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v. Butcher, 22 Kan. 400, 404, and cases there cited; Kane v. Cook, 8 Cal. 449; Ang. Lim. $ 179 et seq.; 7 Wait, Act. & Def. 238.

We hardly think it is necessary to discuss any of the other questions suggested by counsel in this case. Many of the alleged errors were really not errors; one of them which were possibly errors were not material, and others were not properly saved.

Taking the whole case together, we think no material error was committed, and substantial justice was done.

The judgment as finally rendered by the court below was in favor of the plaintiff and against the defendant, for the recovery of $50 and costs; and this judgment will be atfirmed.

(All the justices concurring.)

PERBY v. Wada.

Filed February 7, 1884.

In an action for the wrongful and fraudulent conversion of a house, it appeared that in April, 1878, the plaintiff, W., who did not reside in Kansas, by a deed of conveyance from her father, executed just before his death, became the owner of a house and lot in Cherokee, Crawford county, Kansas. Soon thereafter the defendant, P., became her agent for the management and control of such property. About November, 1878, he sold the house

and allowed it to be removed from the premises, and never accounted to the plaintiff for the house or the proceeds thereof, and never paid her anything therefor, but at all times concealed from her the existence of the house and the sale thereof, and by his representations led her to helieve that no house had ever existed on the lot, but that the lot was vacant and unoccupied ; and she had no knowledge of the existence of the house or the sale thereof until about the time when this action was commenced, which was on May 26, 1882. Held, that the action is not barred by the statute of limitations; that the action comes within that provision of subdivision 3, $ 18, of the Civil Code, which provides, with regard to an action for relief on the ground of fraud, the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."

Error from Crawford county.

John T. V088, for plaintiff in error.

D. B. Van Syckel, for defendant in error.

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VALENTINE, J. This is a companion case with that of Perry v. Smith, ante, 784, just decided; and the principal question involved in this case, as was in that, is whether the plaintiff's cause of action is barred by the statute of limitations or not; and the questions involved in this case, both with regard to the law and the facts are equally as difficult as were those in that case. As stated in that case, some time in April, 1878, Mrs. Josephine Wade, then Josephine Taylor, by a deed of conveyance from her father, became the owner of a half of a certain town lot, with a little house thereon, situated in the town of Cherokee, in Crawford county, Kansas; and by reason of a sale of such house by E. A. Perry and a failure on his part to account therefor to Miss Tay. lor, now Mrs. Wade, a lawsuit was instituted by her against him for the resulting damages. That lawsuit is this present action. This action is for the alleged wrongful and fraudulent conversion of said house, by Perry, together with the wrongful and fraudulent conceal. ment of all the facts by him from her, and misleading her with reference thereto, to her damage in the sum of $50. Judgment was rendered in the court below in favor of Mrs. Wade and against Perry for the sum of $35 and costs, and Perry, as plaintiff in error, now seeks to reverse such judgment by this proceeding in error.

The theory upon which Mrs. Wade founds her right of action in this case is as follows: She claims that in 1878, the defendant, Perry, was her agent for the management and control of all her property in Kansas, which included said lot with the house thereon; that about the month of November, 1878, he sold the house and allowed it to be removed from the premises; that the house was of the value of about $50; that Perry never accounted to her for the house or the proceeds thereof, and never paid her anything therefor, but at all times concealed from her the existence of the house and the sale thereof, and by his representations led her to believe that no house had ever existed on the lot, but that the lot was vacant and unoccupied; that she had no knowledge of the existence of the house or of the sale thereof until about the time when she commenced this action, which was on May 26, 1882; and that just prior to the commencement of this action she demanded a settlement and a payment for the house, and that Perry refused to do either.

The defendant, Perry, defended the cáse upon various theories, the principal of which are as follows: (1) He claims that he was never the agent of the plaintiff. (2) That the house at all times was personal property, and therefore did not become the property of the plaintiff by virtue of the said deed of conveyance from her father, and therefore did not belong to her. (3) That prior to the sale of the house,-which Perry claims was not until the spring or summer or fall of 1879,--and while the house was still standing on the lot, and on January 24, 1879, the plaintiff sold and conveyed the lot to one Edwin Berry, and that when the house was sold by Perry, which, as he claims, was in the spring or summer or fall of 1879, it was sold as the property of Berry and not as the property of the plaintiff. The defendant admits that when the house was sold he sold it. (4) And the defendant further claims that, upon every theory of the case, any supposed cause of action which the plaintiff might claim to have against him is barred by the statute of limitations. The action, as heretofore stated, was commenced on May 26, 1882.

The principal disputed points in the case are as follows: (1) Was the defendant the agent of the plaintiff for the management and con

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trol of her property? (2) Was the house sold prior to the execution of the deed of conveyance by the plaintiff to Edwin Berry on January 24, 1879, or not? Evidently, from the verdict rendered in the case, the jury found that the defendant was such agent, and that the house was sold prior to the execution of said deed of conveyance to Berry. With reference to the question whether the defendant was such agent or not the evidence is weak, and to some extent conflicting. It appears that shortly after the death of the plaintiff's father, the plaintiff and the defendant entered into a correspondence with reference to her property in Kansas, she at the time residing at Stewartsville, Indiana, and he at Cherokee, Kansas; and from that time on he attended to all her business with respect to her property in Kansas, so far as any attention was given to it, until after it was all sold; and, when he sold the house, he told the purchaser (so the purchaser testified) that he was selling it as the agent of Taylor, and the plaintiff's name at that time was Josephine Taylor. There is still some other evidence tending to show that the defendant was acting as the agent of the plaintiff at the time the house was sold; but we do not think that it is necessary to set it forth in this opinion. Upon the question as to whether the house was sold before or after the execution of said deed from the plaintiff to Berry, the evi. dence was conflicting; but there was ample evidence to sustain the verdict of the jury.

Upon the entire case, we think we must assume that the facts are such as the plaintiff claims them to be. And upon such facts, is the plaintiff's cause of action barred by any statute of limitations? We think not. We think that this case comes under that provision of subdivision 3, § 18, of the Civil Code, which provides, with regard to "an action for relief on the ground of fraud, the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” And, as some authority for this, see the last sentence in the opinion in the case of V088 v. Bachop, 5 Kan. 59, 69. The "section 22 of the Code” there referred to, and wbich section was then in force, is section 22 of the Civil Code of Kansas, enacted in 1859; and it is exactly identical with şubdivision 3 of section 18 of the present Civil Code. See, also, the authorities cited in the case of Perry v. Smith, ante, 784.

We think the case of Howk v. Minnick, 19 Ohio St. 462, referred to by counsel for defendant in error, has no application to this case. In that case it does not appear that any relation of trust or confidence ever existed between the plaintiff and the defendant, while in this case such a relation did exist. That case was purely one of tort, and had not the slightest or most remote connection with any contract or with any relation founded upon contract. While this case, though founded upon tortious acts, the acts themselves were in violation of a contract of agency, and in violation of a relation existing between a principal and agent. Of course, the mere concealment of a cause of action, or the

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concealment that a cause of action had ever accrued or ever had any existence, does not of itself bring the case within the above-quoted provision of subdivision 3, § 18, of the Civil Code; nor does it prevent the statute of limitations from running. There must generally be something more than mere concealment. But in this case there was not only concealment, but, according to the verdict of the jury, there was also fraud and a breach of trust and confidence before, at the time, and after the sale of the house and the conversion of the proceeds. We think substantial justice was done in this case, and no material error was committed.

The judgment of the court below will be affirmed. (All the justices concurring.)

LYON v. MARTIN and others.

Filed February 7, 1884.

1. The mere incorporation in a note otherwise negotiable of a waiver of all relief from appraisement, stay, exemption, and homestead laws, does not destroy its negotiability.

2. Where a negotiable note appears properly indorsed by the payee and the indorsement is without date, the presumption of law is that it was so indorsed before maturiiy, and that the plaintiff in an action thereon is a bona fide holder, and this presumption is not overthrown by matters which at best do no more than create a suspicion : As, for instance, that the counsel of the plaintiff is also the counsel of the pavee in other actions, that the general collecting agent of the payee is a witness for plaintiff on the trial, there being no showing as to how he came to be a witness, or that he was not regularly subpoenaed, or that the plaintiff when he indorsed ihe note to a bank for collection waived protest both for himself and the payee.

3. Where, on a sale of a self-binding harvester, an express warranty is given that the machine is well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day, and on a subsequent trial an effort is inade to show a breach of this warranty, it is improper to receive testimony to the effect that the general design of the machine is wrong; but the testimony must be limited to the actual condition of the particular machine and its capacity for doing the work. If it appears, however, that this machine failed to do the work warranted, it is competent as tending to show that it was properly handled to prove that other machines of like make and in the hands of other parties familiar with such machinery also failed to do the work.

Error from Barton county.

Wm. H. Dodge and E. B. Sherman, for plaintiff in error.

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Maher & Osmond, for defendant in error.

BREWER, J. This was an action on two promissory notes for $100 each-one due December 1, 1979, and the other December 1, 1980. The first of these, with the indorsements, the other being similar in form, reads as follows:

“$100.

GREAT BEND, Kan., May 27, 1878. 83,004. "For value received, on or before the first day of December, 1879, we, or either of us, promise to pay to the order of D. M. Osborne, & Co. the sum of one hundred dollars at the office of G. H. Hulme, in Great Bend, Kan., with interest at ten per cent. per annum from July 1st until paid; and if suit be commenced for the collection of this note, ten per cent. to be added as attorneys' fees; and the undersigned waive all relief from valuation, appraisement, stay, exemption, and homestead laws. For the purpose of obtaining the property for which this note is given, I, M. H. Martin, hereby certify that I own in my own name 160 acres of land in section 19, town 19, 13 W., county of Barton and state of Kansas, with 80 acres improved, and the whole is worth $2,000, which is not incumbered by mortgage or otherwise, except $600, and I own and have on said land $600 worth of personal property over and above all indebtedness. [Signed]

“M. H. MARTIN. [Seal.]” On the back of the foregoing note appear the following guaranty and indorsements:

“For value received, I hereby guaranty the — of the within note, at maturity or any time thereafter, and waive demand, protest, and notice of non-payment thereof. [Signed]

"G. H. HULME. “Pay to the order of James Lyon. [Signed]

"D. M. OSBORNE & Co.

"By J. H. OSBORNE, Sec'y.

"Pay to the order of J. V. Brinkman & Co., for collection and remittance, and for value received, I hereby waive demand, protest, and notice of non-payment of within note as well for myself as for the prior indorsers. [Signed]

"JAMES LYON."

The case was tried before a jury, and verdict and judgment were in favor of defendants, and plaintiff alleges error. The first question presented is as to the negotiability of these notes. The district court held that they were, and the ruling was correct. The only point made is that the note contains a waiver of all relief from valuation, appraisement, stay, exemption, and homestead laws. But this does not destroy the negotiability. Zimmerman v. Anderson, 67 Pa. St. 421; 1 Daniel, Neg. Inst. $ 61. In this section the author thug states the rule: "The principle is becoming established that if the note is in itself certain and perfect without conditions, and there is merely superadded the provision or declaration that the payee or

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