(227 P.) sent one or two weeks in advance of maturity. was decided upon the theory that the eviOn November 9, 1918, the company wrote dence was sufficient to support a finding of Walmer saying two designated loans had been paid, asking him to send the papers, and inviting him to select other loans to replace them. On April 23, 1920, the company notified him by letter that another note was due the first of the next month, asked him to send the papers, and mentioned other loans as suitable to replace it, saying: real or apparent agency, and upon this issue the decision is applicable. Where the statute controls, because of the assignment not being recorded, a payment to the mortgagee discharges the debt by its own force and not upon the theory that an agency is established, although the same considerations of policy are back of both the statute "Please let us know by return mail the and the unwritten law. amount you wish to have invested." The plaintiff testified that Walmer purchased a number of notes and mortgages from the Pettyjohn Company; that some were paid in cash and in some cases new notes were given in place of the old ones; that the company would mail a check for the interest, and Walmer would usually take the coupons to the company's office in person, and that this was also true with reference to payments upon the principal of a note; that he had a number of other investments besides the mortgages purchased from this company; that sometimes the person owing the note would pay the interest and principal direct to him, but usually the money was paid on the Pettyjohn loans to the company and transmitted by it. Walmer's son testified that his father had been dealing with the Pettyjohn Company for eight or ten or twelve years, buying mortgages and notes during that time; that the custom was for the company to send the interest to him in advance of its maturity (although this was not always done), the coupons being then returned to the company-or the note, in the case of full payment. To the question "And that was practically a continuous course of business all during that time?" he answered: "Well, similar I suppose." The Redinger mortgage contained a clause by which the mortgagor agreed to keep a building insured and to deliver all policies to the mortgagee. Such an insurance policy was delivered to the Pettyjohn Company, which retained it, giving Walmer a certificate acknowledging its possession. The situation is somewhat analogous to that presented in Fowle v. Outcalt, 64 Kan. 352, 67 Pac. 889, where the assignee of a mortgage note was held bound by a payment made to the original payee by reason of having acquiesced in the payment of a number of coupons in the same manner. The case was decided after the enactment in 1897 and 1899 of the statute already referred to regarding the recording of assignments of mortgages, but the transactions out of which the litigation grew took place before that time, so that its provisions were not involved. The opinion laid considerable stress upon the fact that the mortgagor had no notice of the assignment, and some features tending to strengthen the debtor's position are not present here. However, the case In another case arising before the assignment record statute was passed payment of a mortgage note and its coupons to the mortgagee after an assignment was held not to bind the assignee, where at the time of such payments, which were made at a place other than that designated, the note and coupons bore indorsements in full to the assignee. Walter v. Logan, 63 Kan. 193, 65 Pac. 225. Stress was laid upon the circumstance that the indorsement on the coupons gave notice to the mortgagor of a change in ownership, but the facts were not sufficiently like those of the present case to make the result determinative here. A different conclusion was reached in Doe v. Callow, 64 Kan 886, 67 Pac 824, a Kansas case, where the rights of the parties became fixed before the enactment of the statute relating to the record of assignments. There the mortgagee guaranteed the payment of the coupons at maturity and of the note within two years after it became due, and provision was made in case of the mortgagor's default for the delivery of the note and mortgage to the mortgagee for foreclosure. The mortgagor paid the interest and principal to the mortgagee at maturity, and had no notice of a change of ownership until 15 months after payment was completed. These facts were held to justify a finding that the mortgagee was the agent of the assignee. An agency to collect was held to be established by the dealings between the mortgagee and assignee in Hansford v. Meserve, 97 Kan. 450, 53 Pac. 835, decided in 1898. In the official report "aware" is printed for "unaware" in the sentence, "The plaintiff was unaware that the company had sold the mortgage securities, but supposed it to be still the owner." A payment of part of the principal of a mortgage debt under a clause allowing part payments in multiples of $100 at the times when interest was due has been held to be binding upon the mortgagee, although made to the broker who negotiated the loan, on the theory that the course of dealing and correspondence warranted a finding that the broker was the general agent of the mortgagee in the loan business. Hamlin v. Nace, 99 Kan. 286, 161 Pac. 655. In the following cases the evidence was held not to show agency to receive payment: Bronson v. Ashlock, 2 Kan. App. 255, 41 Pac. 1068, where agency to collect the in terest was held not to establish agency to receive any part of the principal before due; Hall v. Smith, 3 Kan. App. 685, 44 Pac. 908, where payment was made at a different place from that designated; Best v. Crall, 23 Kan. 482, 33 Am. Rep. 185, where the maker of a promissory note paid the payee after it had been indorsed and delivered to a bank; Detwilder v. Heckenlaible, 63 Kan. 627, 66 Pac. 657, where the borrower made the broker through whom a loan was obtained his agent to make payment; Goodyear v. Williams, 73 Kan. 192, 85 Pac. 300, where declarations of the alleged agent were held incompetent, and estoppel against the creditor was held not to have arisen from facts of which he had no notice. The present case differs in some respects from any of those cited. The fact that the assignment was recorded, under the statute making such record constructive notice to the mortgagor, is an important element here. However, if the assignment had not been recorded the question of agency, real or apparent, could not arise, for in that situation the payment to the mortgagee would discharge the debt regardless of that matter. This court is of the opinion that the evidence justified a finding that the Pettyjohn Company either was actually the agent of Walmer for the purpose of receiving payment of the interest and part payment of the principal of the note or by its course of dealing had given the company such apparent authority in the matter as to create an estoppel to deny the existence of such agency. The judgment is affirmed. JOHNSTON, C. J., and MARSHALL, DAWSON, HARVEY, and HOPKINS, JJ., concur. MASON, J. (dissenting). My own view is that the evidence does not warrant a finding taining possession of the coupons and note until he received his money. When prior to the maturity of a coupon its amount was sent him by the company, which was an indorser and guarantor, he waived nothing by delivering the coupon in return. Whether or not the mortgagor in turning his money over to the company intended to make it his agent for its transmission to the owner of the note is immaterial. He could have protected himself fully by demanding the production of the papers and the indorsement of the partial payments on the note, and doubtless he would have taken this precaution if he had not had confidence in the company's financial responsibility. The entries on the company's books show considerable dealing between it and the assignee of the mortgage, but do not tend to establish agency. The mortgagor is not shown to have had knowledge of these transactions, and so could not have been misled by them so as to make them the basis of an estoppel. No thirty days' notice of an intention to make the part payments on the principal appears ever to have been given, although this would be unimportant, if the company had real or apparent authority to act for the holder of the note in all matters connected therewith, since it could then have waived the notice. BURCH, J., joins in this dissent. HOOPS v. PHOENIX UTILITIES CO. (No. 25514.) (Supreme Court of Kansas. July 5, 1924.) (Syllabus by the Court.) I. Master and servant 371-Place where ties loaded for transportation to place needed held "about" work of employer within Compensation Act. and unloaded at a station half a mile from the ed by employees of the company to places where they were needed in the railroad track which was being constructed. Held, the place where the ties were so loaded was "about" the work of the company, as that word is used in R. S. 44-505. A company engaged in engineering work, as of agency or estoppel, a conclusion to which defined by R. S. 44-508, had ties shipped in these considerations seem to me to give sup nearest point of the railway track under conport: The owner of the note, having restruction. There the ties were loaded and haulcorded the assignment to him, omitted no duty he owed to the maker. There was no occasion for his designating a new place of payment, if he was satisfied, as he appears to have been, to have the debt remain payable at the company's office. To preserve his rights in their entirety it was necessary for him to have the coupons and note there on the date of their respective maturity in the hands of some one authorized to receive payment. His omission to do so might, by preventing a proper presentation for payment, release a party secondarily liable, but the effect as between the holder and the maker would merely be the same as a tender (R. S. 52-701), to stop the running of interest. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, About.] 2. Master and servant ~385(13)—Admission of testimony not affecting compensation award held immaterial. A complaint that the amount of the award was excessive is examined, and held to be without substantial merit. Appeal from District Court, Labette Coun He protected his own interests by re- ty; Elmer C. Clark, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (227 P.) Proceedings under the Workmen's Com-, days thereafter he told appellant's superpensation Act by J. E. Hoops, opposed by the intendent of the injury, and spoke of it as Phoenix Utilities Company, employer. From an order granting an award, the employer appeals. Affirmed. P. D. Gardiner and O. W. Helsel, both of Wichita, and L. E. Goodrich, of Parsons, for appellant. Carl V. Rice, of Parsons, for appellee. HARVEY, J. This is an appeal from an award and judgment in favor of the employee in a case arising under the Workmen's Compensation Act. Appellant contends, first, that the accident causing the injury did not occur "in, on or about" the work of the employer as that term is used in R. S. 41–505. and, second, that the compensation allowed is excessive. [1] The Phoenix Utilities Company had a contract for constructing a railroad spur track about four miles long from a point on the Frisco right of way one-half mile from Straus, Kan., south to Service. Ties used in constructing the spur track were shipped by rail to Straus, and there unloaded from the car. Employees of appellant then loaded the ties on wagons and hauled them to places along the spur track wherever needed. Appellee was a teamster in the employ of appellant hauling ties. While loading ties at Straus and straightening the ties on his load as they were thrown on by other employees of appellant, his hand was caught between two ties, causing him injury. Ap pellant contends that it had no supervision or control over the right of way or yards of the Frisco at Straus; that the track it was constructing began half a mile from there, hence that appellee was not "in, on or about" its work or any premises under its control. The statute applies to "employment in the course of the employer's trade or business, in, on or about building or engineering work. R. S. 44-505. "Engineering work means any work in the construction, alteration, extension, repair, or demolition of a railway. * * R. S. 44-508. The word "about," as used in the statute, is one of locality. Bevard v. Coal Co., 101 Kan. 207, 214, 215, 165 Pac. 657; Hicks v. Swift & Co., 101 Kan. 760, 762, 168 Pac. 905. The appellant in this case was engaged in the construction of a railway. The yard at Straus where its material was piled was as much a part of the locality of its work as was the place along the route of the railroad being constructed where they were unloaded, and it is not material who owned the ground or right of way of the Frisco where the injury occurred any more than who owned the ground or right of way where the material was being unloaded. [2] Appellant contends that the award is excessive. Appellee's hand was caught between two ties and injured. Within five having his finger mashed. Within ninety days he filed with appellant a claim for damages which stated "his little finger on his left hand was crushed, totally disabling him from performing manual labor for a period of over two months. The first joint of the finger was crushed, and claimant is informed by his physician that the second joint of the finger will be permanently stiff." He claimed permanent partial disability, and stated that he had expended and was liable for about $5 for medical attention. Later, and within due time, he made a demand upon appellant for arbitration and an application for the appointment of an arbitrator which recited, "his little finger on his left hand was crushed between two ties; that because of this injury he was totally disabled from performing his duties or any part thereof for a period of about two months; that by reason of this injury he is permanently partially disabled." The appellant in writing waived notice of the application for the appointment and agreed that an arbitrator might be appointed, but stated that the company "does not waive any defense that it may be entitled to present to said arbitrator." In the hearing before the arbitrator it developed that the finger was stiff, the tendons being drawn, and that this injury was permanent; that there was a fracture of the end of the ulna in the wrist, and that this probably caused the drawing up of the tendons which made the finger stiff. Appellant's complaint is that no claim was made for damages because of an injury to the wrist; that it never gave its consent to arbitrate any claim for damages for a wrist injury; that the arbitrator was without authority to hear evidence pertaining to the wrist injury; and that the award was improperly based upon evidence of injury to the finger and injury to the wrist. Appellant's complaint in this respect is not so well founded as it would have it appear. When plaintiff made written claim for compensation, defendant asked him to submit to an examination by its physician. This was done. Defendant's physician took an X-ray photograph of the hand and wrist and discovered the fracture of the end of the ulna bone in the wrist, but said nothing to plaintiff about that. Plaintiff's physician did not use the X-ray, and thought the injury in the wrist was a sprain, temporary in its nature, and that the permanent disability was in the finger. At the hearing before the arbitrator the X-ray was used, and plaintiff for the first time learned of the fracture in the wrist. Upon a hearing before the court of exceptions to the findings of the arbitrator defendant contended that plaintiff's claim had been shifted since it had been filed by a claim of an injury to the wrist in addition to the injury to the finger, and that it had Walter F. Jones, of Hutchinson, for plaintiff. John R. Beeching, John F. Rhodes, and William H. Burnett, all of Hutchinson, for defendant Noonan. BURCH, J. The action is one for a de not consented to an arbitration of that in-ty, and others for declaratory judgment. jury. The court permitted defendant to of- Judgment rendered. fer all the evidence it desired to offer on the injury to the wrist. This tended to disclose that the fracture in the wrist caused the tendons leading to the finger to be drawn, and this was what made the finger stiff. The award allowed was the minimum for partial permanent disability, and is the same award that would have been allowed had the proof simply shown the finger to be stiff as a result of the accident without any showing at all as to an injury to the wrist. Hence there is no theory of the case upon which it can be said to be to defendant's detriment that evidence was offered concerning the wrist injury. With this view of the case it is not necessary to discuss some of the specific points attempted to be raised by af appellant. The judgment of the court below is firmed. All the Justices concurring. claratory judgment within the court's jurisdiction in mandamus, determining the duty of the county clerk in respect to preparation of the ballot for the primary election to be held on August 5, 1914. kinson was elected county treasurer of Reno At the general election in 1922, L. J. Adcounty, for the term beginning October, 1923, and ending October, 1925. He failed to qual ify, and Frank Y. Lewis was appointed by the board of county commissioners to fill the vacancy. A. E. Noonan has filed his declaration as a Republican candidate for the primary election nomination for the unexpired term. Unless there is a vacancy to be filled by election at the general election in November, 1924, for the unexpired term, and unless nomination of candidates to fill STATE ex rel. BROWN. County Atty., v. the vacancy must be made at the primary LUTZ, County Clerk, et al. (No. 25865.) (Supreme Court of Kansas. July 5, 1924.) (Syllabus by the Court.) 1. Counties 65-Term of person elected county treasurer in 1922, for term beginning 1923, construed. The person elected county treasurer in 1922, for the term beginning October, 1923, and ending October, 1925, failed to qualify, and the board of county commissioners filled the vacan cy by appointment. Held, the appointee holds until the general election, occurring in November, 1924. The vacancy is then to be filled by election of a candidate for the office nominated at the primary election to be held in August, 1924. The officer elected may qualify, and enter upon the duties of his office immediately after election, and may hold during the unexpired term. 2. Counties 65-Term of county treasurer not affected by fact that officer for regular term is to be nominated and elected. The foregoing declaration is not affected by the fact that a county treasurer for the regular term, beginning in October, 1925, is also to be nominated and elected in 1924. 3. Elections 126(1)-Declaration of candi- election, Noonan's name has no place on the primary election ballot. The filling of vacancies in all county of fices is provided for by R. S. 25-312, which reads as follows: and in the supreme or district courts, unless "All vacancies in any state or county office, otherwise provided for by law, shall be filled by appointment from the Governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election." The terms of office of persons chosen to fill vacancies is provided for by R. S. 25-314, which reads as follows: "Any of said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and when elected they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified; but if appointed, they shall hold the same only until their successors are elected and qualified." [1, 2] Applying these statutes when Adkinson failed to qualify, there was a vacancy in the office of county treasurer, to be filled by appointment extending to the general election of 1924. At that election the vacan cy is to be filled by the election of a person to hold during the unexpired term, who may qualify and enter upon his duties immediate ly after election. Since the Legislature may make changes in Proceeding by the State, on the relation terms of office, R. S. 25-314, is subject to an of H. F. Brown, as County Attorney, against implied proviso, as R. S. 25-312, is subject to F. R. Lutz, as County Clerk, of Reno Coun- the express proviso, "unless otherwise pro For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (227 P.) vided by law." What other provision of law must be considered? It is conceded there is none except R. S. 19-504, which reads as follows: "In case the office of county treasurer shall become vacant, the board of county commissioners shall appoint a suitable person to perform the duties of such treasurer, and the person so appointed, upon giving bond, with the like sureties and conditions as that required in county treasurers bonds, and in such sum as said board shall direct, shall be invested with all the duties of such treasurer, until such vacancy shall be filled or such disability removed." On one side it is contended that, if power of appointing to a county office be vested elsewhere than in the Governor, R. S. 25312, has no further application to that office, and, consequently, R. S. 19-504 is complete, so far as filling vacancy in office of the county treasurer and term of the appointee are concerned. On the other side it is contended R. S. 25312 and 25-314, are general provisions which control, except so far as modified by other legislation, and in this instance R. S. 25-312, alone is modified, to the extent only that the appointment is to be made by the county commissioners. The court agrees with the latter view. There was good reason to transfer power of temporary appointment from the Governor to the board of county commissioners, which has general charge of county affairs, is able to act advisedly in all cases, and is able to act quickly in an emergency. There was no reason for making appointment by the board of county commissioners, instead of by the Governor, extend to end of term, notwithstanding a general election should supervene. R. S. 19-504, plainly contemplates a temporary filling of the office. The appointee of the board of county commissioners is not invested with the duties of office to the end of the term, but merely until the vacancy is filled. Filled how? R. S. 25-312, the only statute on the subject, answers the question -by election at the next general election after vacancy occurs. R. S. 25-314, unqualified by R. S. 19-504, then fixes the time the elected incumbent shall hold during the unexpired term. Since vacancies in the office of county treasurer are to be filled for the unexpired term at general elections only, nomination of candidates to fill such vacancies must be by primary election, under R. S. 25-201, and not under R. S. 25-301 and 25-302, which were superseded, so far as general elections were concerned, by the primary law. The fact that candidates are to be nominated and elected for the regular term beginning in October, 1925, has no relevancy to the subject of filling the vacancy for the unexpired term. [3] On June 24, 1924, E. E. Woodson filed his declaration as a candidate for the unexpired term. His declaration having been filed after noon of June 20, is a nullity. Bird v. Beggs, 116 Kan. 619, 227 Pac. 529, just decided. Declaratory judgment in accordance with the views which have been expressed. All the Justices concurring. STATE ex rel. RATNER, County Atty., v. (Supreme Court of Kansas. July 5, 1924.) (Syllabus by the Court.) Mandamus 143(1) - Will issue to compel execution if commitment on conviction under prohibitory liquor law, although good behavior and appeal bond filed, but no notice of appeal given. A writ of mandamus will issue to compel a sheriff to execute a commitment issued on a judgment convicting a person of a misdemeanor in violating the prohibitory liquor law, although the latter has given bond under section 62-1705 of the Revised Statutes of 1923 for good behavior and another bond under the same section in double the amount of fine and costs, and in the latter bond has stated that he intends to appeal to the Supreme Court but has not served any notice of appeal nor done anything further toward taking an appeal, although two years have not elapsed since the judgment was rendered. Original mandamus by the State, on the relation of Payne H. Ratner County Attor ney of Labette County, against A. C. Mann, On motion to Sheriff of Labette County. quash alternative writ. Motion denied. Charles B. Griffith, Atty. Gen., Payne H. Ratner, Co. Atty., of Parsons, and Charles H. Cory, Deputy Co. Atty., of Oswego, for plaintiff. E. L. Burton, of Parsons, for defendant. MARSHALL, J. This is an original proceeding in mandamus to compel the defendant, the sheriff of Labette county, to execute a commitment now in his hands, commanding him to confine George Brecheisen in the jail of that county for a period of 4 months and until a fine of $200 and costs are paid. The defendant has filed a motion to quash the alternative writ of mandamus. The alternative writ shows that on February 16, 1923, George Brecheisen was found guilty of unlawfully having intoxicating liquor in his possession; that on April 10, 1923, he was, by the district court of Labette county, sentenced to be confined in the county jail of that county for a period of 4 months and to pay a fine of $200 and the costs of the action; that he was remanded to the custody of the sheriff for the enforcement of the sentence; that on April 10, 1923, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |