for several reasons. The fact that the maker received no benefit from the transaction did not constitute a defense. The loan made by the bank to Blitz was a sufficient consideration. 8 C. J. 214; 4 A. & E. Encycl. of L. 188. While the answer alleges that the defendant signed the note "for the purpose of accommodating said bank," the facts set out show that in legal contemplation Blitz was the person accommodated. "The accommodated party is he to whom the credit of the accommodation party is loaned, and is not necessarily the payee, since the inquiry always is as to whom did the maker of the paper loan his credit as a matter of fact. And the fact that one derives some incidental benefit from the paper will not make it accommodation paper as to him." 8 C. J. 254. In illustrative cases cited to the foregoing text, this language was used: ""The accommodated party, in a legal sense, is the person to whom the credit of the accommodating party is loaned, not a third person who may receive an advantage by the loan of the credit.'" Note 79. "To have the money raised on a new note made by defendant was in a certain popular sense an accommodation, that is, a convenience, to the plaintiff, just as it is a convenience to a creditor, who wants his money but cannot get it from his debtor in cash, to get payment by a note on which he can raise the money temporarily, though at the risk of an indorsement which he may ultimately have to pay. But this is very far from what the law means by accommodation paper." Note 79. The note was not executed to enable the bank to obtain money from some one else, but to enable Blitz to obtain more money from the bank. The defendant's credit was not lent to the bank, but to Blitz; the effect of the transaction being to enable him to borrow upon the credit of the defendant after the credit which the bank under the law could extend to him had been exhausted. The circumstance that the bank was desirous of doing the business, and that the defendant was moved by friendship for the bank rather than for Blitz-by a desire to help the lender to earn interest, rather than by a wish to aid the borrower in obtaining a loan-does not affect the legal relation of the parties. The situation is entirely different from that presented in Means v. Bank, 97 Kan. 748, 156 Pac. 701, where it was held that a bank was bound to protect the maker of a note executed to it, for its accommodation, the proceeds of which it received and retained. Here the money was lent to Blitz upon the strength of the note signed by the defendant, without which the loan could not have been made. The circumstance that the president of the bank told him that the loan was otherwise secured, and that he would not have to pay it, does not alter the fact that it furnished a consideration for the note. [2] 2. By the weight of authority an executive officer of a bank has no implied authority to bind it by a promise that one who signs a note shall not be required to pay it. The cases on the subject are collected in a note in 28 L. R. A. (N. S.) 501, where it is said: "It is a general rule, recognized by the great majority of the cases, that the president or cashbank has no authority, simply by virtue of his ier or any other similar executive officer of a office, to bind his bank by an agreement, made with the maker or indorsers of commercial paper payable to the bank, that their liability on such whether the agreement is made before the paper The rule applies paper will not be enforced. has been signed, or after." When an officer in taking a note in behalf of the bank agrees that it shall not be enforced, the question of the extent of his agency may perhaps be eliminated by the rule that a principal cannot accept the fruits of a contract made for it and at the same time reject any burdens assumed, on the ground that they were unauthorized. Lumber Co. v. Silo Co., 92 Kan. 368, 140 Pac. 867, Ann. Cas. 1915D, 30; cases cited in Means v. Bank, supra. However this may be, the oral agreement that the defendant was not to be held to the payment of the note was not enforceable because it was in direct conflict with the terms of the written instrument, which could not be contradicted in this manner. Stevens v. Inch, 98 Kan. 306, 158 Pac. 43; 17 Cyc. 589; 4 Wigmore on Evidence, § 2444, par. 3. [3] 3. Moreover, the enforcement of an agreement between the bank and the defendant, that Blitz alone should be liable for the payment of the loan, must be refused upon another ground. To allow the relations of the parties to be controlled by such an agreement would be to countenance and give effect to a secret arrangement entered into for the purpose of evading the law which limits the amount which a bank may lend to one person. Gen. Stat. 1915, § 530. In Means v. Bank, supra, the facts were held not to render the principle applicable; but this was said concerning it: "And this brings us to the second contention of the defendants: That the entire transaction is void for the reason that the evidence conclusively shows that the transaction was entered into for the purpose of deceiving the bank commissioner and making it appear to the creditors and stockholders that the bank held these notes that where an officer of a bank enters into a as valid notes. Authorities are cited holding transaction with an individual with such a purpose, and executes legal instruments of an oblig. atory character for that purpose, the maker of the obligation cannot thereafter be heard to say they are invalid. Thus, in State Bank of Moore v. Forsyth, 41 Mont. 249, 267, 108 Pac. 914 [28 L. R. A. (N. S.) 501], it was held that under such circumstances 'it is sound reason, as well as pure justice, to leave him bound who has bound himself.' The soundness of the general rule contended for by the defendants cannot be doubted." 97 Kan. 751, 156 Pac. 702. The language attributed to the Montana court was quoted by it from Pauly v. O'Brien (C. C.) 69 Fed. 460, where the maker of a note sought to escape liability by showing that it was given in renewal of one he had executed to a bank, to take the place of a matured note of one Naylor, at the request of the president, who told him that the Naylor note was secured by sufficient jewelry to pay it, but that he desired to get it "out of the past-due notes," and would carry! 303. See, also, Rankin v. City National it as collateral to the note of the defendant. Bank, 208 U. S. 541, 28 Sup. Ct. 346, 52 L. The court said: "It thus appears that the defendant executed his first note, subsequently renewing it from time to time, and ultimately by the note in suit, for the purpose of having it take the place of the Naylor note, which, together with the collaterals, were to be collateral to the note' given by him. If, however, this was not really the case, but that, in truth, the transaction was a mere trick to make it appear to the government and to the creditors and stockholders of the bank that it had a valuable note when in fact it did not have one, the result must be the same, for, when parties employ legal instruments of an obligatory character for fraudulent and deceitful purposes, it is sound reason, as well as pure justice, to leave him bound who has bound himself. It will never do for the courts to hold that the officers of a bank, by the connivance of a third party, can give to it the semblance of solidity and security, and, when its insolvency is disclosed, that the third party can escape the consequences of his fraudulent act." 69 Fed. 461. In New England Fire Ins. Co. v. Haynes, 71 Vt. 306, 310, 45 Atl. 221, 222 (76 Am. St. Rep. 771), an action on a note given to an insurance company to replace another, the court said: "It is not necessary to decide whether it was error to admit parol evidence to show what occurred between Redington and the defendant, when the latter gave the note to the plaintiff, for the facts found on such evidence cannot avail the defendant by way of defense to this action. Such facts show that he gave the note for the purpose of enabling the plaintiff to deceive the insurance commissioners of this state in respect to its then financial condition, and he is estopped from taking advantage of his own fraud in this behalf." In Westwater v. Lyons, 193 Fed. 817, 820, $23, 113 C. C. A. 617, 620, 623, a note for which the makers received no benefit was executed to a national bank, which used it as a substitute for a note representing a debt on which one McKinnie was liable, to deceive the Comptroller of the Currency. The Circuit Court of Appeals held that it was a question of fact whether the note was given for the accommodation of McKinnie or of the bank, but said: "Whether the note was given for the accommodation of McKinnie or for the accommodation of the bank would not matter, if, at the time it was given, Westwater was cognizant of the situation between the bank and the Comptroller of the Currency. * As we have already remarked, however, the innocence of the defendant in this respect underlies his whole defense and is a necessary postulate to every proposition involving the question of his liability." See, also, Murphy v. Gumaer, 18 Colo. App. 183, 70 Pac. 800; Third Nat. Bank v. Reichert, 101 Mo. App. 242, 73 S. W. 893; Sickles v. Herold, 11 Misc. Rep. 583, 32 N. Y. Supp. 1083; In re Tasker's Estate, 182 Pa. 122, 37 Atl. 924; State Bank of Pittsburg v. Kirk, Appellant, 216 Pa. 452, 65 Atl. 932. It has been held that a defense to a note is established by a showing that it was given to a bank, which parted with nothing on the strength of it, merely to enable an officer to deceive the examiner. Chicago Title & Trust Co. v. Brady, 165 Mo. 197, 65 S. W. Ed. 610. The same rule seems to have been applied in a case decided by the United States District Court for the District of Kansas, in March, 1915 (Yates Center Nat. Bank v. Schaede, 240 Fed. 240), which was affirmed without opinion by the Circuit Court of Appeals (240 Fed. 241) in September, 1916. While no formal opinion was delivered by the trial court, a memorandum, of the decision was made which shows the scope of the decision, but does not affirmatively disclose whether the maker of the note was aware of the use that was to be made of it. It reads: "This is an action by plaintiff, an insolvent national banking association, now in the hands of a receiver, to recover from defendant the contents of a promissory note for the sum of $1,500 made by the defendant to the bank. The note in controversy is one of a series of renewal notes made by defendant at the solicitation of the president and general managing officer of the bank. It is the first of a series of like transactions engaged in by the president of the bank to conceal his defalcations in the bank, and the true financial condition of the bank, with paper apparently good, but in fact obtained without consideration, for the purpose of deceiving the Comptroller of the Currency or those whose duty it was to examine into the affairs of the bank, by giving it a false appearance of solvency. The defense interposed is want of consideration. Not only is this defense made out, but it further appears that the whole transaction, from the making of the original note to the renewal in controversy, was without consideration, and in pursuance of the illegal and criminal design of the president of the bank. Such state of facts public policy and good morals alike condemn, in degree only from that of Plaintiff v. Lauber, and courts refuse to enforce. This case differs 240 Fed. 237, and Cutler, Receiver, v. Fry, 240 Fed. 238, this day determined. It follows, judgment must go for the defendant." The present case is distinguishable from those just referred to on the ground, already stated, that here there was a consideration for the note, and the bank parted with its money on the strength of it. Notwithstanding any expressions of a contrary tendency in the cases cited, we are satisfied that at least where there is no want of a valid consideration, and the note was not in legal contemplation given for the accommodation of the bank, the maker cannot defeat its payment by showing that with his knowledge it was intended to mislead the examiner as to the bank's condition or securities. The rule that an agreement in contravention of a statute, or of public policy, will not be enforced at the instance of either party, does not apply. The statute limiting the amount a bank may lend to one person operates for the protection of the stockholders and the public, as well as the depositors. It is the agreement that the defendant was not to be liable on the note, rather than the making of the note itself, that is objectionable as defeating the purposes of the banking act. The defendant, not the plaintiff, invokes it. To give effect to an understanding that a note executed to show compliance with the law should not be collected would be to counte- rendered unavailable by what has already nance, rather than repudiate, the arrangement been said. for evading the statute, and would tend to defeat its object and to injure the persons for whose benefit it was enacted. In that situation the rule referred to has no application. The evidence tended to show a slightly The judgment is affirmed. All the Justices concurring. (100 Kan. 116) DUNNING v. POSTEN et al. (No. 20710.) (Supreme Court of Kansas. March 10, 1917.) (Syllabus by the Court.) 1. JUDGMENT 552-MERGER AND BAR-AT TACHMENT-INTERPLEADER-PERSONS BOUND. A judgment on an interplea filed in an atCode of Civil Procedure (Gen. St. 1909, § 5638) tachment proceeding under section 45 of the is binding on the interpleader and on the parties to the action, and is a bar to another action by the interpleader for the recovery of the possession of the property in controversy. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 997.] 2. JUSTICES OF THE PEACE 125(4)—DOCKET ENTRY-JUDGMENT For Costs. different state of facts from that alleged in the portion of the answer quoted. The pleading indicates that the original note, of which that sued on is a renewal, was given at the inception of the relations between the bank, the defendant, and Blitz. The evidence is to the effect that at the instance of the president of the bank the defendant made or procured to be made various loans to Blitz, with the understanding that the bank was to take them up at any time; that in pursuance of this agreement the defendant asked that they be taken up; that this was done, the bank paying off the existing notes, and taking in exchange one signed by the defendant as well as one signed by Blitz, for the reason that it was already carrying all the Blitz paper it could. The evidence varied from the answer only in details. What has already been said as to the insufficiency of the defense pleaded applies as well to that undertaken to be shown by the evidence. The evidence as well as the pleading showed that Action by R. M. Dunning against W. H. there was a valid consideration for the de-Posten and others. Judgment for the other fendant's note, that in legal contemplation defendants, dismissing as to defendant PostBlitz was the person for whose accommodaen, and plaintiff appeals. Affirmed. tion it was made, and that its purpose was to enable the bank to make a loan which otherwise would be forbidden. An entry on the docket of a justice of the peace as follows: "Demurrer to evidence filed by plaintiff, N. M. Bisel. Court sustained demurrer, and rendered judgment against claimant for costs"-shows that judgment was rendered against the claimant for costs. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 397.] Appeal from District Court, Johnson County. Riling & Riling, of Lawrence, for appellant. B. V. Pardee and J. B. Wilson, both of Lawrence, for appellees. MARSHALL, J. This is an action to recover specific personal property. Judgment was rendered against the plaintiff and in favor of the defendants Roundtree and Bisel on their motions for judgment on the pleadings. The plaintiff appeals. The plaintiff's pleadings consisted of an ordinary petition and affidavit in replevin. The action was dismissed as to defendant W. H. Posten. Defendants Roundtree and Bisel fil [4] 4. The answer set out that the bank had extended the time of payment of the Blitz indebtedness without the defendant's consent, and also that it had voluntarily surrendered to Blitz certain property which it held as collateral security for the loan. Neither allegation constituted a defense, so that it is immaterial whether the evidence tended to support them. Under the uniform negotiable instrument act, the defendant was primarily liable, since by the terms of the note he had signed he was absolutely required to pay it. Gen. Stat. 1915, § 6523. His posi-ed separate answers. tion was not more favorable than if he had signed a note as surety for Blitz, and in that case he would not have been released by the granting of an extension of time to his principal. Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429. The reasoning by which that conclusion is supported is not completely applicable where security has been surrendered to the principal, but the same rule has been applied to that situation. 8 C. J. 620. In the statutory enumeration of the methods by which a note may be discharged, which obviously is intended to exclude any not mentioned, no reference is made to the surrender of security. Gen. Stat. 1915, §§ 6647-6653. The pleading and evidence with respect to the note for $280 presents no defense not Each of these answers disclosed the following facts: That on September 9, 1915, defendant Bisel commenced an action on a promissory note before defendant Posten, a justice of the peace, against 0. H. McQuary, Jr., and Minnie Alta McQuary, for the recovery of $152.62; that summons was served and an order of attachment was issued on September 10, 1915; that the order of attachment was levied on the property in controversy in the present action; that on September 16, 1915, R. M. Dunning, the plaintiff in the present action, filed an interplea in the action before the justice of the peace, in which interplea the plaintiff, Dunning, alleged that he was the owner of the property in controversy and prayed that the attachment be dissolved and that he be given possession of the property; that the action before the | 281; Meegan v. Pettibone-Gentry Co., 85 justice of the peace was tried as to all par- Kan. 536, 538, 118 Pac. 64. "Demurrer to evidence filed by plaintiff, N. M. Bisel. Court sustained demurrer, and rendered ties on September 16, 1915; that the plain- [2] 2. The plaintiff insists that no judgtiff, Dunning, introduced evidence to establishment was rendered against him by the justhe allegations of his interplea; that defend- tice of the peace, and that, for that reason, ant Bisel demurred to that evidence; that the the proceeding before the justice of the peace demurrer was sustained by the court, and is not a bar to the prosecution of this acjudgment was rendered against Dunning for tion. The language used by the justice of the costs; and that judgment was rendered peace in his transcript is as follows: against O. H. McQuary, Jr., for $169.10 and costs. No reply was filed in the present action to the answer of either of the defendants. [1] 1. The plaintiff contends that his proceeding before the justice of the peace was under section 152a of the Justices' Civil Code (Gen. St. 1909, § 6519), while the defendant argues that the plaintiff's interplea was filed under section 45 of the Code of Civil Procedure (Gen. St. 1909, § 5638). Section 152a of the Justices' Civil Code in part reads: judgment against claimant for costs." That language clearly and conclusively shows that the plaintiff's claims to the ownership of the property were decided against him, and that judgment was rendered against him for costs, which was the only judgment that could have been rendered against Dunning in that action. The judgment is affirmed. All the Justices concurring. "When a constable shall levy on or attach property claimed by any person or persons other than the party against whom the execution or attachment issued, the claimant or claimants shall give three days' notice in writing to the RICARDO v. CENTRAL COAL & COKE CO. attachment or execution creditor, his attorney or et al. (No. 20689.) his agent, *** of the time and place of the (100 Kan. 95) trial of the right to such property, which trial (Supreme Court of Kansas. March 10, 1917.) shall be had before some justice of the township, at least one day prior to the time appointed for the sale of such property." Under the facts disclosed by the pleadings in the present case, the notice provided for in this statute was not given. Section 45 of the Code of Civil Procedure reads: "Any person claiming property, money, effects or credits attached as the property, money, effects or credits of another, may interplead in the cause, verifying the same by affidavit made by himself, agent or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant and without any unnecessary delay. In all cases of interpleader, costs may be adjudged for or against either party, as in ordinary cases." (Syllabus by the Court.) 1. MASTER AND SERVANT 118(2)-PLACE OF WORK TRAVELING WAY"-STATUTE. The whole of the room in which a coal miner works while mining coal and while pushing cars used by him in his work is the miner's working place; and no part of it is a "traveling way" within the meaning of section 6276 of the General Statutes of 1915. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 209. For other definitions, see Words and Phrases, Second Series, Traveling Way.] 270(15)—ACTION 2. MASTER AND SERVANT [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 925.] 293(4)-ACTION 3. MASTER AND SERVANT A coal miner who is directed to work in a room that has been partially worked out by another miner may be employed to prop the room and make it safe before he commences to mine the coal therefrom; and where there is evidence tending to show such employment, an instruction should be given submitting the question of such employment to the jury. In his interplea, the plaintiff, Dunning, claimed the property attached. The property was of the kind described in section 45 of the Code of Civil Procedure. The instrument filed was denominated "Interpleader of R. M. Dunning." It was verified by R. M. Dunning. It was tried at the same time, and presumably in the same manner, as the issues between the plaintiff and the defendant in the action before the justice of the peace were tried. The instrument filed by Dunning did not comply with any of the provisions named in section 152a of the Justices' Civil Code, but did comply with all of the requirements of section 45 of the Code of Civil Procedure. It must be held that the plain- (Additional Syllabus by Editorial Staff.) tiff, Dunning, did interplead under that sec- 4. WORDS AND PHRASES "AIR COURSES" tion, and that he must abide all the conse- "ENTRIES"-"ROOM"-"TRAVELING WAYS." quences following the trial of his interplea."air courses" are passages for conducting air; As applied to the operation of coal mines, Those consequences are that the plaintiff, "entries" are those places in coal mines used by Dunning, is bound by the judgment rendered by the justice of the peace on that interplea, and cannot maintain another action for the recovery of the property. James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 555, 9 Pac. - the miners and other workmen generally in go- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for the passage of workmen to and from differ- [utes of 1915? This question was presented ent parts of the mine. to the trial court by a demurrer to the plain[Ed. Note.-For other definitions, see Words tiff's evidence and by requested instructions. and Phrases, First and Second Series, Room.] The defendant requested the following instructions: Appeal from District Court,. Cherokee County. Action by Remigi Ricardo against the Central Coal & Coke Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and new trial directed. "The jury is instructed that a traveling way in a coal mine worked on the room and pillar basis is that part of the mine in which the decavations or subterranean passageways where fendant company has driven underground exthe coal has been removed and a sufficient amount of the brushing consisting of slate, rock, and other material forming the roof over the coal have been removed, and upon which traveling way, subterranean passage, or underground road coal is hauled by mules or by motor power and over and upon which the men and employés of the defendant company travel to and from their work. "You are further instructed that a room turn MARSHALL, J. The defendant appeals from a judgment rendered against it for dam-ed off a traveling way, entry, or subterranean ages for personal injuries to the plaintiff. The evidence tended to show the following facts: That the defendant operated a coal mine in which the plaintiff was employed as a miner, and in which he was injured; that the mine was located in Cherokee county, and was operated under the shaft, entry, room, and pillar plan or system; that the plaintiff was put to work in a room that had been partially worked out by another miner; that at the time the plaintiff went to work the room had been driven from 40 to 75 feet from the entry, at a width of about 20 feet and at a height of about 3 feet; that the room was not brushed; that it had no break-throughs or crosscuts; that there was no way to get into the room except through the neck from the entry; that there was a track for cars about 4 feet from the left side of the room, running from the entry to the face of the coal; that about three days before the plaintiff went to work the roof of the room had been propped by the miner who worked in it before the plaintiff did; that on the day the plaintiff went to work he examined the room, concluded that the roof was bad, and complained to the mine boss about its condition; that the mine boss promised to send in props, and a timberman to fix the roof; that before the plaintiff went to work he found some props and set them so that he could work in the face of the coal; that he drove the room 8 or 9 feet; that the plaintiff was injured by a rock which fell from the roof 8 feet from the face of the coal, in that part of the room from which the coal had been taken before the plaintiff began work. The plaintiff's petition set out two causes of action, one for failure to comply with the statute requiring the defendant to see that, as the miners advanced their excavations, all loose coal, slate, and rock overhead are carefully secured against falling in upon the traveling ways, and the other for failure to provide for the plaintiff a reasonably safe place in which to work. [1] 1. Was the place where the plaintiff was injured a traveling way within the meaning of section 6276 of the General Stat passage where the coal has been removed by the men or miners working in the mine is not a traveling way, but is the working place of the miner or miners employed by the defendant company to work therein." On this question the court gave the following instructions: "The chief inquiries for you to make in this case are: Was the plaintiff injured in his working place or in the traveling way leading to and from his working place? "By the allegations in the petition in this case and the nature of the negligence set out some of the sections of our statutes are involved, and in so far as they are applicable to this case, read as follows: 'In order to better secure the proper ventilation of every coal mine and promote the health and safety of the persons employed therein, the owner, agent or operator shall employ a competent and practical inside overseer, to be called "mining boss," who shall keep a careful watch over the ventilating apparatus, the air ways, traveling ways, pumps and pump timbers and drainage, and shall see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling ways.' Gen. St. 1915, § 6276. And still another section reads as follows: For any injury to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action against the party at default shall accrue to the party injured for the direct damage sustained thereby.' Gen. Stat. 1915, § 6280. "Webster defines travel to mean 'to journey over; to traverse; the act of traveling from place to place.' The same authority defines way to mean 'that by, upon, or along which one passes or progresses, opportunity of room to pass; place of passing; passage; road; street; track or path of any kind.' "So I instruct you that under the words 'trav eling ways' under the statutes in this state and in these instructions mean a place habitually and necessarily used by a miner or by the miners in a coal mine to travel upon or through in going to and from his or their working place or places." Several cases more or less directly involv ing this statute have been decided by this court. In Barrett v. Dessy, 78 Kan. 642, 97 Pac. 786, a miner was injured at the junction of his room with the entry while shoveling coal into a car standing on the track op posite his room. There this court said: "If in making the excavation through the horseback the rock over the entry which fell |