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Odr ^ ^ ^0 domestic fireside. And unless compelled by some rigid law, we should not by

^'^1 ?^<>n establish a rule calculated to deter the husband from adopting his wife's chil-

o^Ve' '''* former marriage, in to his family. The marriage with the mother, it has been held,

^ o« ^'^^ relation which would otherwise exist between her and her children, as guard-

'^^Cj ***elr persons. If therefore the husband voluntarily adopts them into his family,

^)^ ci^ ^^d supports them, and discharges his whole duty toward them as a parent and a

"^So ^^^5^*^% the law should be liberally construed in his favor. " The court also observed:

ettei^^ ^ta liable for necessaries furnished to a child standing in that relation, to the same

Statb V. Wilson.

(94 Kans. 180.)
Criminal law — evidence — dying dedaratione,

Pying declarations are admissible in evidence if the declarant had given up
all hope of life, although he did not state that he was expecting to die im-
mediately, and although the same matter had been testified to hj the
declarant on a preliminary examination of the accused, and that testimony
had been properly given in evidence.

CONVICTION of murder. The opinion states the case.

Bowman i(* Bticher and W. K Lathey, for appellant
John Reidy county attorney, for State.

Brewer, J. [Omitting a statutory point. J We pass now to the
only other matter discussed by counsel, and that is, the dying de-
clarations. As to these, it is insisted that no sufficient foundation
was laid ; and secondly, that the best evidence of such declarations
wjis not produced. These declarations were made some four or five
liours before death, and after the doctor had told Ball there was no
hope, and that he could not live. They were made in response to
an inquiry as to whether he wanted to make any statement concern^
ing the transaction. When advised by the physician that there was no
ho[ie, he requested that a Mr. Harris be sentfor to come and pray with
him. He also said that he was not afraid to die, or was willing to die,
and that he forgave the parties who were the cause of his death.
Vol. XXXVI ^ 33

Digitized by



State V. Wilson.

Of course, the only question is, whether these declarations were
made under the sense of impending death. Now the deceased had
been lying on his bod for many days, suffering from this wound.
The doctor testifies that lie thinks that the deceased had given up
hope, even before he advised him that there was no hope. When
so advised, he requests that arrangements be made for prayers; and
then uix)n being asked, gives his statement of the transaction in
whicli lie received liis mortal wound. It is tj'ue that such declara-
tions must ho made under a sense of impending deatii; but a>
Greenleaf in his work on Evidence says, "It is not necessary that
they should he stated at the time, to be so made. It is enough, if
it satisfactorily appears, in any mode, that they were made under
that sanction ; whether it be directly proved by the express lan-
guage of the declarant, or bo inferred from his evident danger, or
the opinion of the medical or other attendants stated to him, or from
his conduct, or other circumstances of the case, all of which are re-
sorted to, in order to ascertain the state of the declarant's mind." 1
Grocul. Ev. (13th ed.), § 158. We think that it was satisfactorily
shown by all the surrounding circumstances that these declarations
Avere made under a sense of impending death, and were therefore
admissible in evidence. The doctor testified that he made a min-
ute of the declarations, but had lost it. Objection was made to
any evidence of those declarations without the production of that
minute or memorandum, but this objection was overruled. It is
unnecessary to determine whether sufficient evidence was given of
loss and search to open the door to parol testimony of the contents
of this nicmoranduni as of a lost instrument, for if the memoran-
dum had been produced, it would not have been admissible. It
was no oflicial document, but simply a memorandum made by an
individual of what he heard another party say. It would have been
of aid in refreshing the witness's memory, but was not of itself
admissible testimony.

A final objection is made, thut these declarations should not have
been admitted, because the testimony of the deceased given on the
preliminary examination had been. The argument is, that dying
declarations are admitted only because of a necessity therefor ; that
hei*c was no such necessity, for the very testimony of the deceased
was already before the jury; that it parallels the case of a deposi-
tion which is not admissible when the witness is present in the
court room. We do not think the argument sound, for while neoes*

Digitized by


JULY TEUM, 1880. 259

Switzer v. Wilvers.

sitj was no doubt the reason wliich relaxed ilie rule excluding hear-
say testimony in favor of dying declarations, yet it is not indispens-
able tliat such necessity exist in each individual case. Thus,
though thero wero many witnesses of tlio fatal encounter, that fact
Would not exclude the dying declarations of tlie deceased. Indeed,
the admissibility of dying declarations, in prosecutions for homi-
cide has become an established rule of evidence, and such testimony
^fl competent and received independent of any question as to the
paucity or abundance of other testimony.

These are all the matters presented for our consideration , and
^^ them appearing no error, the judgment will bo affirmed.

Judgment affirmed.
VALENTINE, J., Concurring.

^oktok, C. J., dissented on the statutory point.

Switzer v. Wilvers.

ON Kans. 384.)
Ageiicy — to sell — rnoHgage,

>j» ^'*'«^'H.oTity to an agent to sell personal property does not warrant him in

mortgaging it.


^I ON on account. The opinion states the case. The defend*
^rxt had judgment below.

®^^* Foster, for plaintiff in error.

o^M^Z^r ifr Cunninnhain and Gnrver S Bond, for defendant in

., ^^"XON, C. J. [Omitting some immaterial statements.] On

'^^ day of September, 1879, Egerton R. Switzer commenced

c^ '^^^ion before a justice of the peace in the city of Salina. He

. ^ «^ is affidavit and undertaking, and obtained an order of arrest

/Silvers Thereon the latter was arrested. Wilvers filed his

.^ ^^Ti to be discharged from the order of arrest, "for the reason

^he affidavit upon which said order of arrest was issued waa

Digitized by



Switzer v. Wilvere.

insufficient to justify the arrest of said defendant." The affidavit
for the order of arrest was decided by the justice to be insufficient.
AVilvers was discharged from arrest, to which Switzer excepted.

On February 21, 1880, npon proceedings in error, the District
Court of Saline county affirmed the decision of the justice, and the
case is now hero for our consideration. The affidavit for the arrest
charged that Wilvers liad begun to convert his property, or a part
thereof, into money, for the purpose of defrauding his creditoi-s,
and had property and rights in action which he fraudulently con-
cealed, and had begun to assign, remove and dispose of his prop-
erty, or a part thereof, with intent to defraud his creditors.

The facts claimed to justify the belief in the fraud charged were,
in substance: That Switzer was a physician in attendance on Wil-
vers' wife. Wilvers was unable to get credit for medicine, and was
owing therefor. Switzer assumed the debt, Wilvers selling him a
colt as payment, which was left in possession of Wilvers. Wilvers
then discharged Switzer, and falsely pretending that he could sell
Tiio colt and would do so, and pay Switzer, obtained leave of Switzer
to do so, but did not attempt to sell said colt and pay Switzer, but
immediately mortgaged the colt to another party (Dr. J. W. Jenney),
giving to Switzer nothing and refusing to state what the considera-
tion of said mortgage was, but stating that ** that was his business."

We perceive no error in the ruling of the court. The affidavits
siiow asale of tlio colt to Switzer. The latter subsequently author-
ized Wilvers to sell the animal. Without authority he executed
a chattel mortgage in his own name to another party. The mort-
gage was worthless and void. Switzer had not parted with his colt,
and is entitled to reclaim it of Wilvers, or of the alleged mortgagee.
A power to sell does not authorize a mortgage. The facts do not
sustain the speci6c charges of the affidavit, hence the justice right-
fully decided the affidavit insufficient.

The judgment of the District Court will be affirmed.

Judgment affirmed.

All the justices concurring.

Digitized by


JULY TERM, 1880. 261

HerrimAn v. Shomon.

Hebrimak V. Shomok.

(84 KaDB 887.)

AUamey andcHent — attorney to coUect — mu$t receive only money.

An attorney employed to collect a note has no implied authority to receiT«
anything bat money in payment.

ACTION to stay execution. The opinion states the case. The
plaintiff had judgment below.

Vo8s £ Van Syckely for plaintiff in error.

*S'. JV". Afidr&tvs, and //. O, Webb, for defendant in error.

Br£W£R, J. R. Schulenberg & Co. obtained a judgment against
defendant in error, plaintiff below, which they assigned to plaint-
iff in error, defendant below. Execution was issued upon such
judgment, and levied upon a stock of goods belonging to Shomon.
The latter thereupon brought this action to restrain proceedings
upon that execution, alleging that the judgment had been fully
l)aid and discharged. The case was tried by the court without a
jury, and findings and judgment were in favor of the plaintiff.
The court found specially, that the judgment had been paid before
the issue of the execution.

It appears that a Barbour county warrant was received by the
attorney of record of Schulenberg & Co., from Shomon, after the
entry of judgment Shomon claimed that the attorney received it
as payment ^ro tanto. The attorney testified that he only received
it to collect, and to apply the proceeds when collected upon the
judgment. The warrant was never paid, and was doubtless fraud-
ulent and worthless. We shall not stop to consider the contradic-
tion between these witnesses, for we think the judgment must bo
reversed upon the undisputed facts. There is no pretense that the
phiin tiffs in the judgment knew of the action of their attorney,
authorized or ratified it, or that he had any special directions or
authority in the matter. He had simply the general authority of
an attorney in the collection of a judgment. But this general au-
thority is to receive money only in payment. He can neither sell,
assign, or compromise a judgment, nor receive notes, warrants, goods»

Digitized by



Fraker v. Little.

cluittels or land in payment. Receiving a county warrant is simply
exchanging a judgment claim against a debtor for a claim ngains(
a county. It matters not that the debtor is insolvent and the war-
rant valid and valuable. The attorney is employed to collect, that
is, receive the money due on the judgment, and not to trade the
claim for any thing although apparently or in fact more valuable.
The authorities in this direction are clear and abundant. See
among others: 2 Dan. on Neg. Inst., § 12 io; Cliapman v. Cotoles,
41 Ala. 103; Wright v. Dailey, 2G Tex. 730; Bradford v. Arnold,
33 id. 412 ; Moye v. Cogdell, G9 N. C. 93 ; Maddux v. Bevan,39 Md.
48o; Waldoi v. Bolton, bb Mo. 405; Spears v. Lcdergerber, 56 id.
4(i5; Harper v. Harvey, 4 W. Va. 539 ; Maxtoell v. OweUy 7 Coldw.
(Tenn.) C30 ; Campbell \, Bailey, 19 La. Ann. 172; Davis v. Lee,
20 id. 248 ; Mayer v. Blease, 4 Rich (S. C), 10; Carstem v. Barn-
storf, 11 Abb. Pr. (N. S.) 442 ; Beers v. Hendrickson, 45 N. Y.
6G5 ;. Do Mets v. Dagron, 53 id. 635 ; Marbourg v. JSmith, 11 Kans.

The attorney may be perRonally responsible for any contract which
lie made, but his clients are not bound by his agreement to receive
county warrants or other property in payment of their judgment
Hence, whether the warrant was received according to the agree-
ment as he states it, or as Shomon testifies, is immaterial so far as
tlie satisfaction of the judgment is concerned.

The judgment will therefore be reversed, and the case remanded
for a new trial.

^udffinerU reversed.

All the justices concurring.

Praker v. Littlb.

(24 Kans. 598.)

Mistake — payment of altered note.

The accommodation maker of a note which has been materially altered with-
out his knowledge, having paid it in ignorance of the alteration, may
recover tilt* money so paid; even, it seertiA if such payment was negli^nt.

AC'TIOX for recovery of money. The opinion states the case.
Tlie defendant had judgment below.

Digitized by


JULY TERM, 1880. £63

Fraker v. Little.

H, G. Etcggles and (K II. Benileyy for plaintiff ia error.

Sluss <0 Hatton, for (iefendant in error.

Brewer, J. This action grows out of tiie facts whiqh are stated
ill tlie opinion in the case of Fraker v. Cullum, 21 Kans. 555, and
is for the recovery of about $1,800 due from the bank to plaintiff,
and which was given up at the time of the execution of the notes in
controversy in tliat case. The transaction appears now as it did
tlicn, and the single question is as to the right to recover this
money as money paid under a mistake of fact. Beyond question,
the original note of $4,862.40 was so altered wliile in the possession
of the bank as to be void. Plaintiff being but an accommodation
maker, there was no antecedent indebtedness of his to the bank.
For til is void and worthless paper ho surrendered to the bank
11,800, or thereabouts, which the bank owed him, and executed
new notes to make up the difference. What consideration was
there for this? Absolutely nothing. The bank, having no claim
upon him, could recover nothing. Yet ignorant of the real facts,
and supposing himself liable, he thus gave up his money and signed
the new notes. His ignorance of the alteration clearly appears. It
was done by the officers of the bank without his knowledge and
consent, and for the sake of imposing upon the official bank exam-
iner. Nor can it bo said that he was guilty of more than slight, if
of any, negligence in not critically examining the old note at the
time of its surrender, and detecting the alteration. The party Avho
brought the paper to him was the president of the bank, his own
brother, a reputable business man. Why should he suspect fraud,
or act as though he supposed there was a design to swindle him?
How natural that ho should accept the statement of the president
tliiit the paper was unpaid, and perhaps glancing at his own signa-
ture to see that that was genuine, do the best he could toward set-
tling his supposed liability to the bank. But supposing he were
negligent in the matter, how does his negligence give the bank any
hotter right to his money ? Does mere negligence bar a recovery
of money paid by mistake? Clearly not. In 2 Daniel on Negotia-
hlo Instruments (2d ed.), § 13G0, the author says: '^Ifc is a general
principle of law that money paid under a mistake of fact may be
recovered back. And now the doctrine is favored tliat even negli-
gence in making the mistake is no bar to n < ovtry." In the case

Digitized by



Cummins v. Heald.

of .Vat tonal Dank of Commerce v. National J/. B. A,^ 55 N. Y.
211; b. c.^ 14 Am. Kep. 232, the court thus states the law: ''It is
now settled, both in England and in this State, that money paid
under a mistake o( fact may L>e recovered back, however negligent
the party paying may have been in making the mistake, unless the
payment has caused such a change in the position of the other
paruy that it would be unjust to require him to refund." See, idso,
Lawrence v. Am. Nat, Bank^ 54 N. Y. 435, It is unnecessary to
pursue this matter further.

The judgment will be reversed and the case remanded for a new

Reversed and remanded.

All the justices concurring.

Cummins v. Heald.

(34 Kans. 600.)

Attorney and client — undertaking to collect — ewheUlemewt hy agent.

An attorney at law receipting a note " for collection/' against parties residing
in another county, is responsible for the embezzlement of the proceeds by
another attorney to whom he intrusts the business of collection. {See
note, p, 266.)

ACTION to recover moneys collected on note. Defendant was
an attorney and banker at Minneapolis, Kansas. He receipted
the notes "for collectitn." The maker lived in another county,
and defendant sent the notes to a lawyer there, who collected them,
appropriated the proceeds, and absconded. The jury specially
found that defendant received the notes as attorney and not as
:anker. The plaintiff had judgment below.

J. P. Cvvuniiis^ and McClure cf- Humphrey^ for plaintiff in error.

Thompson t(- Thompson, and Johjiston cO Freeman, for defendant
ill error.

HoRTON, C. J. The principal question presented for our deter-
mination is, who shall bear the loss occasioned by the embezzlement

Digitized by


JULY TERM, 1880. 266

Cummins v. Heald.

of F. W. Kroenke — Heald, the owner of the notes, or Cummins,
who received the notes for collection ? Counsel for plaintiff in
error contend that as Cummins failed to receive any of the proceeds
of the notes from Kroenke, he is not responsible for the loss, as he
acted in good faith, and exercised ordinary care and diligence in
all the transactions. Again, it is claimed by them, that Cummins
received the notes for collection as a banker; that he was requested
by Heald to send the notes to an attorney at law for collection ;
tliat in accordance with the request, he forwarded them to Kroenke ;
that Heald approved of his selection and action, and thereby that
Kroenke was not the agent of Cummins, but of Heald only. In
view of the evidence adduced upon the trial, and the special find-
ings that Cummins received the notes as attorney at law " for col-
lection,^' and that the notes were to be collected by him, the latter
claim has no support in the record. Therefore, we can inquire only
as to the liability of Cummins under the terms of the receipts for
the collections. The decision in Bradstreet y, Everson, 72Penn.St.
124 ; s. c, 13 Am. Rep. 665, is a leading case upon the legal inter-
pretation of a similar receipt of a claim for collection. It is there
stated that such a receipt *' for collection," imports an undertaking
by the attorney himself to collect, and not merely that he receives
it for transmission to another for collection, for whose negligence
he is not to be responsible ; that the attorney executing the receipt
is therefore liable by its very terms for the negligence of the distant
attorney, who is his agent; that he cannot shift responsibility from
himself upon his client ; that there is no hardship in this, for it is
in his power to limit his responsibility by the terms of his receipt,
when he knows he must employ another to make collection. See,
also. Weeks on Att'ys, § 117; Whart. on Neg., § 753 ; Reeves v.
Bank, 8 Ohio St. 465 ; Commercial Bank v. Union Bank, 11 K Y.
203; Walker v. Stevens, 79 111. 193 ; Morgan v. Tener, 83 Penn. St.
305; JLent v. Dawson Bank, 13 .Blatchf. 237. The authorities
are decisive against the relief of Cummins on the ground of
his good faith, or the exercise of ordinary care and diligence. He
took the notes "for collection ;" he corresponded with Kroenke ;
he selected him as his agent; he sent the notes to him at his
own instance, and as he must be held liable under the receipts
foi collections made by his own agent, he must suffer the loss occa-
Bioned by the fraud of such agent.

Digitized by


26() KANSAS.

CummiBB v. Heald.

[Omitting minor matters.]

The judgment of the District Court will be affirmed.

Judgment accordingly.
All the justices concurring.

Note by the Reporter.— In Dunliam v. Motoer^ Kew York Superior Court, Special Term.
January, 1881, defendant, who conducted a commercial agency in New York for the colle*-.
tion of paHt due claims, received from plaintiffs on account for collection from a debt^ir in
no»ton. Defendant transmitted the account to an attorney in Boston, who with ihe
plaintiff's con^'nt compromised the same and received payment upon the compromise,
wlilch the attorney failed to pay over. Plaintiffs, in reply to a letter from defendant be-
fore the i)ayment keeping them informed as to the negotiations of the attorney for com-
promise, directed defendant to tell the attorney ** that he must make the most out of the
matter that he can for us ; " that '* we must be satlsfted with his Judgment in the matter,"
otc. Held, thftt defendant was liable to the plaintiffs for the neglect of the attorney to
pay ovt*r. It is ux-ll s:'tt!ed in New York that when a bank, broker or other money agency
iveoives upon a good ct.nsiderution a note or bill for collection in a place where such bank.
brokerora.^cnry(arniS on business or at a distant place, th^ parties receiving the same
for collection are liable for the neglect, omission or misconduct of the bank or agent to
whom the bill or note is sent, either in the negotiation, collection or paying over the money,
by which the money is lost or other injury sustained by the owner of the note or bill, unless
there be some agreement to the contrary, express or implied. The principle Is that where
a collection agency receives a note for the purpose of collection, its position is that of an
independent contractor, and that the parties employed in that agency In the business con-
templated are ts agents and not the subagents of the owner of the note. Commercial
Bank, if Pmn. v. i'nion Bank of N, F., 11 N. Y.203; AUen v. Merchants' Bank, 22 Wend.
215 ; Brndstrert v. Evcrmn, 72 Penn. St. 124 ; s. c. 13 Am. Rep. 665 ; Story on Agencj*, ? 4M.
rt . The doctrine as to banks is differently held In some other States. See Daly v. Butehcra
and Drovers' Bank^ 56 Mo. 94 ; s. c, 17 Am. Rep. C63 ; Daveyv. Jonea^ post ; Bank of Lf)ui»
ville V. First Tfat Bank of Knan^Wf, 8 Baxt. 101 ; g. c, 85 Am. Rep. 691, and note, 635.

Digitized by





Thielman v. Gueblk.

(82 La. Ann. aBO.)
J^egoiiable instrumfni — n4ite payaMe on drmand — protest and noiide*

A demand note must be protested and notice given within a reasonable time to
bold an indorser, and the fact that the indorsement was for accommodation,
and that the note bears interest makes no difference. A delay of four years
lield unreasonable.

40TI0X against indorser on demand note. The opinion states
the facts. The plain ti ft had judgment helow.

Branghn, Buck cP Dinkelsptel sluA Charles O, O^^ew, for appellee.

C, If. Lavillehenvre and Carlton Huntj for Wintz, appellant.

Wjiiti:, J. Tlie plaintiflf sues Gueble & Nippert and F. Wintz, the
former as makers, the latter as indorser, of two demand notes, the one
for $1,500, the other $300, dated respectively, the one June 22d, ilio
other June 27, 1S74, both drawn by OueWe & Nippert to the order
of F. Wintz, and by him indorsed in blank. There was judgment

Digitized by



TUielman v. Gueble.

below in favor of the drawers and against the iudorser, the latter
having alono appealed . Tlie defense of the indorser is want of de-
mand, protest, and notice, and discharge resulting from the bank-
ruptcy of the drawers, and the conduct of the plaintiff in the bank-
ruptcy proceedings. Before passing on the sufficiency of the protest
and notice, it becomes necessary to consider whether the indorser
was entitled to notice, the plaintiff contending that his reliition
being that of a sui*ety not within the benefits of the law merehaut,
he was not discharged by want of reasonable protest and notice.
The solution of this issue presents two questions for our determina-
tion : First, where one is sued eo nomine as an indorser, is evidence
admissible to show, under the general-relief prayer, that the de-
fendant was not an indorser, but a surety? If the evidence be in
the record tending to that end, ought it to be considered in the ab-
sence of all formal objection to its introduction ? If yes, does the
proof in the record show their relation of suretyship; and if so, was
protest necessary ? 1st If the person here sued as indorser was,
on the face of the note, not a party to it, in the commercial sense
of the word, we have no doubt that although sued as an indorser

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 31 of 123)