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prosecuted under two counts. first count the charge was that:

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The defendant "did unlawfully, willfully, and (Supreme Court of Kansas. June 10, 1916.) feloniously set fire to and burn in the nighttime the one-story frame three-room dwelling house commonly known and described as 403 Lawrence avenue, Leavenworth, Leavenworth county, Kan."

In the second count the charge was that: The defendant "did unlawfully, willfully and feloniously set fire to and burn the one-story frame three-room dwelling house described as No. 403 Lawrence avenue, Leavenworth, Leavenworth county, Kan., together with the goods, wares, and other chattels which were situated in said house at said time, and which were insured against loss or damage by fire with intent to defraud or prejudice the insurer."

Each charge alleged that the offense was committed on the 25th day of March, 1915. The evidence tended to show that there were two fires in the house, one on the 24th day of March and the other on the 26th day of March, 1915. The court instructed the jury that it could convict the defendant on either the first or the second count, or both. The jury returned a verdict as follows:

"We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant guilty as charged in the second count in the information. And we further find the defendant not guilty as charged in the first count in the information."

(Syllabus by the Court.)

BILLS AND NOTES 103(1)-EVIDENCE
444(6)-FRAUD-PAROL EVIDENCE AFFECTING

WRITINGS.

The plaintiff sold her interest in a failing mercantile business to her partner, who was without funds, but who hoped to save the business and pay the plaintiff $1,000 in three years. The purchaser offered to give a note for the amount, but the plaintiff's agent told her if she did so, her commercial rating would be affected, she would have no credit, and her creditors would throw her into bankruptcy. To avoid this the purchaser's mother and brother signed the note under an oral agreement that it was a mere form; that the debt would be considered out of the business; and that if she were unable the debt of the purchaser; that she could pay it to do so, the makers would not be called on to pay. Held, the note was not unenforceable because of fraud, and the written instrument was not impeachable by the contradictory oral agree

ment.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 233-238; Dec. Dig. 103(1); Evidence, Cent. Dig. §§ 1943, 2049; Dec. Dig. 444(6).]

Appeal from District Court, Labette County.

Action by Gusta Stevens against Clara E. Inch, executrix of the estate of Edgar T. Inch. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with

The defendant urges that but one offense was charged in the information, and that for that reason, when the jury returned a verdict of not guilty on the first count, no judg-directions to render judgment for plaintiff.

ment of conviction could be rendered on the second count.

The offense charged in the first count was different in character from that charged in the second count. It is true that the information alleges that the two offenses were committed on the same day, but it is not necessary to allege the exact day on which an offense was committed, and the evidence may show that the offense charged was committed at any time within two years preceding the filing of the information.

Nelson Case, of Oswego, for appellant. E. L. Burton, Geo. F. Burton, and J. W. Iden, all of Parsons, for appellee.

BURCH, J. E. T. Inch and Laura B. Inch gave their promissory note to the plaintiff for $1,000. On the death of E. T. Inch the note was presented as a demand against the estate. An appeal was taken from the judgment of the probate court. In the district court the judgment and verdict were against the plaintiff, and she appeals.

The plaintiff and Gwendola Inch were partners in mercantile business. The plaintiff's interests were looked after by her husband, W. H. Stevens, and the business was conducted by Miss Inch. The business was not prosperous, and Miss Inch went to Kansas City and talked to some of the firm's creditors. They complained of W. H. Stevens, and told her they would extend her credit if she desired to go ahead with the business, but would not do so while Stevens was connected with it. This led to negotiations for a sale of the plaintiff's interest to Miss Inch. Stevens conducted the negotiations for his wife. Miss Inch had no funds with which to make the purchase, but hoped she might be able to save the business and pay the plaintiff $1,000 in three years. She offered to give a note to the plaintiff for

If two offenses are charged in an information, each involving a separate and distinct crime, they may be charged as having been committed on the same day; and, in fact, they might have been committed on the same day. In the present case the evidence tended to show that two offenses were committed, but on different days. For the two offenses good pleading required that the facts constituting each of the crimes be set out in separate counts. If these two offenses had been charged in one count, that count would have been bad for duplicity. Two offenses were charged in separate counts in the information. Evidence to establish each of these offenses was properly admitted, and the instruction of the court that the jury could convict on either or bath of these counts was correct. The judgment is affirmed. All the Justices that sum, but Stevens told her if she gave a concurring. note, her commercial rating would be af

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

dence. Consequently, to defeat liability on a note because obtained by fraud, the fraud must consist in something else than representations and promises of the kind referred to.

fected, she would have no credit, and her all notes were open to qualification and concreditors would throw her into bankruptcy.tradiction by parol evidence than if the door He proposed that Miss Inch's mother and were closed and locked against such evibrother, Laura B. Inch and E. T. Inch, give a note for $1,000, payable in three years, which was done. He stated that the note was a mere form, and agreed with the makers that the debt would be considered the debt of Miss Inch, that she could pay it out of the business of the store, and that if she were unable to do so, the makers would never be asked to pay the note. After the note was signed the plaintiff executed and delivered to Miss Inch a bill of sale of the stock and fixtures. The fixtures were worth about $1,000. The value of the stock was not The judgment of the district court is reshown. The firm liabilities were about $2,- versed, and the cause is remanded, with di000. Afterwards Miss Inch became bank-rection to render judgment for the plaintiff. rupt. The negotiations consummated by the All the Justices concurring. note and bill of sale were oral.

Some credits are indorsed on the note. The plaintiff's daughter purchased goods at the store to the amount of $138. There was no proof that these purchases were unauthorized, or that the plaintiff was not liable for them, and the amount should be credited on the note.

(98 Kan, 350)

COMMERCIAL NAT. BANK v. HUTCHIN-
SON BOX BOARD & PAPER CO.
et al. (No. 20235.)

The defense was that the statements and representations of Stevens were made for the fraudulent purpose of securing the signature of the decedent, E. T. Inch, to the note, and for the purpose of defrauding the creditors of Gwendola Inch. The court instructed the (Supreme Court of Kansas. June 10, 1916.) jury that if they found the facts according to the theory of the defense, the plaintiff could not recover. The plaintiff objected to the parol evidence on which the defense rested, moved to strike it out, and asked that the jury be instructed to disregard it. Stevens denied the statements and promises

attributed to him.

EVIDENCE
NOTES.

(Syllabus by the Court.)

441(11) PAROL BILLS AND

A parol contract, made at the time of or previous to the execution of a negotiable promissory note cannot be pleaded nor proved to show that the note was not to be paid at maturity, but was to be extended for a definite period.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2043, 2044; Dec. Dig.

Appeal from District Court, Reno County. Action by the Commercial National Bank against the Hutchinson Box Board & Paper Company and another. From judgment for

The giving of the note by the makers instead of by the debtor, Miss Inch, had no effect on her creditors, existing or prospec-441(11); Contracts, Cent. Dig. § 1616.] tive. Some of them at least had suggested to Miss Inch that they would extend her credit if she wanted to go ahead, but not while the Stevens were in the firm. How she could acquire their interest without increas-plaintiff, defendants appeal. Affirmed. ing her liabilities is not apparent. Without F. Dumont Smith, of Hutchinson, for apthis, however, the note afforded Miss Inch no pellants. Van M. Martin, W. G. Fairchild, additional means of deceiving her creditors. F. L. Martin, and W. H. Lewis, all of HutchShe could keep a note out of any statement inson, for appellee. of her liabilities which she might make, as well as the indebtedness in fact incurred by buying out her partner. Unless the contingency occurred of being required to make a statement of liabilities for the purpose of credit, and unless she responded with a false statement to maintain her rating or obtain credit, no creditor could be defrauded.

It does not help the defense to call the statements and promises of Stevens fraudulent. The books teem with cases involving oral promises that notes need not be paid, or are mere memoranda, or will be surrendered without satisfaction, or may be paid out of the profits of a business venture if success ful, and need not be paid otherwise. In all such cases the promise is made to induce the maker to sign the note, and if the promise be not kept, it works a fraud. The theory of the law is that more fraud would result if

MARSHALL, J. The plaintiff recovered judgment on a negotiable promissory note. The defendants appeal.

For a statement of the facts in this case and of the questions involved, we quote from the defendants' brief:

"On December 30, 1914, the appellee filed its promissory notes of different dates, executed by petition against the appellants, declaring on five the defendants. On April 6, 1915, the defendant the Hutchinson Box Board & Paper Company, which will be hereinafter referred to as the Paper Company, filed its answer and crosspetition; and on the same day the defendant Carey filed his answer and cross-petition. The them and the appellee, alleging that prior to and appellants set up an oral agreement between at the time of the execution of the first note, the appellee agreed by and with the appellants 000 as a revolving fund for the Paper Company, that if the Paper Company would borrow $14,and the defendant Carey indorse the notes, the notes should be made payable in 90 days, and

"Evidence of the situation of the parties, the circumstances surrounding the transaction, and of independent parol agreements not conflicting with the terms of the written instruments, was competent, and we do not see that any other material testimony was received." Page 670 of 22 Kan.

Drake v. Dodsworth, 4 Kan. 135, recognizes the same principle in the following language: "Parol evidence is not admissible to vary the terms of a written contract, especially when the parol evidence offered is concerning stipulations embraced in the written contract." Syl. par. 4.

that at the expiration of 90 days they should be [ants, the principle that parol evidence can renewed for another 90 days, and so on for three never be introduced to contradict or vary separate renewals; that all of the notes sued the terms of a written contract is recognized. upon were executed under the same contemporaneous parol agreement; that the defendants In McNamara v. Culver, supra, this language had offered to renew the notes under the said is found: parol agreement; had tendered new notes and payment of the interest, but that the plaintiff, disregarding its said agreement, had refused to carry out the same, demanded immediate payment of the notes, and had brought suit upon them before the expiration of the said mrol agreement; and that thereby the said suit was prematurely brought. Each answer also contained a cross-petition, but the court at the time refused to consider the cross-petition, and it is not material to this case. Plaintiff replied to the defendants' answers by a general denial of each. On March 27, 1915, the appellee filed its motion for judgment on the pleadings, which motion was by the court overruled. Thereafter, and on April 30, 1915, the case came on to be tried on the issues so framed to a jury. The jury failed to agree. On the 6th day of May, 1915, plaintiff in open court voluntarily dismiss ed the second, third, fourth, and fifth counts of its petition as separate causes of action without prejudice, leaving the action pending on the first count. On the same day the plaintiff filed its motion for judgment on the pleadings as to the said first count, which motion was by the court sustained, and judgment rendered in favor of the plaintiff on the said count, in the sum of $5,308.18 and costs. From this judgment the appellants appealed, and assign as error the sustaining of the motion for judgment and the rendering of the judgment in favor of the appellee and against the appellants. One sole question is presented by the record, whether the contemporaneous parol agreement to extend the notes as alleged in the answers of the appellants is valid and binding on the appellee. This is all there is to the case."

The defendants rely largely on Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346. There the court said:

"Where a husband and wife execute a deed upon property owned by her, and she intrusts it to her husband to be delivered as security for a note executed by him to the grantee, and the husband without her knowledge delivers it under an arrangement made by him with the grantee that the note is to be renewed from time to time, extensions of the time of payment of the debt, made in pursuance of such arrange ment, but without the knowledge of the wife, do not effect the release of her property." Syl. par. 1.

This shows facts altogether different from the facts in the present case. A principle of law was there applied altogether different from that now sought to be invoked by the defendants. The agreement for the extension of time in the Moody Case was complied with. It was not set up to contradict the terms of the note. The fact that time was extended, not the agreement to extend time, was set up by Mrs. Moody for the purpose of showing that she had been released from the pay

ment of the note.

See, also, Assurance Co. v. Norwood, 57 Kan. 610, 615, 47 Pac. 529; Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Roebuck v. Bank, 79 Kan. 862, 100 Pac. 621; Van Fossan V. Gibbs, 91 Kan. 866, 139 Pac. 174.

The note provided for the positive payment of a certain sum of money at a fixed and definite time. The defendants sought to establish a parol agreement, by which it was provided that payment of the note in money need not be made at maturity. This contradicted the terms of the note. This could not be done under the law.

The judgment is affirmed. All the Justices concurring.

(98 Kan. 216) RAEDELL V. ANDERSON et al. (No. 19762.) (Supreme Court of Kansas. June 10, 1916.)

(Syllabus by the Court.)

1. EASEMENTS 30(1)-WAY OF NECESSITYREVOCATION OF RIGHT.

In 1883 the grantor of the plaintiff owned a part of a city lot in Harper. The grantor of the plaintiff and the grantor of the defendant jointly owned an adjacent part of the same lot. Buildings were erected on these grounds and a stairway was made in the building exclusively owned by plaintiff's grantor, which gave access to the upper floor of defendant's building, and defendant's grantor used the stairway. Later the stairway was closed, without objection from defendant's grantor or from defendant, and remained closed for over 20 years. Held that, whether the use of the stairway was a license or merely permissive, the closing of the stairway and acquiescence for over 20 years were, in effect, a revocation of the right to its use. [Ed. Note.-For other cases, see Easements, Cent. Dig. § 77; Dec. Dig. ~30(1).] 2. MORTGAGES

MENT-EFFECT.

588-FORECLOSURE-Judg.

A claim of right to use a stairway as an appanage to adjacent property is cut off by a judgment of foreclosure in which the owner of title, or interest in the property, which includes the adjacent property is barred from all right, the stairway. Such judgment also bars all right to the space over the stairway.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1686; Dec. Dig. 588.] 3. INJUNCTION 46 JURY 14(11) RIGHT TO JURY TRIAL TRESPASSERS ON REALTY.

The defendants cite a number of cases decided by this court. We have examined all of them. In Simpson v. Kimberlin, 12 Kan. 579, Babcock v. Deford, 14 Kan. 408, Weeks v. Medler, 20 Kan. 57, McNamara v. Culver, 22 Kan. 661, 670, and Schoen v. Sunderland, Injunction is a proper remedy against tres39 Kan. 758, 18 Pac. 913, cited by the defend-passers on real estate and a jury trial is not de

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

mandable as a matter of right in a suit against such trespassers.

46;

[Ed. Note. For other cases, see Injunction, Cent. Dig. 88 98, 99, 107: Dec. Dig. Jury, Cent. Dig. §§ 77, 79; Dec. Dig. 14(11).]

4. ADVERSE POSSESSION 31-PRESCRIPTIVE RIGHT NOTICE.

No prescriptive right in realty arises unless the owner of the property has notice of the exercise of that right and of a claim thereto, or unless the exercise of the right is so visible, open, and notorious that notice may be presumed. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. 31.]

5. Appeal and Error

1041(2)—HARMLESS

ERROR-PLEADING-AMENDMENT. No reversible error can be predicated upon an order of the district judge at chambers allowing the filing of an amended petition and of additional parties defendant, when the issues are thereafter made up, and the cause fully tried out, and where no prejudicial result can be traced to such irregularity. Civ. Code, §§ 141, 581 (Gen. St. 1909, §§ 5734, 6176).

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4107; Dec. Dig. 1041(2).]

6. FINDINGS OF FACT-CONCLUSIONS OF LAW. Findings of fact examined, and found established by the evidence, and conclusions of law based thereon examined, and held to be free from

error.

Appeal from District Court, Harper County. Action by Pauline Raedell against Leslie L. Anderson and another. From judgment for plaintiff, defendants appeal. Affirmed.

Geo. E. McMahon, of Anthony, and Leslie Anderson, of Harper, for appellants. T. A. Noftzger, of Wichita, and A. G. Washbon, of Harper, for appellee.

over the 17 feet owned by Glenn and Munger jointly.

The

In time the 60-foot building, and 23 feet of the second building, and the entire upper floor of both buildings were occupied by one tenant, and he closed the stairway and walled up the entrance. It remained closed for over 20 years. As time went by other persons came to own the property. north 17 feet of the second building became the property of the defendant Reddy. For some years it was used as a barber shop, and its second story was a suite of bathrooms conducted by the barber tenant, and access to the bathrooms on the second floor was obtained through a stairway in the barber shop. The plaintiff some years ago became the owner of the south 83 feet, and decided to make a residence for herself on the second floor, and to that end she re-established and renewed the stairway as a private access to her upstairs quarters, and put in a door at the foot of the stair which she controlled by a lock and key.

The defendant Anderson is the tenant of the defendant Reddy, and occupies the second floor of the 17-foot building as an office. It was to prevent her private stairway from being used by the defendants and incidentally by the public that this suit was brought.

The district court disposed of the controversy in 21 findings of fact and 6 conclusions of law based thereon. The findings of fact recite that in 1886 the tenants of the property exclusively owned by Glenn, and now owned by the plaintiff, closed and walled up the outside entrance to the stairway in dispute and made an entrance into it from the DAWSON, J. In this action the appellants inside of the store building, and some time later the same tenants also leased and ocwere enjoined from using a stairway and an alcove above the stairway in a building be- cupied the upper floor of defendant Reddy's longing to plaintiff in the city of Harper. 17-foot building. One or two years later, Lot 12 in Harper has a 25-foot front to which would be about 1888, these tenants the south, facing Main street, and extends discontinued the use of the second floor of to the north over 100 feet, and is bounded on the Reddy property. The Reddy building the east by Central avenue. In 1883 W. M. was then leased for a barber shop, and RedGlenn owned the south 83 feet of this lot, dy built an inside stairway to reach his secupon which he had a two-story building ond floor and this means of access was used facing Main street, and extending north-for several years. In March, 1901, the plainward 60 feet on Central avenue. The next 23 feet, belonging to Glenn, was vacant. Next to this was 17 feet of the same lot, which belonged to Glenn and one H. C. Munger joint-stairway to which access was had from the ly. Glenn and Munger erected a two-story inside, and the original outside entrance building on this 43 feet facing Central ave- which had been walled up in 1886 by Glenn's nue; that is, on the 23 feet owned by Glenn tenants. In July or August, 1902, the plainindividually and on the 17 feet owned joint- tiff reopened the outside entrance to the ly by Glenn and Munger. A stairway to the stairway and leased the upper floor of her second floor was constructed on that part of property to the Knights of Pythias. She the property which exclusively belonged to put in a door and lock at the entrance of Glenn. This stairway gave access to the sec- the stairway and gave her tenants the key. and floor, both north and south. It was used This tenancy continued for five or six years. by the grantor of the defendant Reddy for This would carry the situation down to 1907 some years. Over the stairway was a space or 1908. About 1907 Reddy rented the sec(called an alcove) which served as a closet ond floor of his building for a real estate part of the time for the second-floor rooms office, and his tenant used the stairway in

tiff purchased the Glenn property; that is, the original 60-foot property and the 23 feet next to it on the north, which included the

In constructing the building the space over the stairway opened into the second floor of Reddy's part of the property. It did not open directly into the upper floor of plaintiff's property. On this subject the court made the following finding of fact and conclusions of law:

"(14) About two years ago the defendant Anderson removed the partition north of the stairway in the second-story rooms and placed the partition in such a manner that he made a new room composed partly of the space above the stairway in question, and has ever since been using the same. This partition was removed and changed as above stated, and the space above the stairway was used by the defendant Anderson without the knowledge or consent of the plaintiff."

dispute. About two years later Anderson, J a jury trial on the question of the right to one of the defendants and a tenant of Red- use the alcove or space over the stairway. dy, likewise used the stairway. The plaintiff had acquired the property in 1901, and had no notice or knowledge that any one claimed the right to use the stairway; and she did not know that Reddy's tenants had used the stairway until about 1909. Not until 1913 did she know that Reddy or his tenants claimed a right to use the stairway. It will thus be seen that the stairway was closed in 1886. The tenants who closed it ceased to be tenants of the upper floor of the Reddy building about 1888, so that the adverse closing may justly be reckoned from the latter date. While it was reopened in 1902, it was only opened at that time as a private entrance to the lodge of the Knights of Pythias, who were plaintiff's tenants. Not until about 1907, "about seven years ago," as the trial court found, was there any attempted resumption of the use of the stairway by Reddy or his tenants. Thus the adverse closing began about 1888, and continued at least until about 1907. We gather all these incidents from the court's findings of fact, although we have diligently consulted the original record to verify them, and, since they are based upon some competent evidence, it cannot affect their conclusive force that there may be other conflicting testimony. From this it will be seen that the trial court did not commit material error in its second conclusion of law, which reads:

"By reason of the fact that the said stairway was closed up by the tenants of Glenn, who was interested in all of the property immediately north and immediately south of the stairway, and said stairway remained closed for more than 20 years without objection, the license to use the stairway by the owners of the property north of the same was revoked."

The trial court did follow up this finding and conclusion with two others, both of which are just as potent as the one depending upon the statute of limitations. One of these was a foreclosure proceeding on the Glenn property in 1890, in which Thomas S. Moffett, Reddy's grantor and predecessor in title to the 17-foot property, was made a defendant, and in the final judgment was barred of all right, title, and interest in the Glenn or plaintiff's property. Surely that judgment cut off Moffett's right, and consequently Reddy's right to use the stairway in plaintiff's property. The plaintiff purchased the property with the stairway closed and unused, on the faith of a judgment barring Reddy's grantor of any interest, and without any notice of any claim by anybody to use that stairway; and, while these incidents are unnecessary to strengthen the exclusive right of plaintiff to this stairway, under 19 or 20 years' adverse possession, they do show other appropriate and unassailable grounds upon which the judgment for plaintiff on this phase of the case securely rests.

"(5) No permission or license was ever given to the defendants, or either of them, to use and occupy the space over the stairway; and by the use and occupation of the same they have not acquired any interest therein or right thereto adverse to the plaintiff.

of notice on him by the plaintiff has been a "(6) The defendant Anderson since the service continuous trespasser on the said stairway and in the space over the same, and in his acts he has been aided and assisted by the defendant Reddy.

The original use of the space over the stairway was no more than permissive, and such use would confer no right nor give rise to such right. Railway Co v. Conlon, 62 Kan. 416, 420, 63 Pac. 432, 53 L. R. A. 781; Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446; 14 Cyc. 1150. Furthermore, any claim of right was barred by the foreclosure proceedings. Moreover, the plaintiff had no notice of defendants' use of this space or of their claim thereto until shortly before this lawsuit began. Unless this use of the space over the stairway was with the knowledge of the plaintiff, or at least so visible, open, and notorious that her knowledge would be presumed, no prescriptive right to use would arise. 14 Cyc. 1148. We think the trial court's finding that the defendants were mere trespassers on the space over the stairway was correct, and they were properly enjoined therefrom. 22 Cyc. 836. On neither of the main features of this case does Smyre v. Kiowa County, 89 Kan. 665, 132 Pac. 209, affect it, since here all the pertinent facts are found against defendants' contentions.

[5, 6] A separate brief is filed herein by the defendant Anderson, the tenant of Reddy, in which much skill and learning is shown in supplementing the argument of Reddy's counsel, but it, too, is largely based upon that portion of the evidence which apparently did not impress the trial court; and, since we have determined that the findings made by the court were based upon some substantial evidence, it can avail naught that other and contradictory evidence was also presented. No error is assigned on Anderson's plea in abatement. It may be conceded that the al[1-4] Much stress is laid by the defend-lowance of the amended petition and of adants upon the district court's refusal to grant ditional parties defendant, after issues join

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