Rand. Com. Paper, § 517; Brandt, Sur. § 11; Handy v. Publishing Co., (Minn.) 42 N. W. Rep. 872; Scott v. Gillmore, 3 Taunt. 226. The plaintiff in error insists that the defendants cannot avail themselves of the illegality of the transaction until they restore to the other party all that has been received from him. The answer made to this position is that the notes were given for the excess of the invoice, which was found to be fraudulent; that there was in fact no excess, and therefore there was nothing to tender back; that the consideration for the notes was illegal, and therefore void. We recommend an affirinance of the judgment.

PER CURIAM. It is so ordered; all the Justices concurring.

(48 Kan. 632)

GILLETTE et al. v. CoOPER et al. (Supreme Court of Kansas. May 7, 1892.) GARNISHMENT-LIEN-DRAFT.

1. Garnishment proceedings bind only such property, money, and credits, not exempt from attachment and garnishment, as belong to the defendant, in the possession of the garnishee, or owing by him to the defendant, at the time of the service of the process upon the garnishee.

2. The garnishee process of the plaintiffs and of the State Bank, having been served upon Cochrane & Farwell several days before the Mumford draft came into their possession, did not become liens on the proceeds of said draft in their hands. But the process in behalf of Cooper & Vanscyoc, having been served upon Cochrane & Farwell after said draft came into their possession, and before the proceeds thereof were paid over to Mumford, became a lien on said draft, and they were entitled to the money arising therefrom to the extent of their claims against Mumford.

(Syllabus by Strang, C.)

Commissioners' decision. Error from district court, Osborne county; CLARK A. SMITH, Judge.

Action by W. P. Gillette and C. J. Gillette against George W. Cooper and J. W. Vanscyoc and the State Bank of Osborne, Kan., to determine the right to certain moneys. On a judgment for defendants, plaintiffs bring error. Affirmed.

R. G. Hays, for plaintiffs in error. E. F. Robinson, for defendants in error.

STRANG, C. Action to determine who is entitled to certain moneys in the hands of Cochrane & Farwell, as garnishees of the plaintiffs and defendants. Cochrane & Farwell, who resided at Osborne, Kan., were solicitors for certain loan companies, | including the Kansas Mortgage Company, of Topeka, Kan. As such solicitors they took the application of W. H. Mumford, of Osborne county, for a loan in the sum of $800, and forwarded it to said mortgage company. The company sent their land examiner to view the land, and on receipt of his report made out and forwarded to Cochrane & Farwell a note and mortgage for the amount of the loan. These papers

were executed by Mumford and wife on the 4th of February, 1889, and recorded and returned to the company at Topeka on the 5th; and on the 18th Cochrane & Farwell received from the company a draft to their order for $733.95, the net proceeds

of said loan. In the mean time, after the company had sent to Cochrane & Farwell the papers for execution, the latter had advanced, on their own responsibility, several small sums of money to Mumford on said loan. Mumford being in debt to several parties, Cochrane & Farwell were, on the 7th of said month, served with process of garnishment by Gillette Bros., the plaintiffs herein. On the 10th they were served with like process in behalf of the State Bank, and on the 18th, after they had received from the loan company the draft of $733.95, and before they had paid it out, except to repay themselves the amount advanced by them to Mumford, they were garnished by the defendants Cooper & Vanseyoc. On the trial the court found that the plaintiffs and the State Bank had no lien by reason of their garnishments; that the defendants Cooper & Vanseyoc were entitled to the first lien on the money in the hands of Cochrane & Farwell belonging to Mumford; and that the State Bank was entitled to the balance of the money on an agreement with Mumford, who dropped out of the case.

The question here is, how should the money in the hands of Cochrane & Farwell have been distributed under the facts as they appear, which are undisputed. This court said in the case of Johnson v. Brant, 38 Kan. 754, 17 Pac. Rep. 794, that “garnishment proceedings bind such property, money, and credits, and only such as belong to the defendant, and are not exempt from attachment and garnishment, and are in the hands of the garnishee, or owing by him to the defendant, at the time when the garnishee notice is served upon the garnishee." This case was referred to and approved in the case of Ives v. Addison, 39 Kan. 175, 17 Pac. Rep. 797. Coch. rane & Farwell were in no wise indebted to Mumford until they received from the mortgage company the draft in payment of the Mumford loan. Under the facts of this case no contractual or other relation existed between Mumford and Cochrane & Farwell whereby the latter were indebted to him in any sum prior to the receipt of the said draft. Up to that period any indebtedness between them was in their favor, they having advanced to him several small sums upon their own responsibility, for which they were to be reimbursed out of the proceeds of the loan when made by the company. Nor did Cochrane & Farwell have in their possession any moneys or credits belonging to Mumford, prior to the receipt by them of the draft from the mortgage company. When the company made their draft in payment of the Mumford loan they made it payable to Cochrane & Farwell. But it was for the use of Mumford. It represented the proceeds of the loan made by him from the mortgage company. From the receipt of said draft by Cochrane & Farwell until the proceeds thereof were paid over to Mumford they had in their possession moneys belonging to him to the amount of said draft, less the advances made by them to him which were to come out of the proceeds of said loan. Under the authorities above cited process of garvishment served upon Cochrane & Farwell,

after the receipt of said draft, and before the payment by them of its proceeds to Mumford, attached to and bound the money represented by said draft in their possession. But process of garnishment served upon Cochrane & Farwell before the reception by them of the draft belongIng to Mumford did not and could not attach to and bind the proceeds of said draft in their possession, for the reason that it was not yet in their possession. The facts of the case show that the garnishee process in behalf of the plaintiffs, Gillette Bros., was served upon Cochrane & Farwell on the 7th of February, 1889, and that of the State Bank on the 10th of the same month, while Cochrane & Farwell did not come into possession of the Mumford draft until the morning of the 18th of said month. It follows, then, that the trial court was right in holding that neither the plaintiffs nor the State Bank obtained any lien on the proceeds of the said draft in the possession of Cochrane & Farwell. Cooper & Vanscy oc were more fortunate, for the facts show that they got service of garnishee process upon Cochrane & Farwell on the 18th, after they had received the Mumford draft from the mortgage company, and while the proceeds thereof were still in their possession. This process, therefore, became a lien upon the money in the hands of the garnishees belonging to Mumford. It follows that the trial court was right in so holding. We therefore recommend that its judgment be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(48 Kan. 593)

HAWLEY V. KANSAS & TEXAS COAL Co. et al.

(Supreme Court of Kansas. May 7, 1892.) CONTRACT OF HIRING-CARRIERS-REBATE ON FREIGHT-VALIDITY OF CONTRACT.

1. Where a person, by a parol agreement, is employed by a coal company to carry on and conduct its business at a particular place. but for no definite period of time, and his compensation is to be $125 per month and one third of the net profits of the business, and nothing is said about real estate, and the coal company purchases real estate upon which to locate its coal yard, and its coal yard is located upon such real estate, and a large loss occurs in carrying on the coal business, but the real estate advances in value to an amount greater than the loss in the coal business, held, under the agreement and the circumstances of this case, that the employe is not entitled to any portion of the enhanced value of the real estate.

2. Where a person is engaged in the business of dealing in and furnishing railroad piles, and the railroad company over whose railroad he transports the same has a fixed rate or price for the transportation of such property, but it has favored customers, for whom it will transport such property at a lower rate by first charging the full price, and afterwards, when the transportation is completed, paying back a certain proportion thereof as a rebate, and the owner of the piles procures them, by an agreement with a favored customer, to be transported in the name of such favored customer, who afterwards receives the rebate, held, that the whole transaction is in violation of law and public policy, and the owner of the piles, who procured them to be

so transported, cannot afterwards recover the amount of the rebate from the favored customer.

(Syllabus by the Court.)

Error from district court, Shawnee county; JOHN GUTHRIE, Judge.

Action by Robert C. Hawley against the Kansas & Texas Coal Company and the Rogers Coal Company to recover for services. On a judgment sustaining defendants' demurrer to his evidence he brings error. Affirmed.

Martin & Keeler, for plaintiff in error. Gleed & Gleed, for defendants in error.

VALENTINE, J. This was an action brought in the district court of Shawnee county on March 13, 1888, by Robert C. Hawley, against the Kansas & Texas Coal Company and the Rogers Coal Company, in which action the plaintiff set forth two causes of action, or two supposed causes of action. The case was tried before the court and a jury, and at the close of the evidence on the part of the plaintiff the defendants demurred thereto upon the ground that it did not prove any cause of action, and the court sustained the demurrer, and rendered judgment in favor of the defendants and against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review.

The plaintiff's evidence was principally his own testimony, and as to the first cause of action it tended to prove as follows: About February, 1885, the plaintiff resided in Springfield, Mo. The Rogers Coal Company, through its president, B. F. Hobart, who resided at the same place, by a parol agreement employed the plain. tiff to organize and conduct a branch of its business in the city of Topeka, Kan., and agreed to pay him for his services $125 per month and one third of the net profits of its business at that place. Soon afterwards the business was started in Topeka, and it was conducted by the plaintiff for the company and its successor, the Kansas & Texas Coal Company, up to May 1, 1887, when the plaintiff quit doing business for the company. He was paid regularly $125 per month during all the time that he was in the company's service, the aggregate amount paid him being $3,375; but there were no profits in the business to be divided, but, on the contrary, there was a loss, amounting in The comthe aggregate to $8,447.62. pany at the beginning purchased real estate for a coal yard, which real estate was afterwards and in the fall of 1886 taken from the company by a railroad company, upon which real estate the coal company realized a profit of about $5,750. Immediately afterwards the coal company purchased other real estate for a coal yard, the title to which was taken in the name of E. B. Loveland, its vice president, which real estate the company or its vice president still owns, so far as is shown. But such real estate has so advanced in value that, taking all the profits of the company upon its transactions in real estate, they more than cover all the losses which the company sustained in carrying on its coal business; and, if

the business for which the plaintiff was employed included the company's transactions in real estate, and if the plaintiff is entitled to one third of the net profits of all the company's transactions in real estate as well as in its coal business, then the plaintiff will be entitled to recover something on his first alleged cause of action; but if the company's transactions in real estate are not to be considered as a part of its business for the carrying on of which the plaintiff was employed, then he is not entitled to recover anything on his first alleged cause of action. It was the opinion of the court below upon the evidence, and it is the opinion of this court, that the company's transactions in real estate have nothing to do with its employment of the plaintiff, and for the following reasons: The contract of employment was wholly in parol. The employment was not for any definite period of time, nor for any considerable time. Nothing was said in the contract concerning real estate. It was not known at the time whether the land upon which the company's coal yard would afterwards be located would be leased or purchased, nor whether it would be wanted for any considerable length of time. In estimating profits and losses, interest at the rate of 10 per cent. per annum was to be considered for all money invested in the coal business, but no provision was made for allowing interest upon any money invested in real estate. The plaintiff was to be paid monthly, and the relations which were to exist between the plaintiff and the coal company could be terminated at any time by either party. No provision was made in the contract for estimating or determining what the profits might be upon any real estate which might be purchased or owned by the coal company; and when the company realized the profits of $5,750 upon the real estate which it first purchased, and which was afterwards taken by the railroad company, and which profits it realized in cash several months before the plaintiff quit the company's employment, no suggestion was made by either party for a division of the profits. Besides, the plaintiff kept the books of the company at Topeka, and kept the accounts relating to the real estate and improvements thereon separate ly from the accounts relating to the coal business. It seems that the claim for a division of the profits upon real estate was an afterthought, and that it did not occur to the plaintiff to claim any such profits until some time after he quit the employment of the coal company.

It is further claimed that the court below erred in sustaining the defendants' demurrer to the plaintiff's evidence introduced in support of his second alleged cause of action. This decision of the court below we think was correct, and probably for more than one reason; but, as the plaintiff seems to suppose that the court below sustained the demurrer upon the one ground only that the contract between the plaintiff and Hobart to procure the transportation of the plaintiff's railroad piles by a railroad company for a less amount than the railroad company

charged others for like transportation was in violation of law, and contrary to public policy, we shall decide this question upon the same ground. The transportation of these piles had nothing to do with the coal business. It would seem from the testimony that the railroad company had a regular rate or price for the transportation of piles, but that as to certain of its customers it would in effect transport them at a lower rate, and that this would be accomplished in the following manner: The full price would first be charged, and afterwards a rebate would be allowed, and paid back to its favored customer. The evidence would seem to show that the coal company was one of the railroad company's favored customers, and that the plaintiff entered into a contract with Hobart in pursuance of which Hobart was to have the piles transported in the coal company's name, with the understanding and agreement that the railroad company should, after the payment of the full price for the transportation, and after the transportation had been completed, pay back to its favored customer, the coal company, the amount of the rebate, which amount Hobart, as its president, should afterwards pay to the plaintiff. The plaintiff claims that, in pursuance of such a contract, transportation, and payment of rebate, the coal company actually received the amount of $414.19, as rebate, which it now refuses to pay to him. Now, this whole transaction, taking the plaintiff's evidence as true, is, we think, in violation of law and of public policy. It is in violation of sections 10 and 11 of chapter 124 of the Laws of 1883, (Gen. St. 1889, pars. 1333, 1334,) which read as follows: "Sec. 10. No railroad company shall charge, de. mand, or receive from any person, company, or corporation, for the transportation of any property or for any other service, a greater sum than it shall at the same time charge, demand, or receive from any other person, company, or corporation for a like service from the same place, or upon like condition and under similar circumstances; and all concessions of rates, drawbacks, and contracts for special rates shall be open to and allowed all persons, companies, and corporations alike; nor shall it charge more for transporting freight from any point on its line than a fair and just proportion of the price it charges for the same kind of freight transported from any other point. Sec. 11. No railroad company shall charge, demand, or receive from any person, compa. ny, or corporation, an unreasonable price for the transportation of persons or prop. erty, or for the hauling or storing of freight, or for the use of its cars, or for any privilege or service afforded by it in the transaction of its business as a railroad company. And upon complaint in writing, made to the board of railroad commissioners, that an unreasonable price has been charged, such board shall investigate said complaint, and if sustained shall make a certificate under their seal, setting forth what is a reasonable charge for the service rendered, which shall be prima facie evidence of the matters therein stated." If, however, any of this transportation was

to be and was from one state into another, then the transportation was also in violation of the provisions of the interstate commerce act, which also provides that any such special rate or rebate is an unjust discrimination, and unlawful, and shall be prohibited. 24 U. S. St. at Large, c. 104, §§ 1-3. It has been the uniform rule of this court, and indeed in all courts, to hold that contracts tainted with illegality are absolutely void; and certainly no person can be permitted to go into a court of justice with a demand founded only upon an illegal transaction in which he has been an active participant. Among the decisions of this court, see Hinnen v. Newman, 35 Kan. 709, 12 Pac. Rep. 144. We think the decision of the court below upon the demurrer to the evidence is correct, and therefore its judgment will be affirmed.

All the justices concurring. (48 Kan. 581)

MCKEY et al. v. LAUFLIN. (Supreme Court of Kansas. May 7, 1892.)

REPLEVIN-ACTION ON BOND.

Where a party commences an action in replevin, obtains possession of the property in dispute, and then voluntarily dismisses his suit, without prejudice, but still retains the property secured under the order of delivery, the defendant may maintain an action upon the replevin bond, if the title to such property be in him, and recover damages for the value of the property so taken.

(Syllabus by Green, C.)

Commissioners' decision. Error from district court, Elk county; M. G. TROup, Judge.

Action by William Lauflin against G.W. McKey. A. F. Eby, and William Stow on a replevin bond. On a judgment for plaintiff, defendants bring error. Affirmed.

Douthitt & Ayers, for plaintiffs in error. L. Scott, for defendant in error.

GREEN, C. William Stow, one of the plaintiffs in error, brought an action in replevin in the district court of Elk county to recover the possession of a mule, which he alleged was worth $70. He gave an undertaking as required by the statute, obtained an order of delivery, and through it secured the possession of the mule, and then dismissed his action without prejudice. The defendant in error commenced his action in the district court of Elk county upon the replevin bond, alleging the institution of the replevin action, the giving of the bond, the obtaining posses. sion of the mule, and the dismissal of the action; that the mule was worth $75; that the value of the mule as a work animal was 50 cents a day; that Stow, one of the defendants, had bad the use of the mule for 408 days, and asked damages on the bond in the sum of $279 and for attorneys' fees. The plaintiff did not allege that he was the owner of the mule. William Stow, one of the defendants, answered that he was the owner of the property replevied, under and by virtue of a chattel mortgage, and was entitled to the possession of the same; and further alleged that the plaintiff was not the owner of the property in controversy. A jury was waived, and the court

found that the value of the property replevied was $40, and gave judgment for that amount against the defendants upon the bond. It is urged by the plaintiff in error that, because the plaintiff below did not allege in his petition that he was the owner of the mule, the evidence offered as to the value of the mule was irrelevant and immaterial, and that he could not, under the averments of his petition, recover the value of the animal. The sufficiency of the petition was not challenged. The parties went to trial, and introduced evidence as to the title and value of the mule, without objection. The pleadings were treated as if the issues had been prop. erly made, and we do not think the plaintiffs in error can now object to the petition. It is true that the defendant in the original replevin suit had a right to have his title to the property tried, notwithstanding the dismissal by the plaintiff. McVey v. Burns, 14 Kan. 291. But, if he does not exercise such right, he is not precluded from his remedy on the bond. "One of the conditions of the bond is that the plaintiff shall duly prosecute his action. That is a separate and independent condition. Upon breach of that condition the defendant is entitled to recover all damages he has sustained thereby. The fact that he had not pursued one remedy given by the statute does not deprive him of the general remedy upon the.bɔnd; and as the bond was conditioned that the plaintiff should prosecute the action, and as by the dismissal thereof plaintiff has so failed to prosecute, and as by means of the bond the plaintiff has obtained possession of the property apparently belonging to the defendant, the defendant is prima facie, at least, entitled to recover of the sureties the value of the property thus taken from him." Manning v. Manning, 26 Kan. 101. We recommend an affirmance of the judgment.

PER CURIAM. It is so ordered; all the justices concurring.

(48 Kan. 565) MAYNARD et al. v. OLSON, County Super intendent of Public Instruction. (Supreme Court of Kansas. May 7, 1892.) SCHOOLS-USE OF TEXT-BOOKS-BOND OF PUB

LISHERS-MANDAMUS.

Where a county text-book board prescribes certain text-books to be used in the public schools of the county, and fixes the amount of the bonds to be given by the publishers of such books at the. sum of $10,000, and also appoints a committee consisting of the president and secretary of the board and the county attorney to "draw up bonds, and the board does not fix any other or different amount, and does not give any other, further, or different authority to the committee, and the board then adjourns sine die, and afterwards such committee orally approves a bond given by the publishers of a portion of the books selected, in the sum of $4,000, and such bond is not otherwise approved, held that, as the bond was not accepted or approved in accordance with the statute, such publishers are not entitled to a peremptory writ of mandamus to compel the county superintendent of public instruction and ex officio" chairman of the text-book board to deliver to the school districts of the county lists of the text books prescribed by such board.

(Syllabus by the Court.)

Wasn't it a part of that motion that the bond was to be prorated up among the various companies? A. I don't think it was. It was understood, but was not included in the motion. Q. Then the com

sisting of the chairman, secretary, and

VALENTINE, J. This is an action of mandamus, brought originally in this court by Effingham, Maynard & Co. against E. E. Olson, county superintendent of public instruction and ex officio chairman of the text-book board of Riley county, to compel him to deliver to each school district in the county a list of the text-books alleged to have been selected and prescribed by the text-book board on August 28, 1891. Many questions have been presented by the briefs, and in the oral argument of counsel, but, with the view that we have taken of one of the questions, it will not be necessary to consider any of the others, as a decision of that one will be decisive of the whole case. Section 5, c. 171, Laws 1885, (Gen. St. 1889, par. 5868,) provides as follows: "No textbook shall be prescribed in pursuance of the provisions of this act, unless the publishers thereof shall have first filed with the county superintendent of public instruction a guaranty of its price, quality, and permanence of supply for five years, together with a good and sufficient bond for the faithful compliance with said guaranty, conditioned in such sum as the County text-book board may determine and approve." The minutes of the meeting of the text-book board of Riley coun ty of August 28, 1891, with respect to the bond to be given by the book publishers, and its amount and approval, read as follows: "On motion the amount of bonds was fixed at $10,000. On motion, president, secretary, and attorney were appointed to draw up bonds Board ad. journed. J. W. LOWDERMILK, Secy." A bond was given by Effingham Maynard & Co. in the sum of $4,000, but it was never approved by the text-book board, nor by any one else, except the aforesaid commit. tee, to wit, the president of the board, the secretary, and the county attorney; and it was not approved by them until after the text-book board had adjourned sine die, and was not then approved in writing, but only orally. Mr. Lowdermilk, in his testimony with regard to this matter, testifies, among other things, as follows: "Question. I will ask you to state whether or not before that meeting adjourned it approved the bond executed by Effingham Maynard & Co., marked 'Exhibit C. Answer. It did not. * * * Q. The bond was fixed at $10,000. Was that all there was to that motion? A. I presume it was. A motion was made to fix the bond at $10,000, and voted on and carried. I recollect in that manner. Q. Wasn't there something said about the bond being prorated? A. I think there was. Q. Then these minutes (showing witness Exhibit B) nowhere show that fact? A. The minutes do not show what was said, but it shows the motion that was carried. Q. v.30P.no.1-2

bonds presented by these several persons to whom awards had been made, and approve them? A. We were appointed to examine the contracts and approve the bond. Q. Did you do that duty? A. We did. Q. This Exhibit C and E is what you did with relation to the plaintiffs, Effingham Maynard & Co.? A. Yes, sir. Q. What did you do with them after you got through? A. I left them in the possession of the county superintendent. Q. You say this committee met; where did it meet? A. At the county superintendent's office. Q. When? A. After supper on that day. Q. After the board had adjourned? A. Yes, sir. Q. Who was present? A. The members of the committee, E. E. Olson, county attorney, and myself. Q. You said you made a contract. Where is that contract? Is this paper marked Exhibit E' what you refer to when you say that you accepted the contract? A. Yes, sir. Q. The board, as a board, never approved your action, did they, in accepting this bond or this award? A. They did not. Q. You may state whether or not at this meeting, by any action had at that time, $4,000 was designated as the bond which Effingham Maynard & Co. should give to the county. A. It was not. Q. These papers were put together by your committee on that occasion, and handed over or left with the county superintendent as they are now? A. They were. Q. I will ask you if you were instructed by the text-book board to examine these bonds of the several persons to whom awards had been made, and then report your action back to the board. We were not. Q. Then you were appointed by the text-book board to examine and approve of the contracts and bonds? A. As I understand the matter, the fixing of the bonds and contracts was left with this committee. Q. Left wholly with the committee? A. Yes, sir. Q. What you did with reference to that matter was done in compliance with the instructions you received from the board? A. It was." The testimony of Mr. Olson, the chairman of the board and the chairman of the committee, was substantially the same as that of Mr. Lowdermilk. Mr. Kimble, the county attorney and a member of the committee, did not testify in the case.

A.

The attorney for the defendant, in his brief in this court, claims that no sufficient bond under the statute was ever given. His language is as follows: "The act providing for a uniform series of text-books (section 5) prescribes that no text-books shall be prescribed in pursuance of the provisions of this act, unless the publisher thereof shall first file with the county superintendent of public instruction a guaranty of its price and quality, and permanence of supply for five years, together with a good and sufficient bond for the faithful compliance with said guaranty, condi