said firm in their said business, and that the proceeds arising from the sale of stock should be remitted to said bank, to reimburse it for paying such checks, and this was repeatedly done. At the time the checks sued on were presented for payment and protested, the Chanute Bank was owing to the partnership of Nooner & Gibson, upɔn account of money coming to them from the sale of the stock bought at Humboldt by Nooner, the sum of $700.22, and said bank knew that the money belonged to Nooner & Gibson as proceeds arising from their partnership business. These facts were found by the jury upon the questions submitted to them. The Chanute National Bank refused to pay these checks, and applied the money to the payment of an individual indebtedness owing to it by Nooner, which had been contracted prior to the partnership transactions referred to. J. L. Denison, for plaintiff in error. C. A. Cox and E. A. Barber, for defendants in er ror. DENNISON, P. J. (after stating the facts). The plaintiff in error questions the right of the check holders to maintain the action against the drawee of the check, and cites paragraphs 484-488, Gen. St. 1889, which provides that no person shall be charged as an acceptor of a bill of exchange unless his acceptance be in writing, etc. It seems to us clear that the bank cannot be charged as an acceptor. On the contrary, it refused to accept the checks, and protested them. If the bank is held liable, it must be for the reason that it is in possession of a fund which, in equity and good conscience, it ought to apply to the payment of the checks, and because it had agreed with Nooner & Gibson that it would pay the checks either of them gave for partnership stock. The bank had agreed with Nooner & Gibson that it would pay the checks drawn by either member of the firm in their business, and would be reimbursed by the remittance of the proceeds of the sale of stock. It had received the proceeds of the sale of the stock for which the checks were given, and knew that it belonged to the partnership of Nooner & Gibson. It is contended by the defendants in error that the check holders may maintain an action against the bank because the bank promised Nooner & Gibson that it would pay said checks from the remittances. We are cited to the case of Anthony v. Herman, 14 Kan. 494, and many other decisions of our supreme court which hold that "a person may maintain an action upon a contract made by another for his benefit, although he was not a party to the contract." We think this transaction fairly comes within the rule. The Chanute National Bank contracted to pay the checks which either Nooner or Gibson gave for the purchase of stock in their partnership business. The remittances from the sales of the stock were the consideration received for the promises. The contract was made for the benefit of any one who sold either Nooner or Gibson stock in their partnership business, and thereby became the holder of a check upon said bank signed by either of them. Besides this, the bank had the funds, which it knew were funds of the partnership; and, in equity and good conscience, it ought to have paid the checks given for the partnership stock which was sold to procure the remittance then in their hands. The check holders can maintain this action. We base our decision upon the grounds just stated. We do not decide whether a check holder can maintain an action against the drawee of an unaccepted check. The United States courts and the supreme courts of many of the states have decided that he cannot maintain such an action. On the other hand, many of the best text writers and the supreme courts of many of the states hold that such an action can be maintained. So far as we are able to ascertain, our supreme court has not passed upon this question. Where there are so many acceptable authorities upon each side of a question of so much importance as this one, we think it better that the supreme court should first indicate which line of authorities it will adopt, especially as it is unnecessary for us to pass upon the question in reviewing the errors assigned in this case. The plaintiff in error questions the sufficiency of the assignment to Crowell by the other check holders. We not only think the assignment is sufficient, but we think the best interests of the plaintiff in error were served by having the matter litigated in one suit. The judgment of the district court is affirmed. All the judges concurring. (6 Kan. App. 561) KANSAS & C. P. RY. CO. v. CURRY. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 22, 1897.) DIVISIBLE CONTRACT-MEASURE OF DAMAGES. A contract to issue, or procure the issuance of, an annual pass, to be renewed from year to year during the pleasure of the promisee, is a divisible contract, and the measure of damages for the breach thereof is the value of the transportation to such promisee during the years the breach has occurred, and an action may be maintained by the promisee for only such breaches as have occurred at the time of the commencement of the action. (Syllabus by the Court.) Error from district court, Franklin county; A. W. Benson, Judge. Action by Benjamin Curry against the Kansas & Colorado Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Reversed. Waggener, Horton & Orr, for plaintiff in error. Deford & Deford, for defendant in error. DENNISON, P.J. This action was commenced in the district court of Franklin county, Kan., by Benjamin Curry, as plaintiff, against the Kansas & Colorado Pacific Railway Company, as defendant, to recover the damages alleged to have been sustained by said Curry on account of the breach of a contract made by said railway company to furnish hira with an annual pass over the Missouri Pacific Railway system, to be renewed from year to year during the pleasure of said Curry. During the trial of the case the court permitted the introduction of the Carlisle Table of Expectancy of Life, as found in Brand's Encyclopedia of Science, Literatúre, and Art, and other testimony, showing the age of Curry. The court also instructed the jury that "the measure of damages in this case is the value of a pass for the plaintiff over the entire Missouri Pacific system of railroads in the United States from the 1st day of January, 1888, during the probable time of his life in which he would desire it, and until he should cry, 'Enough!" The court erred both in permitting the introduction of evidence and in its instructions, because of this theory of the measure of damages. A contract to issue or procure the issuance of an annual pass, to be renewed from year to year during the pleasure of the promisee, is a divisible contract, and the measure of damages for the breach thereof is the value of the transportation to such promisee during the years the breach has occurred, and an action may be maintained by the promisee for only such breaches as have occurred at the time of the commencement of the action. This doctrine is laid down by our supreme court in Curry v. Railway Co.. 48 Pac. 579. Counsel for the defendant in error contend that the statements of the supreme court upon this point in the above case are obiter dictum. From a careful reading of the opinion, we think otherwise. In either event, it is a correct interpretation of the law. A more complete statement of the facts in these cases is contained in the opinion of the supreme court in Curry v. Railway Co., supra, which is an action upon the same contract sued on in this case, and most of the questions argued in this case are decided there. The others can be corrected by a new trial, which must be ordered. The judgment of the district court is reversed, and the cause remanded for a new trial. All the judges concurring. RAND et al. v. HUFF et al. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 22, 1897.) APPEAL-REVIEW-SUFFICIENCY OF EVIDENCE. There is some evidence tending to prove all the facts necessary to sustain the findings and 51 P.-37 judgment of the district court in this case, and we cannot weigh the evidence to determine whether the preponderance of the evidence is with the plaintiff in error. (Syllabus by the Court.) Error from district court, Miami county; John T. Burris, Judge. Action by Samuel Huff and others against William H. Rand and others, administrators, to quiet title. From a judgment for plaintiffs, defendants bring error. Affirmed. John C. Sheridan, for plaintiffs in error. W. T. Johnston and Carroll & Sheldon, for defendants in error. DENNISON, P. J. This action was commenced in the district court of Miami county, Kan., by Samuel Huff, as plaintiff, against William H. Rand, Catherine Rand, and C. W. Chandler and T. M. Carroll, administrators of the estate of J. F. Chandler, deceased, as defendants to quiet the title in said Huff to a certain tract of land, and, in the event the Rands should be decreed to have any interest in the lands, Huff asks for a judgment against the administrators of J. F. Chandler, deceased, who conveyed said land to Huff by warranty deed. Afterwards an amended petition was filed, asking for a partition of the lands, and judgment against the administrators of J. F. Chandler, deceased. Patrick Kelly and John Ahern afterwards became defendants by consent. The administrators of J. F. Chandler deny that the other defendants have any interest in the land, and ask that the title be decreed to be in Huff, freed from all other claims. The evidence upon the trial established the fact that the land in controversy was entered by John Poland, who conveyed it to his brother, William Poland. William Poland died intestate, in 1865, seised of the land. He left as his only heirs Patrick Poland and the heirs of John Poland, they being his two brothers, and Mary Ann McGowan, and the heirs of Margaret McGrath Kelly, his two sisters. Patrick Poland purchased the interest of all the heirs except some of the heirs of the sister Margaret. It is claimed that the sister Margaret Poland was married to McGrath, by whom she had three children, to wit, John, James, and Mary. Some time after the death of McGrath, Margaret married the defendant below, by whom she had one daughter, Catherine, now the defendant below Catherine Rand. Mary McGrath married the defendant below, John Ahern. She died, and left, besides her husband, one daughter, who died without issue. Patrick Poland purchased the interest of John and James McGrath, but did not purchase the interest of Catherine Rand, Patrick Kelly, or John Ahern. Patrick Kelly testified that he had conveyed his interest in the land to his daughter Catherine Rand. Patrick Poland gave mortgages upon the an. whole tract of land to James McGrath and to John McGrath and to Mary Ann McGowDuring the years 1872, 1873, 1874, and 1875 the taxes upon the land were unpaid, and the land was sold to one Fuller, who procured a tax deed to the land. Patrick Poland brought suit to set aside the tax deed, and have the title to the land quieted in him. The tax deed was declared invalid, and set aside, but Fuller obtained a lien upon the land for the amount of the taxes. Suit was brought to foreclose the mortgages. and a judgment was rendered decreeing that Fuller had a first lien for the amount of the taxes, etc., paid by him. The land was sold by the sheriff under the order of sale, and was purchased by J. F. Chandler. From the time of purchasing the shares of the McGraths and the heirs of his brother, John Poland, and of his sister, Mary Ann McGowan. Patrick Poland was in the exclusive possession of the land, exercising the rights of sole owner thereof. He mortgaged the entire tract of land to the McGraths and Mrs. McGowan. He paid the taxes upon the entire tract, except the four years named. He made improvements upon the land, and collected and retained the entire amount of the rents and profits, to the exclusion of all others. Not only this, he frequently said he was the owner of the entire tract, and had bought out all the heirs. The purchases of the interests from the heirs were made by Patrick Poland in 1871, 1872, and 1873. The petition in this case was filed August, 1890. The court found that "the plaintiff and his grantors have been in the continuous, actual, adverse, visible, notorious, and exclusive possession of said land, and every part thereof, for more than fifteen years previous and prior to the commencement of this action, under a claim of exclusive right and title to said land, and every part thereof." There is some evidence, at least, if not a preponderance of the evidence. to sustain the finding of the court. There is no evidence as to whether Patrick Poland, or those claiming under him, knew of the existence of any of the adverse claimants. There is some evidence tending to show that the possession of Patrick Poland, Chandler, and Huff was so hostile, exclusive, notorious, open, and under claim of title as to raise the presumption that these plaintiffs in error must have had knowledge of such adverse possession. The judgment of the district court must be affirmed. All the judges concurring. (6 Kan. App. 545) ELWELL et al. v. REYNOLDS. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 22, 1897.) ARREST-VOID WARRANT-FALSE IMPRISONMENTLIABILITY OF SHERIFF. 1. A warrant void upon its face confers no authority upon which an officer is justified in making an arrest. 2. An officer cannot apprehend a person under a void warrant which is read to the prisoner as the authority under which the arrest is made, and then, in an action for false imprisonment, be heard to say that he made the arrest upon the information and belief that a felony had been committed, and that the person arrested is guilty of its commission. 3. A sheriff is liable for the acts of his deputy, and if such deputy assists in the arrest of a person under a void warrant, and confines such person in the county jail, the sheriff is liable in an action for false imprisonment. (Syllabus by the Court.) Error from district court, Franklin county; A. W. Benson, Judge. Action by B. F. Reynolds against J. A. Elwell and another. From a judgment for plaintiff, defendants bring error. Affirmed. C. A. Smart and W. S. Jenks, for plaintiffs in error. H. P. Welsh, for defendant in er ror. DENNISON, P. J. This action was commenced by B. F. Reynolds in the district court of Franklin county, Kan., to recover damages against J. A. Elwell and J. R. South, for false imprisonment. The defendant South, in his answer, alleges that he made the arrest of Reynolds under a warrant, of which the following is a copy: "State Warrant. State of Kansas, Coffey County-ss.: The State of Kansas to the Sheriff or Any Constable of Coffey County: Whereas, complaint in writing, under oath, and duly subscribed by the complainant, has been made to me, and it appearing that there are reasonable grounds for believing that on or about the 23d day of September, A. D. 1892, in the county of Coffey and state of Kansas, one person, whose name is to the complainant unknown, one order for $4.00, drawn upon the Coffey County Fair Association, by one J. E. Woodford, secretary, and Orson Kent, president, and payable to one R. E. Jones, and dated at Burlington, Kansas, the 19th day of September, 1892, and indorsed by said R. E. Jones on the back, and by said R. E. Jones sold and delivered to the said Rosa J. Crum, said order being of the value of four dollars of the goods and chattels of the said Rosa J. Crum in the dwelling house of the said Rosa J. Crum there situate, in the possession of the said Rosa J. Crum then and there being, did then and there, in said dwelling house, feloniously steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas: You are therefore commanded forthwith to arrest said person whose name is to this defendant unknown, and bring him before me, at my office, in the city of Burlington, in said county, to be dealt with according to law, and then and there return this writ. In witness whereof, I have hereunto set my hand, this 29th day of September, A. D. 1892, at my office, in said city of Burlington, in said county. H. B. Cheney, Justice of the Peace." The defendant Elwell, in his answer, denies all the allegations of the petition; alleges that he has read the answer of his co-defendant, South, and believes the same to be true; that each step in the proceedings leading to the arrest of the plaintiff, as alleged in the answer of his co-defendant, was advised by the county attorney of Coffey county, Kansas. The defendant Elwell afterwards filed an amended answer, in which he alleges that at the time he arrested the said plaintiff, he was informed and believed that said Reynolds was guilty of the offense charged in the complaint, upon which the warrant was issued, and that he is informed and believes that said plaintiff is guilty as charged as aforesaid. The defendant South also filed an amended answer, in which he also alleges the advice of the county attorney, and his information and belief that Reynolds was guilty of the crime charged in the information aforesaid. After the plaintiff below had introduced his evidence, the defendants offered to prove that the drawing of the complaint and issuance of the warrant were under the advice and direction of the county attorney of Coffey county, and that, at the time South made the arrest, he had reasonable grounds for believing that the plaintiff Reynolds was the party who had stolen the check in question, that the crime had been committed, and that Reynolds was the person who had committed such crime. The court refused to permit the introduction of such evidence. The defendants below offered no other evidence, and the court instructed the jury. Verdict and judgment of $100 and costs against the defendants, who bring the case here for review. The counsel for plaintiffs in error now claim that their liability is governed by the rule applicable to an officer who arrests without a warrant. They argue that, the warrant upon which the arrest was made being void, they had no warrant, and the arrest was therefore made by them without a warrant. The real question is, did the officers have authority to apprehend Reynolds? If they did, the apprehension constituted an arrest of Reynolds, and they are not liable to him for damages. If they did not have authority, the apprehension constituted false imprisonment, and they would be liable to Reynolds for damages. It is admitted that the warrant under which the apprehension was made is void upon its face. It therefore conferred no authority upon the defendants in error by which they can justify their act. The only remaining claim of authority is that the defendants in error were justified in apprehending Reynolds upon the information and belief that a felony had been committed, and that Reynolds is the person who committed it. We cannot assent to the doctrine that an officer can apprehend a person under a void warrant which is read to the prisoner as the authority under which the arrest is made, and then, in an action for false imprisonment, be heard to say that he made the arrest upon the information and belief that a felony had been committed, and that the person arrested is guilty of its commission. If this can be done, no officer could be made liable for false imprisonment. We are aware that at common law an officer may lawfully arrest in some cases without a warrant. We do not hold that it cannot be done under certain circumstances in Kansas. It is contended that J. A. Elwell is not liable in any event. J. A. Elwell was deputy sheriff and jailer, and he read the warrant to Reynolds, and confined him in the jail of Franklin county. The sheriff is liable for the acts of his deputy. The contention that the officers were justified because the county attorney of Coffey county counseled the proceedings is not argued, and is therefore waived. However, it would be no justification for an arrest under a void warrant. The judgment of the district court is affirmed. All the judges concurring. (6 Kan. App. 603) LOWE v. BOARD OF COM'RS OF BOURBON COUNTY. (Court of Appeals of Kansas, Southern Department, E. D. Dec. 22, 1897.) SPECIAL CONSTITUTIONAL LAW TITLE OF ACT 1. Chapter 126, Laws 1895, is not in conflict with sections 16 and 17 of article 2 of the constitution of the state of Kansas. 2. The act contained in chapter 126, supra, contains but one subject, which is clearly expressed in its title. 3. Said act contains the new law as amended, and all other acts relating to the subject are repealed by said section 16 without legislative declaration to that effect. (Syllabus by the Court.) Error from district court, Bourbon county. Action by Eldon Lowe against the board of county commissioners of Bourbon county. Judgment for defendant. Plaintiff brings error. Affirmed. W. R. Biddle, H. A. Pritchard, and C. E. Cory, for plaintiff in error. Dillard & Pad gett, for defendant in error. DENNISON, P. J. This action was commenced in the district court of Bourbon county, Kan., by Eldon Lowe, as plaintiff, against the board of county commissioners of Bourbon county, Kan., as defendants, to recover a balance of salary alleged to be due him as county treasurer. A demurrer was sustained to the petition of the plaintiff, and he brings the case to this court for review. The only question in this case is the validity of chapter 126, Laws 1895. Counsel for plaintiff in error contends that the act is in conflict with the provisions of sections 16 and 17 of article 2 of the constitution of the state of Kansas. Said sections read as follows: "Sec. 16. No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections SO amended shall be repealed." "Sec. 17. All laws of a general nature shall be of uniform operation throughout the state, and in all cases where a general law can be made applicable, no special law shall be enacted." It is contended by the plaintiff in error that chapter 126, supra, is unconstitutional, because-First, it contains more than one subject; second, it seeks to amend prior laws without containing the section or sections amended, and without repealing the section or sections so amended; third, because a general law could have been made applicable. The title to the act reads as follows: "An act fixing the fees and salaries of county treasurer, county clerk, county attorney, probate judge, sheriff, register of deeds and clerk of district court of Bourbon county, Kansas; prescribing a penalty for violations of the provisions thereof, and repealing all acts and parts of acts in conflict therewith." Nothing is contained in the act except what is expressed in this title. There is but one subject contained in this title, and that subject is fees and salaries. This subject is restricted to the fees and salaries of certain officers in a certain county. It fixes salaries, and provides for the collection and distribution of fees, and provides a penalty for its violation. It repeals all acts and parts of acts in conflict therewith, and fixes the time when it shall take effect. Chapter 126, supra, if otherwise valid, repeals by implication the general law so far as Bourbon county is concerned. Board v. Shoemaker, 27 Kan. 77, and authorities therein cited. If it is contended that it attempts to amend chapter 82, Laws 1893, relating to fees and salaries of certain officers in Bourbon county, Kan., the answer must be that the act of 1895 contains the entire law as amended. This being the case, section 16, supra, repeals the law of 1893, even though it be valid, and without any legislative declaration to that effect. Commissioners v. Hudson, 20 Kan. 71; Case v. Bartholow, 21 Kan. 301. "But where the legislature has under consideration not merely minor particulars, but the whole subject-matter of the law, it may wholly an nul all former legislation on the subject, and pass an act covering the entire field, without specifically naming or attempting to amend particular provisions in former statutes. The new act then becomes a substitute for all former legislation on the subject, and may repeal, either in express terms or by neces sary implication, all former sections of the law inconsistent with the new enactment." Aikman v. Edwards, 55 Kan. 764, 42 Pac. 366. There is no force in the contention that this act is in conflict with section 17, art. 2, of the constitution of Kansas. Our supreme court has repeatedly decided this question. See Board v. Shoemaker, supra. In fact, all the questions presented in this case have been decided by the supreme court contrary to the contention of the plaintiff in error. The judgment of the district court is affirmed. All the judges concurring. BURLINGTON NAT. BANK v. SCOTT. (Court of Appeals of Kansas, Southern Denartment, E. D. Dec. 22, 1897.) APPEAL-REVIEW. The record examined. No error appearing, the judgment is affirmed. (Syllabus by the Court.) Error from district court, Coffey county; W. A. Randolph, Judge. Replevin by the Burlington National Bank against L. H. Scott. Judgment was rendered in favor of defendant. Plaintiff brings error. Affirmed. J. I. Wolfe, for plaintiff in error. G. E. Manchester, for defendant in error. PER CURIAM. This was an action in replevin, brought by the plaintiff in error to recover possession of a car load of oats, of the value of $156.65. The case was tried in the district court of Coffey county, to a jury, and resulted in a judgment for defendant. The plaintiff brings the case here for review. We have examined the record. No error appearing requiring a reversal or modification of the judgment, it is therefore affirmed. |