The statute only punishes the seller who knowingly and willfully omits the names or makes a false or incomplete list. There is nothing about the language of the criminal feature depriving a defendant of an opportunity to show lack of knowledge or intention. So it cannot be argued that a mere void sale ipso facto punishes the seller as a mechanical result, and therefore indirectly penalizes him for nonpayment of debt. ceiver, the disposal of the property, and the | L. R. A. 1915E, 917; Glantz v. Gardiner (R. application of the proceeds to the payment I.) 100 Atl. 913, L. R. A. 1917F, 226; note, of his claims, the other creditors interven- L. R. A. 1917F, 230. ing if they desire. Scheve v. Vanderkolk, 97 Neb. 204, 149 N. W. 401. Also, that the creditors may maintain a suit in chancery against the fraudulent vendee to hold him directly liable to them to the extent of their debts when the goods have been resold or their identity lost. Daly v. Sumpter Drug Co., 127 Tenn. 412, 155 S. W. 167, Ann. Cas. 1914B, 1101; Mohoney-Jones Co. v. Sams Bros., 128 Tenn. 207, 159 S. W. 1094. The authorities cited support the text of the note. If the plaintiffs could have proceeded by attachment, garnishment, or levy of execution, why may they not proceed by action to charge the goods in the defendant's hands with their claim? Some of the features of this case were present in Houghton v. Axelsson, 64 Kan. 274, 67 Pac. 825, which was held not to be a creditors' bill. "The action is based solely upon the claim that, by reason of the fraudulent character of the transaction in taking a chattel mortgage on Axelsson's property for more than was due to them, the defendants became the trustees of that property for the benefit of the creditors." 64 Kan. page 276, 67 Pac. page 825. See, also, Bank v. Creek, 101 Kan. 552, 167 Pac. 1053; Kohn v. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. Rep. 941. [3] Another contention is that mercantile creditors only are intended, and that general creditors like the plaintiffs were not to be given the benefit of the statute. It has been held repeatedly, however, that by the term "creditors" is meant all creditors, both mercantile and general, regardless of whether they are judgment creditors or not. Note, L. R. A. 1917F, 232, and authorities there cited; Eklund v. Hopkins, 36 Wash. 179, 78 Pac. 787; People's Savings Bank v. Van Allsburg, 165 Mich. 524, 131 N. W. 101; In re P. Pastene & Co. (Sup.) 156 N. Y. Supp. 524; Nash Hardware Co. v. Morris, 105 Tex. 217, 146 S. W. 874. See, also, Supply Co. v. Smith, 182 Mo. App. 212, 167 S. W. 649. In view of modern legislation and decisions, it is held that the act is valid and that the petition states a cause of action. The order sustaining the demurrer is reversed, and the cause remanded for further proceedings. All the Justices concurring. 1. (103 Kan. 89) TERLESKI v. CARR COAL MINING & (Supreme Court of Kansas. May 11, 1918. (Syllabus by the Court.) MASTER AND SERVANT 286(19)—INJURY TO MINER-DYNAMITE EVIDENCE. A recovery was sought because the defendant furnished to a miner a higher and more sensitive grade of dynamite for blasting purposes than it the miner was treating it as of a lower grade was represented to be, with the result that while there was an explosion which destroyed his sight. Held, that the finding of the jury to the effect that the defendant furnished the plaintiff a higher grade than was called for is supported by sufficient evidence. [2] As to the act itself, it is urged that by reason of the penalty clause the constitutional prohibition against imprisonment for debt except in cases of fraud is infringed. It will be observed that the penalty is not affixed for the failure to pay a debt, but for the willful omission of a name of any creditor or his address from a list required to be furnished. The power of the Legislature to enact bulk sales statutes has been thoroughly established and upheld, as already indicated. Having the power thus to legislate, the authority to punish within reasonable limits the violation of such legislation is necessarily included. Various criminal and other statutes exist for the purpose of preventing or punishing fraud without impairing the constitutional safeguard against imprisonment for debt. Along with this contention is the other that the Legislature has no power to make a sale of this sort more than presump-2. APPEAL AND ERROR 1062(1)—HARMLESS tively void at most, and that nobody can be punished for anything amounting to fraud without being permitted to show that he had no fraudulent intent; but authorities are abundant holding that the Legislature has power to make such sales absolutely void as against creditors, and the penalty is not for failure to pay a debt, but for failure to do the thing expressly enjoined by the statute in reference to preparing a list of creditors. Owosso Carriage & Sleigh Company v. MeIntosh & Warren, 107 Tex. 307, 179 S. W. 257, L. R. A. 1916B, 970; Boise Ass'n of Credit Men v. Ellis, 26 Idaho, 438, 144 Pac. 6, note ERROR-SUBMISSION OF ISSUES. The finding that aggravated damages were not proven renders an assignment of error in respect to the submission of that question to the jury immaterial. Appeal from District Court, Leavenworth County. Action by Peter Terleski against the Carr Coal Mining & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed. A. E. Dempsey, of Leavenworth, for appellant. Lee Bond and M. N. McNaughton, both of Leavenworth, for appellee. JOHNSTON, C. J. Plaintiff recovered nine days prior to the accident it had sold a judgment for $10,000 against the defend- to one of the miners three sticks of dynamite, ant on account of personal injuries sustained and this miner in testifying to this purchase as a result of an explosion of dynamite in stated that one of the three was 60 per cent. defendant's coal mine where plaintiff was The evidence in behalf of the defendant was employed. The defendant appeals. contradictory of that offered by the plaintiff, but taking all of the testimony, direct and circumstantial, it cannot be said that the findings and verdict are without support. The jury found that the defendant had been handling other grades of dynamite than 40 per cent., and had actually sold some of the 60 per cent.; that the stick sold to plaintiff was taken from a box containing 60 per cent. grade and was of a higher grade than 40 per cent.; and that the one who sold the dynamite to plaintiff had reason to believe it was more than 40 per cent. in strength. The findings do not rest on presumptions or conjectures as claimed by the defendant, and while the testimony is not as direct and strong as to the grade of dynamite given to plaintiff as might be desired, we regard it to be sufficient to warrant the submission of the disputed question to the jury, and within the rules under which testimony is measured on an appeal we think that offered by the plaintiff was sufficient to support the findings of the jury. [1] The defendant kept on hand a supply of dynamite to be used by the miners in its employ whenever necessary to do any blasting, and sold it to the miners as they called for it. The defendant's negligence upon which plaintiff's right to recover is based is that it gave the plaintiff a stick of dynamite of a more sensitive grade than that for which he asked, with the result that while tamping it in preparation for a blast it exploded unexpectedly in his face, causing, among other injuries, the loss of plaintiff's sight. A claim for aggravated damages was also made by plaintiff on the ground that the defendant had failed to comply with the statute relating to the maintenance of a telephone system in the mine, but this is no longer material by reason of a negative finding of the jury. The defense was a denial and an allegation that the plaintiff's injuries were the result of his own negligence. The principal question is whether the evidence supports the finding of the jury that the defendant's storekeeper knowingly sold plaintiff a grade of dynamite of a higher percentage than that asked for. Upon this question the evidence was conflicting; that of plaintiff being largely circumstantial. It appears that the plaintiff asked the storekeeper for 40 per cent. dynamite; that the latter handed him a stick wrapped in a piece of paper; and that plaintiff placed it in a drill hole prepared for it and was beginning to tamp it lightly with a broomstick when the charge exploded. There was testimony to the effect that the higher the percentage of dynamite the less force it would take to explode it; that the plaintiff was familiar with the use of 40 per cent. dynamite, which was the kind always used by him during his several years experience as a miner, and he knew how much force could be used in tamping the 40 per cent. grade; and that the force used by him in this instance was not sufficient to have exploded that grade. While the defendant claimed and offered evidence to show that it had never purchased, kept on hand or sold to its miners any other than 40 per cent. dynamite, testimony was given by some of the miners tending to show that defendant's storekeeper had sold both 40 and 60 per cent. dynamite; that they had bought the latter grade from it, and some of the sticks had that grade marked on them and some of them were taken from a box so marked; and that the force with which which the dynamite exploded when used showed it to be of a higher percentage than 40. The books of the defendant showed that [2] It is contended that there was no warrant for submitting the question of aggravated damages to the jury, by reason of the failure of the defendant to provide a proper telephone system connecting the different parts of the mine in accordance with the statutory requirements. Whether or not the question was properly submitted under the evidence is no longer material, since the jury in effect found that plaintiff's injuries were not aggravated by reason of a defective telephone system. The answer to the special question whether the plaintiff's injuries were so aggravated was, "Untold." This was equivalent to saying that there was no evidence showing aggravated damages, and it must be inferred that no such damages was included in the general verdict. There is nothing substantial in the objection to the admission of testimony about which defendant complains. The judgment is affirmed. All the Justices concurring. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes er of the land, that Charles had no interest in it, that the contract expressed a device whereby a gift to Charles was to be effected, and that the obligation to purchase apparently created on the part of the mother and Edgar was destitute of consideration. (Additional Syllabus by Editorial Staff.) 2. ESTOPPEL 22(1)-"ESTOPPEL BY DEED" -RECITAL IN CONTRAct. Estoppel being a matter of substantive law, a recital in a contract is not conclusive unless it operated as a representation or warranty inducing the contract, or was itself of the essence of the contract, or was accepted and acted upon in good faith with a result which it would be inequitable to disturb. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Estoppel by Deed.] Appeal from District Court, Shawnee County. Action by Gertrude E. Moon, as administratrix, etc., against Nancy J. Moon and another. Judgment for plaintiff upon a directed verdict, and defendants appeal. Reversed, and cause remanded for a new trial. Eugene S. Quinton, of Topeka, for appellants. J. J. Schenck, of Topeka, for appellee. BURCH, J. The action was one for specific performance of a contract to pay the purchase price of real estate. The plaintiff recovered, and the defendants appeal. [1] The defendant, Nancy J. Moon, is a widow. She had two sons, Charles Stewart Moon and Edgar L. Moon. Charles Stewart Moon is now deceased, and the plaintiff is his widow and administratrix. The contract sued on reads as follows: "This agreement, made and entered into this, the 22d day of April, 1911, by and between Charles Stewart Moon and his wife, Gertrude E. Moon, parties of the first part, and Nancy J. Moon and Edgar L. Moon, parties of the second part, "Witnesseth: It is hereby stipulated and agreed and mutually understood that the said Nancy J. Moon is the owner of an undivided one-half (2) interest in the northwest (N. W.) quarter (4) of section sixteen (16), and the northeast quarter (4) of section seventeen (17), township twelve (12), range fourteen (14), Shawnee county, state of Kansas; and that the said Edgar L. Moon is the owner of an undivided one-fourth (4) interest in and to the said above described property, and that the said Charles Stewart Moon is the owner of an undivided one-fourth (4) interest in said property; and that the said Charles Stewart Moon and Gertrude E. Moon, his wife, hereby agree to sell and convey by a good and sufficient warranty deed all their right, title and interest in and to the above described property to Nancy J. Moon and Edgar L. Moon for the sum of five thousand ($5,000.00) dollars, without interest, to be paid on or before two (2) years from this date, subject to any mortgages or liens that may be now upon said property, possession of said property to be delivered during the life of this contract to the said Nancy J.. Moon and Edgar L. Moon; and in consideration of the same the said Nancy J. Moon and Edgar L. Moon do hereby agree and promise to pay unto the said Charles Stewart Moon, or his heirs, the said five thousand ($5,000.00) dol lars, without interest, on or before two years from this date, for said interest. "It being further agreed and understood that time shall be the essence of this contract, and that the said Nancy J. Moon and Edgar L. Moon shall well and truly perform and pay unto the said Charles Stewart Moon, or his heirs, Isaid sum of five thousand ($5,000.00) dollars, as herein provided, then said Charles Stewart Moon, and his wife, Gertrude E. Moon, will convey by a good and sufficient warranty deed all their right, title and interest in and to an undivided one-fourth (14) of said property to Nancy J. Moon and Edgar L. Moon, otherwise this contract of sale shall be null and void." The answer was that the land was owned and occupied by Nancy J. Moon when the contract was made, that neither son had any property in the land, that the contract expressed a device by which a gift of $5,000 to Charles Stewart Moon was to be effected, but which failed for want of funds, and that the obligation apparently created was destitute of consideration. The answer further contained much family history elucidating the situation, motives, and intent of the parties to this family transaction. On motion those portions of the answer were stricken out. At the trial the court refused to admit and struck out material evidence sustaining the portions of the answer left standing, and at the conclusion of the evidence for the defendants, who had the burden of proof, directed a verdict for the plaintiff. The action of the trial court resulted from a misapplication of the parol evidence rule. The contract was regarded as containing two parts: First, a written acknowledgment of title and possession in Charles Stewart Moon which could not be disputed; and, second, a contract to purchase Charles Stewart Moon's land, the agreement to convey forming a valuable consideration for the agreement to pay the price. Regarding the contract as severable into distinct portions, as indicated, the portion wherein it was "stipulated, agreed, and understood" that the mother owned half the land and the sons one-fourth each, either created, modified, or extinguished property rights, or did not. If it did, it required a consideration to support it, and the defense of want of consideration was proper. If it did not accomplish a change in any subsisting right, it was merely an admission relating to facts independently existing and provable by independent evidence, and consequently was not conclusive. In this aspect the writing was simply a piece of evidence tending to show that Charles Stewart Moon was the owner of a one-fourth interest in the land and in possession of it. The proof offered by the defendants overcame this evidence, and established beyond controversy that he had no right, title, interest, or possession, whatever, and that his mother was the sole owner. The doctrine of estoppel is invoked by the plaintiff. The plaintiff is not an innocent purchaser, and asserts merely the right which her husband possessed. Why is a person estopped to deny a recital in a contract? [2] The old law was that a contract reduced to writing and sealed was the best evidence of the truth of its recitals. Estoppel was essentially a matter of evidence, and solemnity of form was the controlling consideration. This is no longer true. Estoppel is now a matter of substantive law, and a recital in a contract is not conclusive unless it operated as a representation or warranty inducing the formation of the contract, or was itself of the essence of the contract, or, having been accepted and acted on in good faith, resulted in consequences which it would be inequitable and unjust to disturb. A fair statement of the original doctrine, and of the modern view which regards the substance of the transaction and the situation of the parties to it, is found in Caspersz on Estoppel, §§ 336 and 339: "Estoppel by deed, or, as it may better be described, estoppel by matter in writing, rested originally upon the idea that written evidence was of a higher and more conclusive nature than verbal. The truth could better be established where the parties had agreed to bind themselves by an act of solemnity, such as the affixing of a seal to a formal document. The form of the contract was of the first importance; formal contracts could alone give rise to actions, and informal contracts were only enforced upon the grounds of necessity and convenience. Contracts under seal were therefore regarded as conclusive between the parties, the seal being a recognized and infallible method of proof. "The tendency in modern times is to treat estoppel by deed as resting upon contract. So in Carpenter v. Buller [8 M. & W. 209, 212 (1841)]. Baron Parke observed: 'If a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that, as between the parties to that instrument, it is not competent for the party bound to deny the recital: and a recital in an instrument not under seal may be such as to be conclusive to the same extent. * *By his contract in the instrument itself, a party is assuredly bound and must fulfill it. And in this view estoppel by deed is nothing more than estoppel by representation, and is founded upon representations as to exist ing facts. In order to ascertain whether an estoppel arises, it is therefore necessary to look to the general effect of the instrument, and to see what the precise representation is, and whether it has been acted upon. What has to be regarded is the substance of the transaction, and in particular the presence or absence of consideration." Pages 316, 318. In this instance it is plain the recitals respecting division of ownership were not made to the deceased son to induce him to sell what it was said he owned. The plaintiff did not plead that, relying on the recital respecting his ownership and possession, the deceased son so changed his situation that it would be unjust to return him to his former status, and the proof offered by the defendants precluded the possibility of an estoppel of this kind arising to confront them. Charles Stewart Moon had no land to sell or possession to give, could suffer no detri ment in respect to land he did not own or occupy, and suffered no deprivation by failing to receive a gift prompted merely by maternal affection and generosity. There remains the contract itself, considered as a contract, as an estoppel. If purely voluntary on the part of the persons sought to be held, it lacks engaging quality. Unless there were adjustment, or compromise, or settlement of doubtful or conflicting or unsettled claims respecting title and possession, mutual concessions or promises, or giving on one side and receiving on the other-unless there were consideration-there was no binding obligation. As a matter of fact, properly interpreted, the contract is a concatenated instrument, the various portions of which are dependent on each other, and consequently subject as an entirety to the defense of want of consideration. The defendants were not harmed by the action of the court in striking out parts of the answer. The portions stricken out consisted chiefly of recitals of evidential facts. The defendants were harmed, however, when the court refused to admit and consider proof of such facts. All, or substantially all, of them were relevant to the issue, gift, or contract resting on valid consideration. The judgment of the district court is reversed, and the cause is remanded for a new trial. All the Justices concurring. On Petition for Rehearing. In a petition for a rehearing counsel for the plaintiff criticises the citation by this court of Caspersz on Estoppel as follows: "The author of this work was a barrister and the author does not cite one single modern at law, advocate of the High Court, Calcutta, American authority to sustain the principle of law quoted in the opinion in this case. We do not believe this court prefers to follow the law of India, rather than the law announced by the several states, as well as by American textwriters." This criticism shows fine loyalty to the home team, but it does not meet the question whether or not this rank outsider gave a fair answer to the question propounded in the former opinion: in a contract?" "Why is a person estopped to deny a recital Citation of a text or a decision, or a thousand decisions, that a man is estopped to deny a recital in his contract, amounts to nothing; and probably that number of decisions may be found which go no further into the subject. A principle must be discovered and stated on which estoppel is justified, and, when that is done, decisions are sound or unsound according to whether or not they correctly apply the principle. In the petition for a rehearing it is said: "This court in the opinion intimates that the rule contended for by the appellee is an old rule, and that the modern rule is different. In 10 Ruling Case Law, 683, the author said: A grantee is estopped, however, in an action on a covenant of seisin in his deed, from setting up his own title, which he knew he possessed at the time the deed was made.' This is an American authority. The book was published in 1915, four years after the contract in controversy in this case was entered into." The text cited is based on the case of Eames v. Armstrong, 146 N. C. 1, 59 S. E. 165, 125 Am. St. Rep. 436. The decision itself contains no discussion of the doctrine of estoppel which is of any value, but appended to the report of the case in 125 Am. St. Rep. 436, 443, is an annotation which discusses the nature of the covenant of seisin, and the ground of the "estoppel" will be found in the character of the assurance afforded by that kind of a covenant, and not in the fact that the covenant was contained in a written instrument. The petition for a rehearing also cites 16 Cyc. 721, as follows: "A party to a written contract is ordinarily estopped to deny the truth of recitals therein." Note the word "ordinarily," which indicates that a party is not always estopped to deny recitals in his contract. The paragraph in which the quotation is found goes on to tell of instances in which the general rule does not hold, and cases are cited in which the general rule was not applied. How does it come about that some writings estop, and others do not? The plaintiff's brief and the petition for a rehearing entirely ignore that subject. In discussing the parol evidence rule, Professor Wigmore makes the following observations relating to the efficacy of a writing per se, which apply quite as well to estoppel by writing: from, American law writers like Thayer, Bigelow, and Herman, and if the light has penetrated as far as India, there seems to be no reason why American courts and lawyers may not read by it. The court regards the principles stated in the former opinion as sound, and believes they were correctly applied, and consequently the petition for a rehearing is denied. All the Justices concurring. (103 Kan. 76) STATE ex rel. BREWSTER, Atty. Gen., v. 1. (Supreme Court of Kansas. May 11, 1918. Rehearing Denied June 14, 1918.) (Syllabus by the Court.) THEATERS AND SHOWS 1-APPROVAL of MOTION PICTURE FILM-RE-EXAMINATION. The Kansas board of review, when approv ing a motion picture film, does so subject to subsequent recall for re-examination. 2. MANDAMUS 140 RETURN OF FILM TO STATE BOARD OF REVIEW. mandamus. Upon such recall a duty of the producer arises to return the film for re-examination; the performance of which duty may be required by 3. THEATERS AND SHOWS 1-DISAPPROVAL OF MOVING PICTURE FILM-BAD FAITH— EVIDENCE. The evidence examined, and found not to raise the presumption that in the work of such re-examination the members of the board will act in bad faith. West and Dawson, JJ., dissenting. Original mandamus by the State of Kansas, on the relation of S. M. Brewster, Attorney General, against L. M. Crawford and others. Writ allowed. S. M. Brewster, Atty. Gen., and S. N. Hawkes and John L. Hunt, both of Topeka, for plaintiff. Ed. D. McKeever and J. J. Schenck, both of Topeka, for defendants. WEST, J. Chapter 308 of the Laws of 1917, section 6, provides that the Kansas state board of review shall examine films"and shall approve such films, reels, folders, posters and advertising matter which are moral and proper; and shall disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals." "The exhibition of a writing is often made as though it possessed some intrinsic and indefinite power of dominating the situation and quelling further dispute. But it needs rather to be remembered that a writing is, of itself alone considered, nothing-simply nothing. It must take life and efficacy from other facts, to which it owes its birth; and these facts, as its creator, have as great a right to be known and con sidered as their creature has. * * There is no magic in the writing itself. It hangs in mid-air, incapable of self-support, until some foundation of other facts has been built for it." 4 Wigmore on Evidence, § 2400, p. 3370. The section of the same work drawing the distinction between admissions as evidence, and estoppel, warranties, and contracts (2 Wigmore on Evidence, § 1056), shows clearly that the learned author had a conception of On May 5, 1917, the film known as "The estoppel precisely like that stated by Cas- Birth of a Nation" was presented to the persz; and Bigelow, one of our own truly board, and in the afternoon after some disAmerican writers, actually derived and stat-cussion it was announced that after certain ed, in all essential respects, the true founda- eliminations had been made the picture would tion for estoppel by writing, just as Casperz be passed, and a card or certificate approvdid, even to the extent of citing the case of ing it and indorsing the eliminations requirCarpenter v. Buller, 8 M. & W. 209. Bigelow ed was prepared. These eliminations were on Estoppel (5th Ed.) p. 331, and note. The agreed to. The film was left with the board text of Caspersz is based on the English de- until the evening of Monday, May 7th, when cisions, and estoppel by writing in England it was shipped to a representative of the picis not very different from estoppel by writ-ture company, the certificate having been ing in America. The author, however, was signed and delivered. On May 9, 1917, the perfectly familiar with, and cited and quoted | following order was mailed the producer: |