"The city of Newton had authority and control over its public streets and alleys within its corporate limits, but it was its duty to exercise such authority and control for the good of the general public; and the city would have no right to allow unnecessary obstructions in such streets and alleys merely for private purposes, or for the accommodation of private individuals; and it was the duty of the proper authorities of the city of Newton, under the laws of the land to use ordinary care and precaution to keep its streets and alleys in a reasonably safe condition for use in the ordinary and usual mode, by persons lawfully traveling and passing therein."

"In determining the question of the liability of the city of Newton to the plaintiff in this case, you are instructed that the mere fact that the obstruction in question which is alleged to have caused the injury to the plaintiff was placed in the alley by J. J. Norton, and was not placed there by the city, would not relieve the city of the duty of requiring its removal, if it was a menace to the safety of travelers and an obstruction to traveling along the paved, improved part of said alley. It was the duty of the city, under the law of this state, to use reasonable care to keep the public alleys in reasonably safe condition for ordinary travel in the usual mode, and it was also the duty of the city to remove, or require the removal of, unnecessary obstructions to travel placed in the improved and paved part of the public streets or alleys by private individuals and the city would be liable to the person, injured while using the paved and improved part of the public alley or street in the usual manner and without fault on their part, caused by an unnecessary obstruction placed in the paved and improved part of the alley or street by a private individual, and knowingly allowed to remain there by the city, after it had had an ample opportunity to learn of and remove the obstruction from the street; and when we use the word 'public street or alley' we mean every part of the street or alley that is improved and paved, including every part, from side to side, of the paved, used, and improved street or alley."

tion, or that it was a patent and dangerous obstruction, and had continued so long that notice might reasonably be inferred, or that the defect was one which, with reasonable and proper care, should have been ascertained and remedied. The mere existence of an obstruction in an alley does not render the city liable, but the negligence of the city arises only when the city fails to remove the dangerous obstruction within a reasonable time after having notice thereof, and the notice may be either actual notice or notice inferred, as above stated in this instruction."

No instruction was requested that the city would be liable for an injury caused by the stone, even if the city did not know that the stone was dangerous to those passing by it. Apparently the petition was drawn, evidence was introduced, instructions were requested by the plaintiff, instructions were given oy the court, and questions were submitted to the jury on the theory that the plaintiff must establish that the city had knowledge of the dangerous condition of the stone before he could recover. On that theory the verdict and findings of the jury were against the plaintiff, and he cannot recover. The plaintiff is concluded by the manner in which he presented his cause to the trial court. Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612; Stewart v. Murphy, 95 Kan. 421, 422, 148 Pac. 609, Ann. Cas. 1917C, 612; Watson v. Watson, 104 Kan. 578, 581, 180 Pac. 242, 182 Pac. 643; Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 490, 188 Pac. 248.

[2] 2. It is insisted that the court committed error in not giving the instructions requested by the plaintiff. An examination of those given reveals that the substance of those requested was given by the court, and therefore the plaintiff has no cause for complaint concerning the refusal of the court to give the instructions requested.

The court instructed the jury that

"It is the duty of the defendant city to keep said alley in such a condition that it would be reasonably safe for the public to travel on said alley; that is, that it was the duty of said city to use ordinary care in keeping said alley safe for the use of the public, and the failure to use such ordinary care would be negligence, and if the defendant was negligent in failing to use ordinary care to keep said alley in a reasonably safe condition, and had notice, as notice is herein defined, then the defendant would be liable for any injuries to the plaintiff of which such negligence of the defendant was the proximate cause, unless you further find that the plaintiff was guilty of contributory negligence as alleged by the defendant." And "that in order to make the defendant city liable for injuries resulting from an obstruction in the public alley, it must appear, either that

trial court or was passed on by the jury. The question is now presented for the purpose of fortifying the contention of the plaintiff concerning the liability of the city on account of the dangerous condition of the stone. The evidence abstracted does not show that express permission was given by the city to the owner of the stone to keep it in the alley. The street commissioner remonstrated with the owner concerning its being in the alley, and the owner insisted that he had no place in which to store it, to which the street commissioner replied, “Keep it inside of the poles." There was a line of telegraph poles along the side of the alley. This does not show express permission or license; it does show that the city knew that the stone was in the alley and permitted or tolerated it to remain there.

The judgment is affirmed.

entitle Osburn to his commission.

v. Harris, 106 Kan. 167, 186 Pac. 987. Gould should have been on hand to dispose of the mortgage feature of the contract himself. It was error for the trial court, on a demurrer to the evidence, to rule as a matter of law that "the final offer" of the Hadleys was to purchase by assumption of the mortgage.

[3] But it seems to us that this is a still simpler case. In his refusal to sell, Gould did not consider the matter of the mortgage as set down in writing by Osburn. He refused to sell solely because he had otherwise and prematurely disposed of the property. That refusal is a matter which concerns him and the Hadleys, not him and his agent. Osburn's right to his commission matured when he produced the Hadleys, who were ready, willing, and able to buy. What Osburn set down in writing as the terms of the sale was not important, since the Hadleys would buy, and preferred to buy, on the | precise terms to which Gould had already agreed. The demurrer to the evidence should have been overruled.

The only question presented touches the sufficiency of the evidence to sustain the judgment, and that matter largely turns on the veracity of the witnesses, who are not before us. We have examined the evidence to support the judgment, not to weigh it, but to ascertain its existence. While defendants claimed that they had paid the full amount due for all the tax receipts issued at their behest, the plaintiff's evidence tended strongly to the contrary; and, since the judgment has substantial though controverted evidence to support it, it will have to stand. Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057; Wideman v. Faivre, 100 Kan. 102, 106, 163 Pac. 619, Ann. Cas. 1918B, 1168.

That the custom of issuing receipts "in bunches" to trusted persons who sent, or who were later to send, their checks there

States currency, was not authorized by law, is no defense to this action. The plea was full payment, and that was the tenor of defendants' evidence. But as the trial court did not believe that evidence, the controversy as to the facts is foreclosed; and this requires an affirmance of the judgment. It is so ordered.

All the Justices concurring.

Demurrer to plaintiff's evidence held properly overruled. The demurrer to the evidence of the plaintiff was properly overruled.

2. Compromise and settlement 6(3)—Note given to avert will contest is based on sufficient consideration.

A note given in settlement of a controversy arising between brothers and sisters over

John A. Hall, of Pleasanton, for appellee.

DAWSON, J. The plaintiff in his official capacity as county treasurer of Linn county issued certain tax receipts to the defendants without receiving the cash therefor. Plain

eficiaries thereunder, but one of whom is threatening to contest the will, is upon sufficient consideration.

the note for the reason that the sister did not take part in the settlement.

4. Compromise and settlement 8 (4)-Facts held to show no mistake as to consideration for note.

In such a settlement, where the brothers arrive at a basis of agreement, and two of those to whom land had been devised fix a valuation on that land and on the land devised to a third brother, who knew the value of all the land, and who thereafter gave his note based on the value fixed by his brothers, there is no mutual mistake as to the valuation.

5. Appeal and error 883-Stipulations 3 -Testimony in another action may be read in evidence by agreement, and cannot be complained of when so read.

Testimony taken on a trial in another action may be read in evidence by agreement, and, when so read, complaint cannot be thereafter made of its admission.

6. Compromise and settlement

21-Refusal of maker of one note to pay cannot defeat recovery on note given by another party to formal settlement.

Where notes are given in the settlement of a family controversy, and afterward one of the makers fails to pay a note thus given by him, such failure cannot be shown for the purpose of defeating a note given by one of the other parties in the settlement.

"(5) On the 3d day of July, 1911, William J. Harris, George Harris, Nathan C. Harris, and Owen Harris met at the old home place for the purpose of attempting to agree on an adjustment of their differences and make an amicable settlement of their father's estate. Each of the boys who received real estate expressed a desire to make a settlement and avoid litigation.

"(6) It was at this meeting that the brothers suggested that the land be sold and the money equally divided among the children. This Owen Harris objected to, and said he would pay as much as Will or Nathan if the terms of the will were carried out.

"(7) The defendant, Owen Harris, refused to make any estimate on the value of the land. He was familiar with the land and knew its value. The land was estimated by William and Nathan at $55 per acre, and on this basis it was concluded that Owen, Nathan, and William should each pay to George and Minnie the sum of $880 each. It was agreed between William J. Harris, and Nathan C. Harris would all of the brothers that the said Owen Harris, each execute a note to Minnie Bottom in the sum of $880, and notes in like amount to George Harris, and that the terms of the will of William Harris, deceased, should be carried out, and that no contest or litigation be had concerning said estate.

"(8) The notes were executed in accordance with the agreement, payable in one year, and it was further agreed that the notes should be held in the Havensville State Bank until they

Action by Minnie Bottom against Owen Harris. Judgment for plaintiff, and defendant appeals. Affirmed.

negotiable instruments, and at maturity the notes were to be delivered to the payees therein.

"(9) The notes were duly executed and delivered to Ira Eddy to be held by the Havensville State Bank until their maturity, and on

the said Ira Eddy to the agent of the plain

MARSHALL, J. The plaintiff recovered a judgment on a promissory note, and the defendant appeals. William Harris died after executing his will giving to each of three of his sons William J. Harris, Nathan C. Harris, and Owen Harris 80 acres of land, and to another son and to a daughter $100 each. The will was probated, its terms were fully complied with, the estate was settled, and the executor discharged. Other facts recited in special findings made by the court were as follows:

There

"(4) On the day the will was admitted to probate it was opened and read by the probate judge of Pottawatomie county, Kan. were present Owen Harris, George Harris, William J. Harris, Nathan C. Harris, and the witnesses to the will. When the will was read, George Harris expressed dissatisfaction with the will and said he would contest the will. It

was also claimed at that time that Owen Harris, the defendant, owed the estate the sum of $400.

paid except the note sued on in this action and the note given by defendant to George Harris. The payments provided for in the will have been made. The note sued on in this action is in words and figures as follows: '$880.

44 46

Havensville, Kan., July 3, 1911. "One year after date we promise to pay to the order of Minnie Bottom at the Havensville State Bank, Havensville, Kan., eight hundred eighty and no/100 dollars, with interest per annum from date until paid, if Value received. not paid at maturity.

at

We,

that the plaintiff is entitled to recover the sum of $880, with interest at 6 per cent. per annum from July 3, 1912."

The defendant refused to pay the note given by him to the plaintiff, and this action

resulted.

[1] 1. The defendant complains of the overruling of his demurrer to the evidence of the plaintiff, and argues that there was no evidence to show a delivery of the note to the plaintiff. The findings of fact show that, when the note was placed in the bank, it passed beyond the control of the defendant. It then became the property of the plaintiff, and was afterward delivered to her agent. These facts were stated in the eighth and ninth paragraphs of the findings of the court which were supported by evidence. The demurrer was properly overruled.

[2] 2. Another contention of the defendant is that there was no consideration for the note; that the note was merely an executory contract evidencing a promise by the defendant to give to the plaintiff as a gift the sum of $880. To ascertain the consideration for the note, we again refer to the findings of fact which show that there was a will, dissatisfaction with its provisions, a threatened contest, and a compromise and settlement of the differences between the members of the family interested in the will. Settlements of controversies of this character are favored by the law. Marsant v. Marsant, 60 Kan. 859, opinion filed July 8, 1899, and not officially printed, but see 57 Pac. 958; Bailey v. Wilson, 21 N. C. 182; Stevens v. Clough, 70 N. H. 165, 47 Atl. 615; 8 Cyc. 504; 40 Cyc. 2107.

Under the agreement the operation of the will was not interfered with; the property went as directed by it. When the devisees and legatees became the owners of the devised and bequeathed property, they could thereafter dispose of it as they saw fit, and made the agreement set out in the findings of the court. The settlement of the controversy was sufficient consideration for the agreement, and it was binding on all the parties to it.

[3] 2. The defendant argues that George Harris, who threatened to contest the will, had no right to speak for the plaintiff; that he was not her agent; that she was not present at the deliberations which resulted in the compromise; that she was not threatening to contest the will; and that for these reasons there was no consideration for the note.

In 8 Cyc. 502, this language is found:

"A compromise may be effected by persons representing and acting under the authority of the parties to a controversy, express or implied from their relations; but no such compromise by a third person is binding in the absence of such authority, or unless it be subsequently ratified either expressly or by such

acts of the interested parties as clearly evidence their intention to accept such settlement."

To the same effect is 5 R. C. L. 888. Unau

thorized contracts may be ratified by those for whose benefit they are made. Waterson v. Rogers, 21 Kan. 529; Ehrsam v. Mahan, 52 Kan. 245, 34 Pac. 800; Hartwell v. Manufacturing Co., 78 Kan. 259, 97 Pac. 432; Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4; Meador v. O'Dowd, 85 Kan, 878, 118 Pac. 695.

When the plaintiff accepted the note to her and commenced this action to compel its payment, she ratified the contract made for her benefit by her brothers, even if no one of them had authority to act for her at the time the compromise contract was made. One person may make a contract for the benefit of another, who may enforce it. Clay v. Woodrum, 45 Kan. 116, 25 Pac. 619; Howell v. Hough, 46 Kan. 152, 26 Pac. 436; Winans v. Manufacturing Co., 48 Kan. 777, 30 Pac. 163; Hargadine v. Swofford, 65 Kan. 572, 70 Pac. 582; 13 C. J. 325. An application of this rule is found in the law of mortgages, where the purchaser of mortgaged land assumes and agrees to pay the mortgage. Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Morlan v. Loch, 95 Kan. 716, 149 Pac. 431. The consideration for the settle ment of the controversy between her brothers upholds the contract as to the plaintiff.

[4] 4. It is urged that there was a mutual mistake made by all the parties in arriving at the amounts that should be paid to George Harris and to the plaintiff. The defendant knew the basis on which the settlement was made and understood those facts as well as any of his brothers. The facts stated in the seventh paragraph of the findings made by the court were supported by the evidence. The present situation comes within the rule declared in Brooks v. Hall, 36 Kan. 697, 14 Pac. 236, where this court said:

"It is not enough to invalidate the compromise and settlement that one of the parties made an error in the calculation of the items of his claim." Syl.

If the land devised to the defendant was overvalued in the compromise agreement, he had knowledge of that fact, and should have objected at the time. He made no objection; he ascertained the amount that he should pay on the basis of that valuation; he gave his note based on it; and he is concluded thereby. There was no mistake within the meaning of the law concerning mutual mistake of the parties to a contract.

[5] 5. The abstract shows that objection was made to the admission of the testimony of George Harris given in another action. Complaint is now made of its admission, but it appears that in this court a stipulation of the parties has been filed in which it is