiff, and does not journal. Said investigation to begin at such time in August, 1902, as may be hereafter agreed upon."

The introduction and the conclusion of the report filed by the commissioners October 14, 1902: "January session, 1890. At this session of the board Thos. T. Kelly became county clerk, and the errors and irregularities noted below do not include the errors and irregularities heretofore reported upon by us in a former investigation. This report of the administration of Thos. T. Kelly as county clerk does not include the irregularities of his office as shown by us in a former report, whereby he was found to be indebted to, and paid back to Miami county, the sum of $1,324.99."

* *

show that he ever at any time obtained any money unlawfully from the county." This finding is complained of, but it was. made by the referee upon a mass of evidence, a part of which was oral, and, having been approved by the trial court, is not open to review here. Complaint is also made of the rejection of certain evidence, but it is at least doubtful whether a sufficient foundation was laid to make that rul*ing reviewable. The present inquiry is therefore limited to the question whether, irrespective of the merits of the original controversy, the plaintiff could maintain his The defendant asserts: (1) That. action. if the commissioners' acceptance of the plaintiff's offer constituted a valid contract, their finding was conclusive, unless they acted in bad faith, which was not the case; (2) that the amount sued for was paid voluntarily, and therefore cannot be recovered; and (3) that the claim is barred by the failure to present it to the county board for allowance within two years (Gen. Stat. 1909, § 2123), and by the three-year statute of limiGen. Stat. 1909, § 5610, subd. 2 tations. (Code Civ. Proc. § 17).

Testimony of the plaintiff regarding the payment of the $324.99: "Q. Then you delivered that draft to Mr. Simpson, to be delivered to the board of county commissioners, in payment of this $324.99 they claimed against you? A. Yes, sir. Q. Delivered it for that purpose? A. Yes, sir. Q. And to make payment of that sum? A. Yes, sir. * Q. Why did you pay them that $324.99? A. I had agreed to pay it under the contract."

* *

Thomas H. Kingsley and J. D. Snoddy, for appellant. Chas. D. Smith, L. S. Harvey, and A. E. Dempsey, for appellee.

MASON, J. (after stating the facts as above). In 1902 T. T. Kelly was a candidate for State Treasurer. Charges were made that he had been guilty of misconduct while county clerk from 1890 to 1894, which had resulted in losses to the county. On February 15, 1902, the board of county commissioners made an investigation of the matter, and filed a report in effect sustaining the charges against him. On April 11, 1902, he presented to the board a written proposal, asking them to make an investigation and determine whether he was indebted to the county, and if so in what amount, and agreeing to accept their findings. At the same time he deposited $1,000 with them to cover any amount for which they might find him liable. The commissioners accepted the proposal, made an investigation, and prepared a written report to the effect that he was indebted to the county in the sum of $1,324.99, which they filed on May 15, 1902. On that day they notified him of the finding, and requested him to pay the balance of $324.99. On July 7, 1902, he paid that amount.

If the proposal made to the commissioners and accepted and acted upon by them amounted to a contract for the settlement of the controversy, their decision, if made in good faith, was final and binding. The fact that the investigators were representatives of one of the parties would not affect the matter. An officer of a municipality is often made the arbitrator of its disputes with its contractors, and his decisions are as conclusive as though he were disinterested. 23 L. R. A. (N. S.) 317, note. The referee found that the investigation made by the commissioners was "not thoroughly made in accordance with the spirit and intent of the agreement." This can hardly be regarded as a finding of bad faith, and seems rather to suggest error through want of sufficient information. It will not be necessary, however, to pass upon this feature of the matter, as a similar question, relieved of some of the difficulties of this one, arises upon the consideration of the next contention.

[1] The theory is advanced in behalf of the plaintiff that the $324.99, like the $1,000, was merely deposited with the commissioners as security for the payment of whatever sum might be found due upon some final inOnvestigation to be made later. But the es

*

The law is well settled that a payment, made in response to a claim asserted as a matter of right, is placed upon the same footing as an accord and satisfaction or a compromise and settlement, and can be recovered only upon proof of fraud, duress, or mistake of fact. 22 A. & E. Encycl. of L. 609-630; 30 Cyc. 1298-1319; Barbour's Law of Payment, c. 18; 94 Am. St. Rep. 408, note; County of Wabaunsee v. Walker, 8 Kan. 431; K. P. Ry. Co. v. Com'rs of Wyandotte County, 16 Kan. 587; Cummings v. Sigerson, 63 Kan. 340, 343, 65 Pac. 639, 640.

In the last case cited it was said of one who sought to recover a payment voluntarily made: "The law does not give him the right to pay a demand for which he knows he is not legally liable, and then give him a right of action to recover his payment back."

tablished facts do not bear out that theory. | made by law," and they are held to have The decision of the commissioners, made the power to compromise and settle doubton May 15, 1902, purported to be final. On ful claims. Com'rs of Labette County v. ElJune 5, 1902, they made an order for the liott, 27 Kan. 606. The demand for payapplication of the $1,000 to the claimed ment was made by them on behalf of the indebtedness, and it was accordingly at that county, and, although the amount passed time transferred to the treasurer for the use through their hands, it was in effect paid and benefit of the county. Two days later by the plaintiff to the county. they filed a statement, which was spread upon the journal, setting out the items upon which their finding was based, and giving a summary of each transaction involved. On July 14, 1902, an order was made that the - board proceed in August to examine the accounts of all county officers for the period between 1888 and 1900; and on October 14, 1902, a report was filed regarding a number of "errors and irregularities," but this does not appear to have been made the basis of any claim against the plaintiff, and expressly stated that it did not include "the irregularities of his office as shown in a former report, whereby he was found to be indebted to, and paid back to Miami county, the sum of $1,324.99." The plaintiff testified that on May 15th the commissioners, after they had finished the investigation, notified him to come in and pay the $324.99; that he gave them a draft for that sum in payment of the amount they claimed against him, because he had agreed to do so under the contract. The referee found that he paid it upon demand of the commissioners, in compliance with the terms of his agreement. He paid it directly to the chair-privilege is left to him of selecting his own man, who on the same day turned it over to the county treasurer. It is clear that the commissioners treated the report of May 15th as their final decision of the matter submitted to them, and that their subsequent inquiry was not intended as a re-examination of it. There was no agreement for a reopening of the inquiry. Under these cirThe plaintiff testified that while the incumstances, the act of the plaintiff in re-vestigation was in progress he told the sponding to the call for the additional $324.99 was a recognition of the appropriation of the $1,000 to the claim against him, and amounted to the payment of the entire sum of $1,324.99 in compliance with a demand made upon him under a claim of right.

The argument is presented that the plaintiff was dealing with the commissioners as such, and not with the county, that the board had no authority to accept money for the county, and that what they did was to hold the fund as a deposit pending a settlement of the controversy between the plaintiff, on the one hand, and the county, on the other. The commissioners were clearly acting as the representatives of the county, and were obviously so dealt with by the plaintiff. In so doing they were within the scope of their authority, as the statute (Gen. Stat. 1868, c. 25, § 16; Gen. Stat. 1909, § 2075, subdiv. 5) empowers them "to represent the county and have the management of the business and concerns of the county,

In the note from the American State Reports, just cited, the reason for the rule is thus stated: "If one would resist an unjust or illegal demand for payment, he should do so at the threshold. If litigation is intended by the party making payment, it should precede payment. Otherwise the

time and convenience for litigation, delaying it, as the case may be, until the evidence on which his adversary would have relied to sustain his claim may be lost by the lapse of time and the many casualties to which human affairs are exposed." 94 Am. St. Rep. notes 408, 410.

chairman he wished to come before the board; that the reply given was that he would be notified when they were ready for him; and that he was not sent for until after the decision had been made. This evidence tends to impeach the fairness of the investigation, but not to show any fraud practiced upon the plaintiff to induce him to pay the amount found against him. Whatever injustice characterized either the methods or the results of the investigation were known to him, and his course in electing to make the payment was taken with full knowledge of the facts. He paid the sum demanded, not because he was deceived into believing that he had caused a loss of that amount to the county, but because of his agreement to be governed by the finding made. His action therefore was not influenced either by fraud or by mistake of fact.

[2] The petition was not framed upon the theory that the payment was made under

A reversal is ordered, with directions to render judgment for the defendant. All the Justices concurring.

(85 Kan. 175)

STATE v. REILLY. (Supreme Court of Kansas. June 10, 1911.) (Syllabus by the Court.)

RE

1. CRIMINAL LAW (8_1122*) — APPEAL
VIEW-FAILURE TO GIVE INSTRUCTIONS.
Where an appellant relies upon an alleged
error of the court in refusing to give a particu
lar instruction, and only the one instruction is
presented to this court for consideration, error
such instruction, especially where it is claimed
will not be predicated upon the refusal to give
by the appellee that the substance of the in-
struction was, in fact, given in other instruc-
tions.

suggested in a supplemental brief that as | Cyc. 866; 15 A. & E. Encycl. of L. 1101. The there is evidence to support such a view three-year statute therefore applies. Burthis court should pass upon that aspect of rows v. Johntz, 57 Kan. 778, 782, 48 Pac. the case. It may well be contended that the 27. plaintiff's candidacy for a state office placed him in a position where he had just grounds for believing that a refusal to acquiesce in the demand for payment would expose him to a greater injury than the loss of the money. The restraint he was under in this respect is not of the same character as that discussed in any cases to which our attention has been directed, but the modern tendency is to recognize what is termed moral duress, wherever "the payment has been ob. tained by taking an undue advantage of the situation of the payer." 30 Cyc. 1305; 22 A. & E. Encycl. of L. 613; 2 Am. & Eng. Ann. Cas. 825, note; 2 L. R. A. (N. S.) 574, note. If, however, the payment may justly be regarded as having been made under compulsion, this is only because of the plaintiff's candidacy for office, coupled with the nearness of the election. With the close of the polls in November, 1902, his situation was entirely changed. A controversy with the county commissioners could no longer place him at any peculiar disadvantage. It was then incumbent upon him to act with promptness and to disaffirm the payment within a reasonable time. Whether or not the statute (Gen. Stat. 1868, c. 25, § 47; Gen. Stat. 1909, § 2123) requiring claims against a county to be presented within two years is fully applicable, as in a somewhat similar situation, has been said to be probable (Richards v. County of Wyandotte, 28 Kan. 326; Rork v. Com'rs of Douglas County, 46 Kan. 175, 26 Pac. 391), it furnishes by analogy a limit within which some step must have been taken to reclaim the money. We think the inaction of the plaintiff for that period amounted to a final acquiescence in the existing conditions, and that thereafter no action could be maintained to recover the payment.

Law, Cent. Dig. § 2943; Dec. Dig. § 1122.*]
[Ed. Note.-For other cases, see Criminal

(Additional Syllabus by Editorial Staff.)
2. CRIMINAL LAW (§ 308*)—"PRESUMPTION OF
INNOCENCE.'

inference based on the fact that the majority of The "presumption of innocence" is a legal men are not criminals, and is without evidence to support it.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*

For other definitions, see Words and Phrases, vol. 6, p. 5539.]

3. CRIMINAL LAW (§ 308*)—"EVIDENCE OF IN

NOCENCE."

"Evidence of innocence" consists in the proof of facts from which the inference of innocence is drawn (citing 3 Words & Phrases, 2522, 2523).

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 308.*]

Appeal from District Court, Pottawatomie County.

James Reilly was convicted of assault, and appeals. Affirmed.

Crane & Woodburn Bros., for appellant. John S. Dawson, Atty. Gen., E. M. Brunner, and Frank Challis, for the State.

SMITH, J. This is an assault and battery case. The defendant was produced as a witness in his own behalf, and testified. The jury returned a verdict of guilty, which was approved by the court, and he was sentenced. He appeals.

[3] In any event we must conclude that the plaintiff's action is barred by the statute of limitations. He contends that it is founded upon a written contract and could not be barred inside of five years, and also that the fund was held in trust, and that the statute of limitations was not at once set in operation. These contentions turn upon the question already considered, whether the final $324.99 was intended and treated by the parties as a deposit or as a pay- Two assignments of error only are urged ment, and consequently whether or not the in defendant's brief. The first is the allow$1,000 deposit was converted into a payment. ance, on cross-examination of the defendant, Inasmuch as we hold, upon the grounds al- of questions relating to physical encounters ready stated, that the entire sum must be of the defendant with other persons. This regarded as a payment, and not as a de evidence is evidently offered for the purposit, it follows that whatever right he had pose of discrediting the defendant as a witto its recovery grew out of the legal obliga-ness, and the practice is approved in State tion to restore it, and his remedy was upon v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. the county's implied contract to do so. 27 Probasco, 46 Kan. 310, 26 Pac. 749; State

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes 116 P.-31

v. Wells, 54 Kan. 161, 37 Pac. 1005; State | fendant upon appeal to show that prejudicial v. Park, 57 Kan. 431, 46 Pac. 713; State v. error was committed against him. The inGreenburg, 59 Kan. 404, 53 Pac. 61. It is struction asked may have been refused betrue that entirely distinct and unassociated cause it had, in substance, already been givcrimes which tend to discredit and prejudice en. Even if this instruction be regarded as the jury against a defendant cannot be in- a correct statement of the law, we cannot troduced in evidence, especially where he say, without being informed as to the other does not offer himself as a witness in the instructions, that it was error for the court case. State v. Kirby, 62 Kan. 436, 63 Pac. to refuse it. 752. We think there was no substantial error in this respect.

[1] The second contention is that the court erred in refusing to give an instruction which reads as follows: "The presumption of innocence which the law guarantees to the defendant should be considered by you as evidence in his favor." Language similar to this has been approved in Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481. The proposition is discussed in State v. Wolfley, 75 Kan. 406, 415, 89 Pac. 1046, 93 Pac. 337. The usual form of instruction in this regard is that the defendant is to be presumed innocent of the crime, and of every ingredient thereof, until his guilt is established by the evidence beyond a reasonable doubt. It is true that the presumption of innocence in a criminal action has the effect of evidence, in that it rebuts the evidence of guilt up to the point that the latter, notwithstanding the presumption, convinces the jury beyond a reasonable doubt of the truth of the charge; but, yet, it is only a presumption, and not evidence.

[2, 3] Evidence of innocence consists in the proof of facts from which the inference of innocence is drawn. The presumption is a legal inference based on the patent fact that the great majority of men are not criminals; it is a shield which the law, in abhorrence of the conviction of the innocent, throws around every citizen. It is a legal inference or presumption without evidence to support it. The law says to all, the guilty and innocent alike: "You may, by accident or design, be surrounded by circumstances which are consistent with and indicate your guilt, but you shall not be convicted of crime until a jury of your peers are satisfied by competent evidence beyond a reasonable doubt that you are guilty as charged." Nothing is gained by giving to the presumption of innocence a new name, especially one to which it is not entitled. The usual instruction as to the presumption of innocence meets every purpose of the law and regards every right of the defendant. 3 Words & Phrases, 2522, 2523.

The appellant has not set forth in his abstract the instructions that were given, and it is contended by the state that the instruction asked for was practically embodied in instructions numbered 2 and 3 given by the court. If this be true, the refusal of the instruction asked by the defendant cannot be substantial error. It devolves upon the de

The judgment is affirmed.

JOHNSTON, C. J., and BURCH, PORTER, BENSON, and WEST, JJ., concurring. MASON, J., concurring specially.

MASON, J. I fully concur in the opinion, but desire to add this: In State v. Wolfley, 75 Kan. 406, 413, 89 Pac. 1046, 93 Pac. 337, it was decided that no error was there committed in refusing an instruction to the effect that the presumption of innocence amounts to something more than a requirement that the state must prove its case beyond a reasonable doubt. In the opinion language was used indicating acquiescence in the view elaborated in Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481, that such difference exists. The distinction is at best one in the use of words, of little or no practical value, and it appears to have been limited, if not abandoned, by the federal Supreme Court. Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021. See note by Professor Wigmore, in Illinois Law Review, vol. 6, No. 1 (May, 1911) p. 68.

(85 Kan. 6)

TURNER v. ATCHISON, T. & S. F. RY. CO.
(Supreme Court of Kansas. June 10, 1911.)

(Syllabus by the Court.)
MASTER AND SERVANT (§ 288*)-INJURY TO
SERVANT-KNOWLEDGE OF DANGER-QUES-
TION FOR JURY.

Whether a railroad employé, who is inexperienced in the work of placing a dead engine on a round table by means of a push pole kicked by a live engine on a converging track, and is crushed between the two engines while holding preciated the dangers of his situation and stepthe pole in position, should have known and apped back so as to avoid the injury, is held, under the circumstances of this case, to be a question of fact for the jury, and not one of law for the court.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*]