individual liability of stockholders.

one were also stockholders of the other, in the absence of fraud and misrepresentation, is indisputable; nor would the fact that the two corporations had substantially the same directors, who were the active agents negotiating the contract, render it void,-at worst, only voidable, but subject to ratification."

For all other purposes the bank continued to be a corporation, in the eye of the law, and creditors had a right to sue the bank in its corporate capacity." Its suspension of business for more than a year did not render the directors or officers of the corporation powerless to act in matters concerning the payment of its debts and making evidence of the same by the execution of notes. The claim that an extension of the time of payment of the note by the bank when it took the renewal obligation released the stockholder from his statutory liability on a judgment for that debt is not tenable. We are not satisfied that the stockholders stand in such relation to the corporation as to entitle them to that favor and strict construction of their contracts which is accorded to sureties. In any event, the mere extension of time of payment will not discharge a surety. There must be a valuable consideration paid. Jenness v. Cutler, 12 Kan. 500, and cases cited therein.

Defendants in error contend that the corporation has assets subject to execution. This we cannot consider, in contradiction of the return of the execution nulla bona. In Thompson v. Pfeiffer, supra, it is said: "In the absence of fraud on the part of the sheriff, we think that the truth of the return, 'No property found,' on an execution, cannot be contested in an action brought to charge a stockholder of a corporation with the statutory liability." The fact that the plaster company and the bank may have had common officers or directors cannot affect the right of one corporation to sue the other to recover a bona fide indebtedness. They had authority to contract with each other, and, in the absence of fraud, such contracts were binding. Barr v. Railroad Co., 125 N. Y. 263, 26 N. E. 145; Manufacturers' Sav. Bank v. Big Muddy Iron Co., 97 Mo. 38, 10 S. W. 865; San Diego, O. T. & P. B. R. Co. v. Pacific Beach Co., 112 Cal. 53, 44 Pac. 333. In the case last cited it is held: "The mere fact that two contracting corporations have common directors does not render the contract between the corporations invalid, or incapable of ratification, where there is no actual fraud alleged or found, and where the contract is within the chartered powers of both corporations." In Leavenworth County Com'rs v. Chicago, R. I. & P. Ry. Co., 134 U. S. 688707, 10 Sup. Ct. 715, it is said: "Notwithstanding this commingling of officers, the corporations were distinct corporations. They had a right to make contracts with each other in their own corporate capacities, and they could sue and be sued by each other in regard to these contracts; and the question is not, could they do these things? but, have the relations of the parties-the trust relations, if indeed such exist-been abused to the serious injury of the Southwestern Company?" In Coe v. Railroad Co., 52 Fed. 531-543, it is said: "That the East & West Railroad Company could lawfully contract with the Cherokee Iron Works, although all of the stockholders of the

The court below permitted the widest inquiry touching the good faith and consideration of the indebtedness of the plaster company to the bank, and we can discover nothing of a fraudulent nature concerning it either in its inception or in the efforts made by the bank towards its collection. We have examined into other questions discussed in the brief of the defendants in error, but fail to find where they have been prejudiced by the rulings of the trial court. The judgment of the court of appeals will be reversed, and the judgment of the district court affirmed. All the justices concurring.

(60 Kan. 481)

CITY OF KANSAS CITY v. McDONALD. (Supreme Court of Kansas. May 6, 1899.) MUNICIPAL CORPORATIONS ORDINANCE-REASONABLENESS-NEGLIGENCE-DEATH OF FIREMANOBSTRUCTIONS IN STREET- LIABILITY OF CITY -REMARKS OF COUNSEL.

1. An ordinance making it a misdemeanor for any person intentionally to ride or drive any horse, mule, or other beast faster than an ordinary traveling gait in any of the streets of the city is unreasonable, when sought to be applied to the fire department in driving to a fire, and for that reason will not be enforced.

2. The fact that a city, having a paid fire department, procured an accident policy for one of its firemen, under the provisions of chapter 363, Laws 1895, and that the amount of the policy was paid to the widow of said fireman after his death, is no defense to an action brought by her, under section 422 of the Code (Gen. St. 1897, c. 95), against said city for its negligence in causing said death.

3. In an action against a city for negligently allowing an obstruction, such as a pile of rocks, to remain in a street unguarded and without lights or other warnings to travelers thereon, by reason of which an accident occurred, it is competent to show that other obstructions not alleged in the petition narrowed the roadway, and also the condition of the street, together with all the surroundings at the time and place of the accident.

4. A mere exception to the language of counsel in argument to the jury, not preceded by any ruling of the court, is insufficient to raise a question as to the propriety of the language used.

5. Rules of a fire department requiring its members to drive in the middle of the street when going to a fire are made for the safety of the men, teams, and vehicles; and a driver of a hook and ladder truck is charged with the use of no greater care and precaution for his safety by such rule than he would be if such rule did not exist.

6. Cities are required to keep and maintain their streets in reasonably safe condition for public travel, and are held to as great a degree of care towards a fireman driving over the same in discharge of his duties as they are to any other traveler.

7. Persons constructing buildings abutting on a street have, in the absence of express permission from the city, the right to use temporarily a portion of the same for the deposit of necessary building material. Such use, however, be

ing exceptional and foreign to the purposes for which the thoroughfare was laid out and maintained, the city must exercise vigilance, to the end that no traveler is harmed by such encroachment.

(Syllabus by the Court.)

Error from court of common pleas, Wyandotte county; W. G. Holt, Judge.

Action by Nellie McDonald against the city of Kansas City. Judgment for plaintiff. Defendant brings error. Affirmed.

T. A. Pollock and F. D. Hutchings, for plaintiff in error. Angevine & Cubbison, for defendant in error.

SMITH, J. Nellie McDonald recovered a judgment in the court of common pleas against the defendant below, for $7,500, by reason of the wrongful acts, neglect, and default of the city in causing the death of her husband. Andrew J. McDonald was a member of the fire department of Kansas City, Kan., and the driver of a hook and ladder wagon. On the night of August 10, 1896, in responding to an alarm of fire in the south part of the city, while driving at a high rate of speed, the truck upon which he was riding ran against and upon an obstruction in the roadway, consisting of a pile of rocks from 18 inches to 2 feet high and 40 feet long, extending into the street about 12 feet from the west curb. The violence of the collision threw McDonald forward upon the rocks, and he was instantly killed. William Clarke, captain of the truck, was riding with McDonald at the time of the accident. The obstruction mentioned was in front of some houses then building, and the rock was for use in their erection. There was at the time an ordinance of the city in force providing that persons engaged in the construction of any building might occupy so much of the street in front thereof necessary for the purpose of depositing material for use in its construction, not over one-third of the width of the street to be so occupied. It was alleged in the petition that, by the passage of said ordinance, the city wrongfully and negligently authorized persons to obstruct the street, including South Seventh street at the place where the accident occurred, with earth, sand, gravel, stones, etc., without requiring them to place thereon guards, lights, or other danger signals to warn persons passing of the existence of such obstructions. The defendant city, among other things, pleaded in defense an ordinance as follows: "Any person who shall intentionally ride or drive any horse, mule, or other beast faster than an ordinary traveling gait in any of the streets, avenues or alleys within the city, or so drive as to endanger the safety of others, or who shall so ride or drive as to be likely to cause other teams to be frightened or run away, shall upon conviction thereof be fined in any sum not exceeding $100."

The court below sustained a demurrer to that paragraph of the answer which pleaded

the ordinance as a defense, and this is the first assignment of error. It is contended that the ordinance was proper evidence to show that McDonald, by its violation, was guilty of contributory negligence. We do not think that the ordinance was intended to govern the actions of firemen or regulate the speed of fire engines or trucks. Such an intention is nowhere expressed, and, if it had been, the ordinance would have been unreasonable. Cities do not provide horses of high mettle, trained to propel speedily apparatus for the extinguishment of fires, and then impede them in their progress by a requirement that they shall not be driven faster than an ordinary traveling gait. Various appliances have been devised by which such horses are harnessed with incredible speed, that no time may be lost in reaching the fire with hose and other aids to prevent the destruction of property. It is of first importance that a fire be reached in its incipiency. To accomplish this purpose, the utmost haste is necessary. A compliance with this ordinance by the firemen and the enforced delay required by its terms would convert the fire department into a purely ornamental adjunct to the city government,-proficient only on parade. In Farley v. Mayor, etc. (N. Y. App.) 46 N. E. 506, it is said: "The safety of property and the protection of life may, and often do, depend upon the celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of the fire department in going to fires. Section 1932, c. 410, Laws 1882, was intended to regulate the speed of horses traveling on the streets, and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires." The restriction as to speed, when applied to the fire department, renders the ordinance unreasonable. Unreasonable ordinances will not be upheld by the courts. 1 Dill. Mun. Corp. 319; Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719; State v. Sheppard (Minn.) 67 N. W. 62.

A general demurrer was also sustained to the fourth paragraph of the answer of the city, which reads: "The defendant further says that under and by virtue of the provisions of chapter 363 of the Laws of 1895, and out of the funds created and provided for by said law, it purchased, on the 7th day of August, 1896, anaccident insurance policy for said Andrew McDonald, in plaintiff's petition named, from the Travelers' Insurance Company, by which contract and policy said company agreed to pay, and did pay, to the plaintiff, on account of the death of said Andrew McDonald, by reason of the causes in plaintiff's petition set forth, the sum of $2,000, which sum the plaintiff did receive and still retains." There is nothing in the act of 1895 implying that indemnity is furnished to the city against damages to the widow or next of kin of a fireman

killed by its negligence. The accident policy cost the city nothing. The premiums were paid by foreign insurance corporations doing business in the state; a tax being laid by the state of two dollars a hundred upon the amount of all premiums on policies written for fire and lightning insurance within the limits of such city for each year. The law authorized the amount of the tax to be invested in the purchase of accident insurance upon the members of the fire department. The tax is collected by the state for the purposes mentioned, and the mayor and council in cities having a paid fire department are constituted its agents, charged with the duty of applying the amount of the tax to further the objects named. The demurrer to said paragraph of the answer was properly sustained. Coots v. City of Detroit (Mich.) 43 N. W. 17. Evidence was introduced by the plaintiff below showing that at the time of the accident there was a pile of sand, cinders, and earth on the east side of the street, south of, but near, the place where the first obstruction mentioned was situated. Counsel for the city complain that the admission of this testimony tended to convey to the jury an impression that the city was unmindful of the streets, and permitted any and all persons to block them up. It was competent to show the width of the roadway in condition for travel at and near the place of the accident, as it might properly be shown that one side of the street was higher or lower than the other, and the condition in general of the surroundings. There was proof tending to show that the rocks upon which the wagon struck were of light color, similar to that of the block pavement in the street, and hence not distinguishable from the pavement at night. Clarke, who was riding with McDonald, saw this pile of cinders and sand, and it was not improper for the jury to know of the existence of this obstruction, and to consider whether McDonald also saw it, and, in order to avoid it, was driving further west than he otherwise would have done. The jury found, in answer to a particular question submitted, that the sand and cinder pile was not one of the causes of the accident, so that the defendant below cannot be said to have suffered from the evidence complained of. Again, we cannot say that the evidence admitted in cross-examination of the witness Edmunds, showing that there was a movement on hand to reorganize the fire department, was prejudicial to the city. It would seem to be harmless in itself. We think, however, the counsel for plaintiff below went to greater lengths in his comments on this evidence before the jury than he should have done, making an application of the testimony not justified by the language of the witness. The defendant below, however, merely excepted to the language of the opposing counsel. No objection preceded this exception, and the court had made no ruling. This was Insufficient. "An exception is an objection taken to a decision of a court or judge upon a

matter of law." Gen. St. 1897, c. 95, § 309; Marder v. Leary (Ill. Sup.) 26 N. E. 1094; Pike v. City of Chicago (Ill. Sup.) 40 N. E. 567. In Marder v. Leary, supra, the court says: "The remark 'I except to the statement' meant nothing, in a legal sense, in the connection in which it occurred. The court had made no ruling to which it was applicable, and, if it was intended to be an objection, it was ineffectual, because it was not pressed upon the attention of the judge, and his ruling obtained thereon. Railroad Co. v. Fletcher, 128 Ill. 619, 21 N. E. 577."

The plaintiff in error urges that the court erred in refusing to permit it to show the rules of the fire department requiring that firemen drive in the middle of the street. If there was such a rule, its object was to insure safety to the men, teams, and vehicles when going at a rapid rate of speed in answer to an alarm of fire. A violation of any precaution affecting safety would have been equally negligent on the part of the driver, whether the exercise of such precaution was demanded by the rules or not. The condition of the street would largely determine the course to be taken, and what part of the street to be avoided, whatever the rule might be. To drive a hook and ladder wagon in the middle of those streets upon which cable-car tracks are in use, with rough stone blocks between the rails, would be exceedingly dangerous to the driver and vehicle. and render collisions with street cars probable. The fact of the existence of a rule as claimed, which McDonald violated, would not demand of him greater care. The condition of the street, as it appeared to him, should determine his course in. driving, whether there was a rule on the subject or not. There are cases where a violation of a rule would be a material consideration. If a man were engaged in a dangerous employment, without an experience fitting him to determine the safer of one or two courses which he was called upon to take, then rules for his guidance, fixed by persons skilled in the particular work or business, should be followed. We have examined the instructions tendered by the city and refused by the court, and see no error in their refusal. The court instructed that McDonald was not in any manner responsible for any negligence of Clarke, the captain of the truck. They were not fellow servants. 1 Beach, Pub. Corp. $$ 741-744; 2 Dill. Mun. Corp. 977-980; Lawson v. City of Seattle (Wash.) 33 Pac. 347; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490. The last case is authority for the statement that McDonald and Clarke were not servants of the city. That they were fellow servants of some one else is immaterial. But if they were fellow servants of the city, and if Clarke failed to notify McDonald of the existence of rocks in the street, and if he was guilty of negligence in not doing so, and if his failure to give such notice contributed to the death of McDonald, yet the negligence of the city was the primary and proximate cause, without which the accident would not have occurred,

and the negligence of Clarke the remote cause. The claim that the death of McDonald was caused by the negligence of a fellow servant, and that the city is not therefore liable, is untenable. We do not see how the failure of Clarke to notify McDonald of the danger can affect the city's liability. The negligence or omission of a stranger to notify McDonald could not excuse the municipality from the consequences of its own negligence. The court below held, and so instructed the jury, that McDonald was a lawful traveler upon the streets, and, as such, the city owed the duty towards him to keep and maintain its streets in a reasonably safe condition for public travel,-in fact, that he was entitled to the same protection as an ordinary traveler upon the highway. This ruling was correct. Coots v. City of Detroit, 75 Mich. 628, 43 N. W. 17; Palmer v. City of Portsmouth, 43 N. H. 265; Farley v. Mayor, etc. (N. Y. App.) 46 N. E. 506. In Coots v. City of Detroit, supra, it is held that a fireman is not held to that degree of care and caution in driving along a public street required of a common traveler proceeding at an ordinary gait.

The defendant below requested the court to submit to the jury 78 particular questions of fact, 35 of which were refused. Many of the questions were immaterial, and some were repetitions of others. While it is the duty of the court to submit to the jury questions pertinent to the issues, we think the court performed that duty in this case.

As to the verdict being excessive, while the jury are restricted to the pecuniary loss suffered by the widow or next of kin, yet they are not confined, in estimating the damages, to any exact mathematical calculation, but are invested with considerable discretion, with which the courts will not interfere unless it has been abused. Considering the age and capacity for earning wages possessed by the deceased, his relations to his family, and his habits of life, we cannot say that the amount of the verdict was unreasonable. The case was carefully tried by the learned judge of the court below, and all legal rights of the defendant protected.

The ordinance permitting a use of a portion of the street for the deposit of building material thereon was not invalid. Dill. Mun. Corp. (4th Ed.) § 730. In the absence of such ordinance, a license thus to encroach upon the street might be implied, and a temporary occupation be lawful, from the necessities of the case, when buildings fronting on the street were being erected. Yet such use being exceptional, and foreign to the purposes for which the thoroughfare was laid out and maintained, the duty devolved upon the city to exercise vigilance with respect to the rights of a traveler who might be harmed by such obstructions in his way.

Several questions raised in the brief of the plaintiff in error are not discussed in this opinion, but we have examined the same and find nothing substantial in the claim of error. The

1. Under our statute a corporation may be organized for the transaction of any manufacturing, mechanical, or mercantile business, either separately or all combined.

2. A corporation whose powers and purposes, as declared in its charter, were the manufacture of sugar, sirup, starch, and glucose; the erection and maintenance of a factory, and the purchase and sale of real estate and plantations therefor; the purchase, location, and laying out of town sites, and the sale and conveyance of the same, and town lots; and "for the transaction of manufacturing, mechanical, and mercantile business,"-is authorized to establish and carry on the business of manufacturing matches and woodenware, in addition to the manufacture of sugar, sirup, starch, and glucose.

3. The testimony examined, and held sufficient to sustain the finding of the court that the action of the officers in establishing and carrying on the additional industry was free from fraud, and that the mortgages upon which money was obtained for the purposes named were executed in good faith, and are binding obligations of the

company.

(Syllabus by the Court.)

Error from district court, Allen county; L. Stillwell, Judge.

Action by the Parkinson Sugar Company and John R. Kearns against the Bank of Ft. Scott and others. Judgment for defendants, and the sugar company brings error. Affirmed.

Keene & Gates and Perry & Crain. for plaintiff in error. Hulett & Hulett, C. E. Benton, and J. D. McCleverty, for defendants in error.

JOHNSTON, J. On July 17, 1895, the Parkinson Sugar Company borrowed $10,000 from the Bank of Ft. Scott. The debt was represented by two notes, of $5,000 each, due in six and twelve months, and the payment of the same was secured by a mortgage on the property of the sugar company. On October 8, 1895, the sugar company borrowed an additional $5,000, and gave the bank its note. payable in six months thereafter, secured by a mortgage on the company's property. Default having been made in the payment of the notes and mortgages, a foreclosure proceeding was begun on August 5, 1896; and, in the September following, it resulted in a judgment against the sugar company for $15,870.18. Shortly afterwards an order of sale was issued on the judgment, for the sale of the property;

but, before the sale was made, John R. Kearns, a stockholder of the sugar company, instituted this action to enjoin the sale, alleging that the notes and mortgages were executed without authority, and in fraud of his rights, and that the bank had full knowledge of the facts and of such invalidity. Subsequently the sugar company intervened in the action, and reiterated the charges of fraud, want of authority, and invalidity. A temporary injunction was obtained at the beginning of the proceedings, but upon the trial the injunction was dissolved, and judgment given in favor of the defendants.

Complaint is made that the facts do not warrant the judgment of the court, and, although a great mass of testimony was received, much of which was conflicting, only a general finding of the court was made; and therefore, on the disputed questions, the controversy must be deemed to be closed.

It appears that the sugar company was organized in 1886, and the purpose and powers of the company, as declared in the charter, were: "The manufacture of sugar, sirup, starch, grape sugar, glucose, and other products from sorghum cane, cane seed, corn, and other saccharine and amylaceous substances; for the erection and maintenance of factories, and the purchase and sale of real estate and plantations therefor; for the purchase, location, and laying out of town sites, and the sale and conveyance of the same in town lots and subdivisions, or otherwise; and for the transaction of manufacturing, mechanical, and mercantile business." For a number of years the operations of the company were mainly confined to the manufacture of sugar and sirup; but, as this business was necessarily limited to the cane season,-only a small part of the year, the extension of their manufacturing operations became a subject of discussion among the stockholders and officers of the company. At the January, 1895, meeting of the stockholders, the directors were instructed to examine into the matter of adding a match factory and a veneer woodworking establishment to the company's plant; and, if it was deemed desirable that such industry should be added to the company's business, the directors were authorized to borrow $10,000, and, to secure the loan, they were authorized to mortgage the real estate of the company. On March 13, 1895, a committee was appointed by the board of directors to visit Chicago and investigate the business of making matches; but before the committee had gone, and on March 15th, the action of the board in appointing the committee was revoked, and the directors determined to proceed at once to construct the match factory and the veneer woodworking establishment, which was done. At the July meeting of the board a resolution was adopted to borrow $10,000 to pay certain mortgage indebtedness existing against the company, and to complete the match and veneer woodworking plant, which was in process of construction. In pur

suance of this resolution the two notes already mentioned, of $5,000 each, dated July 17, 1895, were executed, as well as a mortgage to secure their payment. The testimony tends to show that a mortgage debt of the company to the extent of $7,000, contracted before the new enterprise was entered upon, was paid out of the $10,000 loan obtained from the Bank of. Ft. Scott. Later in the year, and when the company had overdrawn its account with the Bank of Ft. Scott, another mortgage loan of $5,000 was obtained, as we have seen, from the same bank. The notes and mortgage are the basis of the foreclosure judg ment, and that the amount of the loans was actually paid to, and expended in the interest of, the company, is well established. The construction of the new industry, and the addition of the same to the company's plant, were well known to the officers, and to most of the stockholders, of the company, long before the notes and mortgages in question matured, or the judgment of foreclosure was rendered. Indeed, the parties complaining were generally informed of the operations of the company from the beginning, but no steps were taken to prevent the carrying out of the project until the present proceeding was begun.

The first attack made upon the judgment of foreclosure is that the charter of the company did not warrant the manufacture of matches and woodenware, and that the obligations created for this purpose were unauthorized, and therefore invalid. The purposes for which a corporation is formed are required to be set forth in its charter, and we look to this declaration, as well as to the general law under which it was organized, to determine the nature and extent of its corporate powers and privileges. These constitute the measure of its authority, and it can exercise no other powers than those expressly or impliedly conferred by the charter. From the declared purposes already quoted from the charter, it will be seen that the scope of the purposes and powers of the company was not restricted to one line of business, or the manufacture of a single product. It was authorized not only to manufacture sugar and sirup, but to erect and maintain factories, purchase and sell real estate and plantations therefor, and purchase, locate, and lay out town sites, and to dispose of town lots. While the latter provisions may be regarded as incidental to the manufacture of sugar and sirup. the incorporators expressly added a provision authorizing "the transaction of manufacturing, mechanical, and mercantile business." Manifestly, it was intended to enlarge the scope and extent of the powers of the company by this declaration, and no reason is seen why it cannot be given effect. Nothing in the statute under which the corporation was formed limits it to the manufacture of a single article or product. On the other hand, our law is exceedingly liberal in allowing a combination of the lines of business which may be carried on by a sin