ty, 103 Kan. 719, 176 Pac. 140, 665. The statute giving the right of action is not one relating to remedy or procedure; it concerns the substantive rights of the parties and imposes an obligation where none before existed. We hold that the plaintiff had three years in which to bring it. This makes it unnecessary to pass upon other questions that have been presented. So far as the language of the opinion in the King Case is inconsistent with this conclusion in it is disapproved. The judgment is reversed and the cause is remanded, with directions to overrule the demurrer to the petition. All the Justices concurring. judgment for defendant, plaintiff appeals. Affirmed. S. C. Bloss, of Winfield, and William E. Byers, of Kansas City, Mo., for appellant. Ward Wright, of Arkansas City, for ap pellee. HOPKINS, J. The action was one of replevin by a mortgagee to recover certain cattle held under an agister's lien. The defendant recovered, and plaintiff appeals. The controversy turns largely on whether a waiver of lien, executed by the defendant in 1919, was effective in 1921 after the giving of successive notes and mortgages, and after the cattle had been taken from defendant's pastures in Oklahoma, wintered in Texas, and later returned to defendant's pas INTERSTATE CATTLE LOAN CO. v. WAR- tures in Oklahoma and Kansas. (Supreme Court of Kansas, Jan. 12, 1924.) (Syllabus by the Court.) 1. Animals 26(4)-Waiver of lien for pasturing will not preclude lien under a new contract. An agister who waives his lien under a contract for pasturing cattle will not, for that reason, be prevented from claiming such a lien for pasturing and feeding some of the same cattle another year, under a new contract. 2. Chattel mortgages (38(1)-Agister's lien held superior to mortgage on cattle. Where a mortgagee of 1,336 head of cattle procured from W., who was pasturing the cattle for the mortgagors, in March, 1919, a statement which read: "I hereby waive any lien I may now have which would be prior to the mortgage or which may accrue against said cattle by reason of their being on my pasture," and where part of the cattle were sold and the balance taken from W.'s pastures in November, 1919, were wintered in Texas, and where 626 head of such cattle were, in the spring of 1920, returned to W. under a new contract with the mortgagors, under which they were pastured through the summer and fall and fed during the winter of 1920-21 and pastured during the spring of 1921, held, that W. was entitled to an agister's lien for the pasturage and feed during 1920-21, superior to the lien of the mortgagee. 3. Assignments held without error. Various assignments of error in an action of replevin are held not to be well founded. (Additional Syllabus by Editorial Staff.) 4. Trial 136(3) Construction of written instrument for court. Written instruments speak for themselves, and their construction is a question of law for the court. The facts are substantially as follows: On March 28, 1919, Shults and Hughs, partners, executed a series of notes and a mortgage to the plaintiff on 1,336 head of cattle, to secure the sum of $137,809.50. The notes were due in August and September, 1919. It was agreed that the mortgagors would procure a waiver from the defendant of his agister's lien. This waiver was prepared by the plaintiff and executed by the defendant. It reads: "March 28, 1919. "The Interstate Cattle Loan Company, Kansas City, Mo.-Gentlemen: I understand you are the holders of a mortgage for $137,809.50, given by Homer Hughs and C. E. Shults, dated March 28, 1919, and covering 1,336 head of three and four year old steers. Said steers are now being pastured on my land, and I hereby waive any lien I may now have, which would be prior to the mortgage above referred to, or which may accrue against said cattle by reason of their being on my pasture. "Yours very truly, J. E. Warren." During the season of 1919, approximately 436 head of the cattle were sold, and the proceeds applied upon the notes given by the mortgagors. This November 13, 1919, Shults and Hughs executed notes in the sum of $103,144.94, due May 1, 1920, and a mortgage to the plaintiff upon the remaining 900 head of cattle. mortgage provided that it should be construed under the laws of Texas. The others all provided for construction under the laws of Oklahoma. About the time of the execution of this mortgage the cattle were removed from the pastures of the defendant and shipped to Texas for wintering. Subsequent to the execution of this mortgage, and prior to May 1, 1920, the plaintiff procured additional security upon its obligation against Shults and Hughs by way of a mortgage on a ranch belonging to Shults; the partnership receiving a credit of $15,000 upon its obligation to the plaintiff, thereby reduc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied February 15, 1924. Appeal from District Court, Cowley County; O. P. Fuller, Judge. Action by the Interstate Cattle Loan Company against James E. Warren. From a (222 P.) ing the indebtedness of the partnership to, v. Fidelity Trust Co., 189 U. S. 242, 23 Sup. plaintiff to the amount of about $88,000. In April, 1920, 626 head of cattle were returned from Texas and placed in the pastures of the defendant, under an arrangement then made between Shults and Hughs and the defendant. May 1, 1920, Shults and Hughs executed notes amounting to $88,293.30, due in September and November, 1920, and another mortgage in favor of plaintiff covering 900 head of cattle. During the season of 1920, 403 of the 626 head of cattle in defendant's pasture were sold. On December 10, 1920, Shults and Hughs executed notes amounting to $29,389.06, due June 8, 1921, and another mortgage to plaintiff covering 332 head of cattle. The mortgage located some of the cattle in defendant's pasture and some elsewhere. The notes secured by the mortgage of December 10, 1920, were renewed June 7, 1921, due in July and August, 1921. These renewal notes were in smaller amounts than the notes of December 10, 1920. The notes of June 7, 1921, were renewed August 19, 1921, by a note due October 19, 1921. No other new mortgage was taken to secure the note of June 7, 1921, nor of August 19, 1921, but these notes specified that they were given "in renewal of a certain promissory note, dated December 10, 1920, which is secured by a mortgage and said mortgage security is retained to this renewal note." The notes dated December 10, 1920, and the notes of May 1, 1920, contained no such statement. The action was filed September 23, 1921, and 223 head of cattle were replevined. The original petition and replevin affidavit were verified by R. M. Cook, vice president of plaintiff company. They alleged the execution and delivery of the notes and mortgages dated December 10, 1920. The claim of plaintiff at that time appears to have been based exclusively upon the mortgage of December 10, 1920. No claim was then made that the notes of December 10, 1920, were renewals of former notes, and no claim that the plaintiff had any lien upon the cattle in controversy, other than that created by the mortgage of December 10, 1920. On March 6, 1922, plaintiff filed an amended petition in which it claimed a lien upon the cattle under and by virtue of the mortgage, dated March 28, 1919, and that all the notes and mortgages subsequent to that date were renewals. No amended affidavit of replevin was filed. [1] The plaintiff contends that the letter of March 28, 1919, signed by the defendant, Warren, waiving his lien, was still in force and effect after the return of the cattle to the defendant's pastures in April, 1920; that the letter was plain and without ambiguity in its terms; that its construction was for the court and not the jury, citing Dobbs v. Campbell, 66 Kan. 805, 72 Pac. 273; Rankin Ct. 553, 47 L. Ed. 792; Cyc. of Law, vol. 38, 1522; Ryon v. Starr, 214 Pa. 310, 63 Atl. 701; Akin v. Davis, 11 Kan. 580; Bradish. v. Grant, 119 Ill. 606, 11 N. E. 258; Dime Savings & Trust Co. v. Jacobson, 191 Ill. App. 275, 38 Cyc. 1522; that the defendant was estopped from asserting a lien on the cattle; and that the trial court erred in refusing to so instruct the jury. The defendant admitted the execution of the waiver and that its construction was for the court, but contends that it applied only to the conditions existing under the first contract with the owners of the cattle; that, it did not apply and was not in force after the return of the cattle from Texas, to be pastured under the subsequent contract. The trial court, by refusing to submit the letter of waiver to the jury, held that it was not ambiguous, that its construction 'was a matter for the court and not for the jury, and that the defendant, by its terms, did not waive his lien on the cattle for pasturage after their return under the second contract with their owners. [4] The trial court was not in error. Written instruments speak for themselves. Their construction is a question of law for the court. Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37; Frazier v. Railway Co., 97 Kan. 285, 154 Pac. 1022; Hazleton v. Chaffin, 109 Kan. 175, 197 Pac. 870; Nichols & Shepard Co. v. Swisher, 110 Kan. 20, 202 Pac. 630. At the time of the execution of the contract of waiver the parties undoubtedly had in mind the conditions then existing. It will be noted that the language of the waiver refers to "steers now being pastured on my land," and that "I hereby waive any liens I may now have * * which may accrue against said cattle by reason of their being on my pasture." [2] The cattle were first delivered to the defendant for pasturage in March or April, 1919. They were removed from his pastures and taken to Texas in November, 1919. They were held in Texas under a chattel mortgage executed by the mortgagors to the plaintiff, which, according to its terms, was to be construed under the laws of Texas. Of the original cattle, 626 head were returned to the defendant's pastures by the owners, Shults and Hughe, in April, 1920, under a new contract. The balance had been sold. The letter of waiver was prepared by the plaintiff. It was certainly not the intention of the parties at that time that defendant should pasture three or four year old steers for a period of three years nor could it have been their intention that the defendant should waive his lien for pasturage after his first contract was ended, the cattle wintered in Texas, and again returned, and he had entered into a new contract with the owners. After the cattle were returned from Texas, a new mortgage to plaintiff provided for con struction under the laws of Oklahoma. Thesion after others were sold. Under all the law of that state does not grant an agister circumstances we are not able to say that absolute priority of lien over a duly record- the court erred in admitting this testimony. ed chattel mortgage. It does provide, how- The defendant had permitted, cattle to be ever, that an agister's lien take precedence taken from his possession and sold, and it over a prior recorded chattel mortgage, was neither improbable nor improper for where the animals are held and fed with the Hughs, the owner of the cattle, as agent of consent of the mortgagee. Under the Okla- the plaintiff, to advise the defendant that homa decisions the consent of the mortga- he was safe in permitting a portion of the gee may be implied by signs, actions, or facts cattle to be shipped, with the understanding manifested by the mortgagee, or by his in- that his pasturage bill would be paid out of action or silence, which raises a presumption the proceeds of those remaining. that consent has been given. National Bank of Commerce v. McDaniel (Okl.) 174 Pac. 286; Cather v. Spencer, 55 Okl. 511, 154 Pac. 1130. See, also, Lynde v. Parker, 155 Mass. 481, 30 N. E. 74; Griffith v. Speaks, 111 Ky. 149, 63 S. W. 465. In addition to the general verdict in favor of defendant, the jury returned answers to special questions, as follows: "Q. 1. Do you find that plaintiff knew cattle were being pastured or fed in Kansas? A. Yes. "Q. 2. If you answer question No. 1 in the affirmative, state when plaintiff first obtained such knowledge. A. Spring 1920. "Q.3. How many cattle were pastured in Oklahoma during the season of 1920? A. 250 head. "Q. 4. How many cattle were pastured in Kansas during the season of 1921? A. 223 head. "Q. 5. How many cattle were fed in Kansas during the winter of 1920-21? A. 223 head. "Q.6. Did plaintiff ever consent to pay any pasture or feed bills to the defendant, James E. Warren? A. Yes. "Q. 7. If you answer question No. 6 in the affirmative, state when, where, and how, A. In fall of 1920, when Hughs went to Kansas City and told Interstate Cattle Loan Company that Warren wanted pay for pasture and feed. "Q. 8. How much, if anything, do you allow defendant, James E. Warren, for pasturing cattle in Oklahoma? A. $3,000. "Q. 9. How much, if anything, do you allow defendant, James E. Warren, for pasturing cattle in Kansas? A. (a) For year 1920? $4,512. (b). For year 1921? $2,230. Feed for 1920 and 1921? $3,345." The plaintiff moved to set aside certain of the answers to special questions, on the ground that they were not supported by sufficient evidence. We have examined the record and conclude that there was sufficient evidence to sustain the findings, and that no error was committed in overruling plaintiff's motion. Complaint is made of the introduction of testimony that the defendant Warren requested Homer Hughs, one of the owners of the cattle, to talk to the officers of the plaintiff relative to the defendant's bill for pasturage, and that Hughs later informed him that he had talked with the officers of the plaintiff and that the defendant's bill for pasturage would be paid out of the proceeds of cattle remaining in defendant's posses The statute under which the defendant claims his lien reads: "The keepers of livery stables, and all others engaged in feeding horses, cattle, hogs, or other live stock, shall have a lien upon such property for the feed and care bestowed by them upon the same, and if reasonable or stipulated. charges for such feed and care be not paid within sixty days after the same becomes due, the property, or so much thereof as may be necessary to pay such charges and the expenses of publication and sale, may be sold as provided in this act." G. S. 1915, § 6083. This statute was early construed in Case v. Allen, 21 Kan. 217, 220, 221 (30 Am. Rep. 425). The court there said: "Now the lien of the agister is not the mere creature of contract; it is created by statute from the fact of the keeping of the cattle. The possession of the agister was rightful, and, the possession being rightful, the keeping gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alive thereby; and the principle seems to be that, where the mortgagee does not take the possession, but sents to the creation of a statutory lien for leaves it with the mortgagor, he thereby asany expenditure reasonably necessary for the preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures to his benefit. The entire value of his mortgage may rest upon the creation of such indebtedness and lien, as in the case at bar, where the thing mortgaged is live stock, and the lien for food. And while it seems essential that this should be the rule, to protect the mechanic or other person given by statute a lien upon chattels for labor or material, the rule, on the other hand, will seldom work any substantial wrong to the mortgagee. The amount due under such liens is generally small-a mere trifle compared with the value of the thing upon which the lien is claimed. The work or material enhances or continues the value of that upon which the work is done or to which the material is furnished; and the mortgagee can always protect himself against such liens, or, at least, any accumulation of debt thereon, by taking possession of the chattel mortgaged." The rule of Case v. Allen was quoted with approval in Automobile Co. v. Dennis, 104 Kan. 241, 178 Pac. 408. We conclude that the defendant's lien was superior to that of plaintiff, [3] The plaintiff requested several instructions, the effect of which would have been a directed verdict for the plaintiff. (222 P.) They, proceedings to hold the land-McBride's homestead-as security for its claim. The theory on which the bank asserts a right to a lien is that the notes referred to are renewals of others executed by McBride for money lent for improvements on the farm, which was used for that purpose; that it was borrowed by McBride as agent for his mother under an arrangement that she was to execute a mortgage on the land. Without the evidence offered by the plaintiff a prima facie case in favor of the lien was not made. The excluded testimony was that of the cashier and assistant cashier of the bank concerning conversations they had had with McBride's mother, and was excluded in part, at least, as coming within the statutory rule concerning transactions had with persons since deceased. Civ. Code, § 320; Rev. Stat. 1923, § 60-2804. Originally the disqualificaHOME STATE BANK OF MCPHERSON v. tion was extended only to parties. In 1911 MCBRIDE et al. (No. 24830.) The judgment is affirmed. the word "person" was substituted for "par (Supreme Court of Kansas. Jan. 12, 1924.) ty" where it first occurs in the section. This change has been held not to disqualify as a witness one who is not a party but has an indirect interest in the result. Collins v. Hayden, 104 Kan. 351, 179 Pac. 308. Whether an officer of a corporation actively engaged in conducting its business may testify in its behalf concerning a transaction between the bank, as represented by him, and a person since deceased, under which the adverse party claims, need not be determined, because the trial court was not shown what the plaintiff could have proved if the proffered evidence had been admitted. A motion for a new trial was filed and overruled, but at its hearing no evidence was Action by the Home State Bank of Mc-produced by affidavit or otherwise of the Pherson against J. L. McBride and others. From an order supstaining a demurrer to the evidence, plaintiff appeals. Affirmed. Alex S. Hendry and F. O. Johnson, both of McPherson, for appellant. J. A. Cassler, of McPherson, for appellees. facts the plaintiff's witnesses would have testified to, as required by the Civil Code, § 307 (Rev. Stat. 1923, § 60-3004). It has been said that, where a demurrer to the plaintiff's evidence is sustained, rulings rejecting evidence offered by him may be reviewed without a motion for a new trial. Wagner v. Railway Co., 73 Kan. 283, 286, 85 Pac. 299. MASON, J. Mrs. Mary J. Bonifield died | Whether or not a motion for new trial was February 1, 1920, while holding the title to necessary to support an appeal from the rula farm. She left a will, which was pro-ings complained of, one was filed and conbated, leaving all her property to her son, sidered, and an opportunity was thereby afJohn L. McBride, and his children. The forded to advise the court of the force of the Home State Bank of McPherson brings this excluded evidence. Moreover, under the action against McBride and others seeking to present Code it is incumbent upon the apestablish a lien upon the farm as security pellant to show affirmatively that the decifor an indebtedness evidenced by two notes sion appealed from was not only erroneous executed by him to the bank January 1, 1921. but prejudicial. Civ. Code, § 581 (Rev. Stat. A demurrer to the plaintiff's evidence was 1923, § 60-3317). No statement was made, sustained, and it appeals, assigning as error sworn or unsworn, of the specific facts sought that ruling and also the rejection of evi- to be elicited from the witnesses. The plaindence which it offered, and the overruling of tiff's attorney did say that it was his pura motion for a new trial. pose to establish the agency of McBride for McBride was adjudged a bankrupt Janu- his mother by conversations had between ary 27, 1922, but an order was made author- her and an officer of the bank, but what izing the bank to maintain in the state court | statements on her part were claimed to have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes been made were not further indicated in any pending an appeal from an order denying an way. In this situation the question of the injunction pendente lite in an action brought admissibility of the evidence is not so pre-by-certain stockholders of the La Zacualpa sented as to require decision, The judgment is affirmed. AMERICAN TRADING CO. (Pacific Coast) Hidalgo Rubber Company to prevent that company from executing a deed of certain of its properties to the American Trading Company as provided by an agreement of December 20, 1921, between the La Zacualpa Hidalgo Rubber Company and the American Trading Company, wherein and whereby it was agreed that at the expiration of 18 months, to wit, on June 20, 1920, the La Zacualpa Hidalgo Rubber Company would transfer its properties to the American Trading Company. On June 19, 1923, certain stockholders of the La Zacualpa Hidalgo Rubber Company began an action for an accounting and for an injunction to restrain the proposed transfer, and in connection therewith secured a temporary restraining A court refusing an injunction pendente lite order and an order to show cause why an cannot grant an injunction pending appeal, ex-injunction pendente lite should not issue. Upcept where the latter order is to be deemed a portion of that denying the injunction pen (Supreme Court of California. Dec. 29, 1923. dente lite. 2. Appeal and error 447-Further notice of application for restraining order pending appeal from order denying injunction pendente lite held unnecessary. Since the trial court's power to continue a restraining order in effect pending appeal from an order denying an injunction pendente lite is only incidental to the right of appeal, no other notice than that given of the hearing on the motion for the injunction pendente lite is necessary. 3. Appeal and error 447-Order restraining transfer of corporate property held not invalid because bond not executed to transferee. An order continuing in effect a restraining order against a transfer of property by a corporation pending appeal from an order refusing an injunction pendente lite held not invalid, because the required bond was executed to transferor, instead of transferee; such order being made in pursuance of the court's inherent power to preserve the status quo pending appeal and not under Code Civ. Proc, § 527. rior court denied the application for the inon the hearing of this application the supejunction pendente lite and dissolved the restraining order. The plaintiff stockholders appealed from the order denying the temporary injunction and secured an injunction pending the appeal restraining the La Zacualpa Hidalgo Rubber Company from transferring the property to the American Trading Company. In accordance with the order granting the injunction pending the appeal, plaintiffs gave a bond in the sum of $2,500. payable to the La Zacualpa Hidalgo Rubber Company. tions this court to annul the order granting [1-3] The American Trading Company petithe injunction pending the appeal, upon the ground that the order was void because nonotice of the application was given and the bond does not protect the American Trading Company. Upon the argument it was conceded that the superior court had authority to grant an injunction pending the appeal in order to preserve the status quo. City of Pasadena v. Superior Court, 157 Cal, 781, 109 Pac. 620, 21 Ann. Cas. 1355; Pierce v. City of Los Application by the American Trading Com-Angeles, 159 Cal. 516, 114 Pac. 818. The jupany (Pacific Coast) for a writ of review di- risdiction of the superior court to grant such rected to the Superior Court of the City and an injunction pending an appeal, after havCounty of San Francisco and others to an- ing refused an injunction pendente lite, can nul an order of the Superior Court continu-only be sustained on the theory that the oring a restraining order pending an appeal from an order denying an injunction pen In Bank. dente lite. Affirmed. Knight, Boland, Hutchinson & Christin, of San Francisco, for petitioner. der granting the injunction pending the appeal is a portion of the order denying the injunction pendente lite; for, where the court has refused an injunction, it could not subsequently grant the injunction, because the order refusing the injunction is an appealable order. This principle is established in the case of United Railroads v. Superior Court, 170 Cal. 755, 151 Pac. 129, Ann Cas. 1916E, 199,. where it was held that the trial court, having WILBUR, C. J. Petitioner seeks a writ of granted a preliminary injunction without rereview to annul an order of the superior serving the power to modify the same, could court continuing in force a restraining order not subsequently suspend the effect of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Frank J. Golden and Humphrey, Grant, Zimdars & Warren, all of San Francisco, for respondents. |