ifications which the commissioners prepar- (Supreme Court of Kansas. June 10, 1916.)

The amended petition set forth an option contract for the mineral reserve under certain land underlaid with a coal vein of 34 inches or more in thickness and the tender of a deed thereunder and the defendant's refusal to acconveying only the one-vein mineral reserve cept. Held, that a demurrer to such pleading was rightly sustained.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 157, 165; Dec. Dig. 55(8).]

2. FRAUDS, STATUTE OF 131(1)-CONTRACT TO CONVEY LAND-ALTERATION BY PAROL. The material alteration by oral agreement of a contract for the conveyance of land is void under the statute of frauds. Whereute of, Cent. Dig. § 283; Dec. Dig. 131(1).] [Ed. Note.-For other cases, see Frauds, Stat

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2129; Dec. Dig. 461(1).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Cherokee | the parties, that necessarily implies an amCounty.

biguity in such contract. We have searched in vain to find such ambiguity. Only in case of ambiguity is such evidence or construction permissible. Rettiger v. Dannelly, 91 Kan. 61, 136 Pac. 942; 17 Cyc. 699, 670; 6 R. C. L. 837, 841; 10 M. A. L. 371. This is an action not to reform, but to enforce.

The ruling of the trial court is affirmed. All the Justices concurring.

(Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) CARRIERS 286(1)—INJURIES LICE OFFICER. A colored man 66 years old and his wife went as passengers from Newton to Walton, arThe testimony riving late in the afternoon. tended to show that they failed to find the man

The

they went to see, and desired to remain in the
depot until the train back to Newton due in
about an hour and a half should come.
town marshal came in, looked at the plaintiffs,
and ordered them out, telling them they could
asked the ticket agent where they were going,
not get a train till late the next morning, and
"they could make it back to Newton before that
time." When they expressed a desire to get a
ticket and remain in the depot, he told them
they could not stay there, and he would lock
them up if they went up town, and with some
force ejected them from the depot; the agent
being within sight and hearing and making no
remonstrance, but taking no part in the expul-
sion. Being thus compelled to walk back to
Newton on a dark and inclement evening, they
received injuries for which they sought to re-
cover damages from the company, on the the-
ory that it was the agent's duty to protect them
from the actions of the officer. Assuming, with-

Further, that such election was in accordance with the intentions of the parties at and before the execution of the above agreement, and as it was construed and understood by the parties at the time of its execu-out deciding, that the plaintiffs were entitled to tion and at the time of the election and that a deed in accordance therewith was tendered and refused. The deed, however, purports to convey only "the one mineral reserve" under the 70 acres of land. The trial court decided that the deed did not comply with the terms of the contract.

take a train, it is held that the defendant was the rights of passengers waiting in a depot to not rendered liable for the mere noninterference with the officer by the ticket agent.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1142, 1152; Dec. Dig. 286(1).]

Appeal from District Court, Harvey County.

Action by B. F. Fennell and another against the Atchison, Topeka & Santa Fé From a judgment for Railway Company. defendant, plaintiffs appeal. Affirmed.

J. I. Sheppard, of Ft. Scott, Adams & Matson, of Wichita, and S. A. Smith, of Winfield, for appellants. W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellee.

WEST, J. This is an appeal from an order sustaining a demurrer to the plaintiffs' evidence in their two cases which were submitted together. B. F. Fennell, a colored man 66 years old, with his wife, went as passengers from Newton to Walton, arriving there late in the afternoon. There was testimony to the effect that upon learning that the man they went to see was not there they conclud

No authorities are cited in support of this Contention.

A considerable research has failed to disclose any case exactly similar and but few bearing any analogy to the one under con

ed to take the first train back to Newton; tempt to hold the railway company liable for that the marshal of the town of Walton came the agent's passivity." into the front door, looked at the plaintiffs, then went to the door of the ticket office and said to the ticket agent, "Where is them coons going?" to which the ticket agent replied, "I don't know;" that the officer and the agent stepped back farther from the win-sideration have been cited or found. In one dow and had a conversation, and the officer came back and said to Fennell, "You'll get no train out of here until late to-morrow morning, and you can make it back to Newton before that time;" Fennell said, "Well, we will have to wait for it," but was told by the officer that he could not wait there, and, upon Fennell replying that he would purchase his ticket, said, "Well, you have not got any ticket, and you can't stay here;" that the officer got angry with him and put him out of the depot, saying, "I don't want you here nor none of your kind," and said to his wife, "You get on out, too; I'll lock both of you up," and he shoved Fennell along to the rear end of the platform and pushed him off, saying, “Make it on out of here; if you go up to that town, I will lock up both of you;" that while this was occurring Fennell said, "Let me get my ticket," and the ticket agent was then standing with his elbow on the counter where he issued tickets, looking into the waiting room; that the ticket agent made no effort to prevent the assault and said nothing to the officer.

In the opening statement counsel said that there was a train for Newton due an hour and a half later, and there was testimony that when plaintiffs had gone 22 or 3 miles from Walton a train called the local passed them on its way to Newton. It was a peculiar situation. The officer would not permit them to go up town. He would not let them stay in the depot, but forced them to start out afoot. No claim is made that they were committing any offense or that the marshal had any sort of warrant or authority for his conduct, unless it were his suspicion that they were disreputable characters. It was agreed that a certain witness, if present, would testify that it was the custom of this individual to run all the colored people out of town and out of the depot without remonstrance on the part of the agent, but the trial court deemed this incompetent. The position of the defendant is that, as the plaintiffs did not buy tickets, and the agent had no knowledge that they were there for any purpose except to loiter, he was under no obligation to furnish them lodgings nor required to interfere with the officer in what he deemed the discharge of his duties. In the brief it is said:

"In the case at bar it seems quite evident that the city marshal told the ticket agent that the plaintiffs were disreputable or suspicious characters, and that the agent thought the marshal quite justified in driving them out of the town. In any event it was not the agent's business to interfere in the matter, and it is absurb to at

case the tenant of a union depot company violently assaulted a passenger, and it was shown that his employer had known for years that he was a savage and vicious man inclined to make such assaults, and the company was held liable. Dean v. St. Paul Union Depot Company, 41 Minn. 360, 43 N. W. 54, 5 L. R. A. 442, 16 Am. St. Rep. 703. In another it was ruled that, when a person enters the office of a railroad depot to buy a ticket, he is entitled to protection as a passenger, even though the agent refuses to sell him a ticket; that a night watchman under the employ and pay of the company, although sworn in as a special policeman by the city marshal without authority, at the request of the company, rendered the company liable by the assault and false imprisonment of a passenger. Norfolk and Western R. R. Co. v. Galliher, 89 Va. 639, 16 S. E. 935. In Batton and Wife v. South & North Ala. Railroad Co., 77 Ala. 591, 54 Am. Rep. 80; it was held the duty of a railroad company to protect its passengers from violence or disorderly conduct, but that no liability would arise by such conduct on the part of two or three intruders coming into the waiting room while the plaintiff was waiting the arrival of her train; it not being shown that the company had notice of such an outrage. The opinion approves the any facts which justified the expectation of quoted doctrine that:

"While not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenmight reasonably be expected to occur, under ger from assaults from every quarter which the circumstances of the case and the condition of the parties." 77 Ala. 593, 54 Am. Rep. 80.

Also that the measure of duty in stations is not so great as it is after a passenger has boarded the train.

*

"We do not think that there is any duty to police station houses, with the view of anticipating violence to passengers, which there are no reasonable grounds to * expect. There is nothing tending to prove that the company had notice of any facts which justified the expectation of such a wanton and unusual outrage to passengers. * * It is shown neither to be commonly necessary or customary." 77 Ala. 593, 54 Am. Rep. 80.

In Duggan, Appellant, v. B. & O. R. R., 159 Pa. 248, 28 Atl. 182, 39 Am. St. Rep. 672, it was held that a conductor is not required to enter into a contest with or put himself in opposition to officers of the law who arrest a passenger, and whether the conductor's conduct in that instance was such as to render the company liable was said to be a question for the jury. In Krantz v. R. G.

W. Ry. Co., 12 Utah, 104, 41 Pac. 717, 30, arrest is being effected. In a note in 12 Ann. L. R. A. 297, a passenger alighted from a train at a small station and started towards the section house, and, being taken for a spotter, was assaulted by the section foreman, who gave him five minutes to get away under threat of death. The ticket agent was present and saw the assault and saw the parties back into the waiting room. Plaintiff, being afraid to stay,,started up the track, and was assaulted and robbed by two tramps, whereupon he returned to the station house and complained to the ticket agent and

wanted to send a telegram giving information of the robbery. The section foreman interfered and directed the ticket agent not to send the telegram, and with the two tramps came into the station and brutally beat up the plaintiff, who appealed to the agent and the bystanders for assistance, to which none except a stranger responded; the ticket agent merely ordering them all out of the waiting room. He testified that, though the foreman was subject to his orders in the station house, he would not obey him because they were not on good terms. It was held that for the assault outside the station house the company, was not liable, but was for that within the building. Although not regarding the plaintiff as a passenger, the court said:

"When the appellant was assaulted and beaten in the waiting room of the station, the company itself was present, in the person of the ticket agent in charge, who was its vice principal, and the injuries inflicted upon the appellant by one servant of a company, aided by strangers, in the presence of and under the very eye of the vice principal, who tamely acquiesced, and failed to exercise his authority for the protection of the appellant, were inflicted by the company itself. The agent should have protected appellant, or, at least, should have made an earnest effort to do so." Page 117 of 12 Utah, page 719 of 41 Pac. (30 L. R. A. 297).

Cas. p. 785, the following quotation is found: "If the conductor had knowledge that the arrest was unlawful, then it would be his duty to use extraordinary diligence to prevent it and protect the passenger, but even in that case the company would not be an insurer against such arrest. If the conductor had notice that the arrest was wrongful, it would be his duty to make inquiry into the matter. But, where the arrest is by officers of the law, and is apparently regular, and there is nothing to put the company on notice that the arrest is illegal, the company cannot be held liable for a failure to interfere with the officers and prevent the arrest."

Cyc. lays down the rule that, when a person is upon the depot premises upon the express or implied invitation of the company, reasonable care should be used for his safety. 33 Cyc. 805. In a note, 40 L. R. A. (N. S.) at page 1073, the rule deduced from a large number of decisions cited is that:

"In respect of arrests made by officers of the law, a passenger cannot recover damages unless he can prove that the carrier's servants were guilty of some positive misconduct with relation to the tort. It has been laid down that such misconduct may be inferred where the servants had notice, actual or constructive, of the illegality of his arrest, and failed to take such measures as were requisite for his protection."

In Texas Midland R. R. Co. v. Geraldon, 103 Tex. 402, 128 S. W. 611, 29 L. R. A. (N. S.) 799, Ann. Cas. 1913A, 45, it appeared that a man, with his wife and child, went to a small village to take a train, and, finding that it had gone, he left his wife and child in the depot and went out upon the platform to box his goods to ship on the next train. No objection to their presence was made until 10 o'clock at night, when they were ordered out by the agent, who said he was going to close up. The husband remonstrated that the wife was not in condition on account of her health to go into the rain which was falling, whereupon the agent called upon the town marshal to put them out of the depot, and in seeking a lodging house the wife was

In Southern Railway Company v. Hanby, 183 Ala. 255, 62 South. 871, it was charged that while waiting in the station for the purpose of taking passage the plaintiff was as-drenched, causing injury. It was held that, saulted and beaten, and that the company failed to protect him from such violence. It was ruled that in case of lawless violence of a stranger the duty of protection does not arise until the carrier has reasonable grounds for believing that such violence or assault will occur unless steps are taken to prevent it. "When that occurs then the carrier or innkeeper must at once take all such reasonable steps as the circumstances will admit of to prevent the threatened injury or insult, and, if he fails to do so, then he is liable in damages for the consequences." Page 260 of 183 Ala., page 873 of 62 South.

In Bowden v. Railroad, 144 N. C. 28, 56 S. E. 558, 12 Ann. Cas. 783, it was decided that the railroad company is not liable when the neglect consists only in the failure of the conductor to resist known officers of the law in carrying out their purpose to arrest a passenger and in delaying the train at a station

the company having prepared a waiting room for persons desiring to take passage, the plaintiff and his wife were not trespassers, but had a right to remain in the waiting room until the next train on which they could go, subject to the right of the company to close its building at such hours as reasonable rules require, but that the agent was required to use care not to place an occupant in a position which would probably endanger health and life.

"Under such circumstances it was not lawful for the agent of the railroad company to force Mrs. Geraldon out of the room and into the rain whereby her health might be impaired, and, it appearing from the evidence that the agent of plaintiff in error having thus knowingly forced Mrs. Geraldon out of the room and into the rain, which caused her to suffer physical pain, the railroad company was properly held responsible for the results." Page 404 of 103 Tex., page 612 of 128 S. W. (29 L. R. A. [N. S.] 799,

Purchaser, Cent. Dig. § 1059; Dec. Dig.
[Ed. Note. For other cases, see Vendor and
352.]

351(5)-REME

The Eighth Circuit Court of Appeals, in, not error for the court to instruct the jury that Thompkins v. Missouri, K. & T. R. Co., 128 "both parties are seeking to treat the contract C. C. A. 1, 211 Fed. 391, 52 L. R. A (N. S.) in question as repudiated." 791, in a case involving the arrest of a colored interstate passenger because in a car set apart for white persons, held that it was the duty of the Pullman conductor to exercise reasonable care and diligence to protect passengers, but that its employés were not required to substitute their opinions of the law and of the duty of officers of the law for the judgment of the latter and to interfere with and obstruct the discharge by the officers of their duties, and that their failure so to do did not constitute actionable negligence.

3. VENDOR AND PURCHASER
DIES OF PURCHASER-DAMAGES.
Where a vendor of real estate receives a
repudiates the contract and wrongfully recovers
payment on the purchase price and afterwards
possession of the property, and the vendee elects
to treat the contract as repudiated, the measure
of damages, where no other elements of damage
amount paid on the purchase price, less the
are established, is correctly defined to be the
rental value of the property while in possession
of the vendee.

[Ed. Note.-For other cases, see Vendor and
Purchaser, Cent. Dig. § 1053; Dec. Dig.
351(5).]

Appeal from District Court, Shawnee County.

Action by Grace Allen against M. S. Gheer.

peals.

Affirmed.

J. B. Larimer and Hugh T. Fisher, both of Topeka, for appellant. J. J. Schenck, of Topeka, for appellee.

This is not the case of an assault by a servant of the company or by a stranger as a private citizen. It is, according to the plaintiffs' evidence, an instance of a rough and arbitrary expulsion by a star-adorned dignitary who overruled the defendant's time- From a judgment for plaintiff, defendant aptable and took charge of its station to the extent of forcing the plaintiffs to start on foot for the point whence they had come and whither they desired to return as passengers on board one of the company's trains. It may be fairly inferred from the evidence that the agent heard Fennell tell the marshal he wanted to buy a ticket, and knew there would be a train along in about an hour and a half. But assuming, without deciding, that the plaintiffs were entitled to the protection of passengers waiting in the depot to take a train, we find no sufficient' basis in reason or in precedent for holding that it was the duty of the agent to venture upon any dictation to or interference with one so distended with his little brief authority as was the star actor in this scene of expulsion. The trial court's ruling is affirmed. the Justices concurring.

(38 Kan. 223)

ALLEN v. GHEER. (No. 19955.)* (Supreme Court of Kansas. June 10, 1916.)

DAWSON, J. On October 15, 1913, the defendant, M. S. Gheer, made a written contract with D. L. Allen for the sale of a house and six acres of land, in a subdivision near Topeka, for $4,000. Allen paid $500 on the purchase price, and the contract provided that Allen was to pay the taxes, interest, etc., as they became due, and further provided:

the parties hereto, that time and punctuality "And it is hereby agreed and covenanted by are material and essential ingredients in this contract."

Allen took possession of the property, and All Gheer went away to California. Some time afterwards, Allen assigned the contract to his wife. The taxes due in December, 1913, were not paid by the Allens, and they were paid by Gheer's banker to protect his interest. About March 1, 1914, the plaintiff, Mrs. Allen, rented the property to John Spurrier, and he took possession. Gheer returned from Cali1. VENDOR AND PURCHASER 280(1)-FOR-fornia on March 9th. Some days later he FEITURE OF CONTRACT-WAIVER-PLEADING visited the property and found it in a dilapiAND PROOF. dated condition, very different from what it was when he had given possession to Allen. About March 20th, Gheer called Mrs. Allen by telephone. Her father answered the call, and Gheer told him who he was, and inquired

(Syllabus by the Court.)

The rule that a waiver of a right of forfeiture must be pleaded before it can be considered does not apply when evidence tending to show the waiver is introduced without objection, and when the testimony of the defendant, who is insisting on the forfeiture, tends to show a waiver, and when his request for the submission of special questions on the subject of waiver is allowed.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784, 785, 789; Dec. Dig. 280 (1).]

2. VENDOR AND PURCHASER

"what they were going to do in regard to the place; that the taxes were not paid and the place not well kept."

Gheer met Mrs. Allen about March 24th, and once or twice afterwards, with a view of 352-REME- effecting a settlement. Gheer paid $20 to DIES OF PARTIES-INSTRUCTIONS. When a vendor of real estate, under a con- Spurrier, the tenant, to vacate the premises, tract of sale and to convey title when payments and thus obtained possession about March are completed, by his course of conduct has 31st. About April 10th, Mrs. Allen offered waived the default of the vendee and the vendee's assignee, and wrongfully recovers possesGheer the December half of the taxes, and sion of the property, and the vendee's assignee he told her to settle with his attorney, but commences an action for damages thereon, it is did not inform her who was his attorney. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-2

*Rehearing denied July 14, 1916.