Peter Breen and Nolan & Donovan, all of Butte, for appellants. J. A. Poore, J. V. Dwyof Butte, for respondent er, J. A. Groeneveld, and N. A. Rotering, all

[4] 4. The initiative and referendum apply | From a judgment for defendant, plaintiffs aponly to matters of general legislation, in peal. Affirmed. which all the qualified electors of the city are interested, and not to matters of purely local concern such as the creation of a special improvement district, in which only the inhabitants or property owners are interested. Carlson v. City of Helena, 39 Mont. 82, 102 Pac. 39, 17 Ann. Cas. 1233.

HOLLOWAY, J. The facts of this case are facts in Allen v. City of Butte, 175 Pac. 595, in all substantial particulars identical with the just decided. Upon the authority of that case, the judgment herein is affirmed. Affirmed.

BRANTLY, C. J., an dSANNER, J., concur.

(103 Kan. 524)

et al. (No. 21716.) (Supreme Court of Kansas. Oct. 12, 1918.) (Syllabus by the Court.)

[5] 5. It is argued in the brief of counsel for appellants that the city council did not by a vote of a majority of its members decide that the construction of the sewer was necessary for sanitary purposes, and the doctrine of Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454, is invoked in behalf WYATT v. STATE LINE OIL & GAS CO. of the contention that the city did not acquire jurisdiction to proceed with the creation of the district. In the Stadler Case it was alleged in the complaint that "the city council did not, by a vote of the majority of its members, decide that the construction of said sewer was necessary for sanitary purposes," and this allegation was admitted to be true. In the present case no such allegation is made. The statute (section 3373) is silent as to the manner in which such decision should be made manifest, and upon the pleadings as they appear in this record the question argued does not arise.

EVIDENCE ~43(3)—QUIETING TITLE 34
(5) SUFFICIENCY OF PETITION - PLEADING
AND TESTIMONY IN FORMER TRIAL-JUDI-
CIAL NOTICE.

In a suit to quiet title, the court gave judg payment of the costs, to file an amended petition ment against plaintiff, but permitted him, upon to foreclose a contract in the nature of a mortgage upon the real estate. Held, that the amended petition fails to state facts showing a the petition cannot be aided by the pleadings, cause of action against the defendants, and that testimony, or rulings in the first trial.

Appeal from District Court, Montgomery County.

the State Line Oil & Gas Company and others. Suit to quiet title by C. E. Wyatt against Demurrer to petition sustained, and plaintiff appeals. Affirmed.

Hal R. Clark and P. L. Courtright, both of Independence, for appellant. Banks & O'Brien, of Independence, for appellees.

[6] 6. The statutes involved in this action were considered at length in McMillan v. City of Butte, 30 Mont. 220, 76 Pac. 203, and it was there held that it is a question for the Legislature to determine in the first instance what property will be specially benefited by an improvement; and in Beck v. Holland, 29 Mont. 234, 74 Pac. 410, it was determined that the legislative authority can be, and in these statute was, delegated to the city council. The council, then, having observed the method of procedure ordained PORTER, J. The plaintiff appeals from an by the statute, acquired jurisdiction to order order sustaining a demurrer to his petition. the improvement and to levy the assessment The petition alleged that one G. S. Wyatt against plaintiffs' property, and the assess- (who is the father of the plaintiff) was origment thus levied became a lien upon the prop-inally the owner and in possession of 36 acres erty from the date when such assessment of land in Montgomery county and had made became due (section 3407), and was not af- a contract for a deed by which he agreed to fected by the fact that thereafter each of convey the land to J. W. Vaughn at the end of these plaintiff's recovered a judgment against five years upon certain payments being made. the city for damages on account of the street It alleged that after this contract had been grading done pursuant to Ordinance 849A. executed Vaughn released and relinquished The judgment is affirmed. his interest in the land, and that thereafter Affirmed. G. S. Wyatt conveyed the premises by warranty deed to the plaintiff, and that Vaughn

BRANTLY, C. J., and SANNER, J., con- and all parties claiming any rights through

cur.

(55 Mont. 209)

BOYLE et al. v. CITY OF BUTTE.

(No. 3929.)

him failed and refused to comply with the terms of the contract and that by reason of such failure plaintiff is entitled to foreclose the contract. The petition alleged that there was then due and owing upon the contract $4,300, for which judgment was asked against the defendants, and that the contract be foreclosed and the judgment declared to be a first Action by Mary E. Boyle and others against lien upon any rights the defendants had in the City of Butte, a municipal corporation. the land. There was nothing in the petition

Oct. 7, 1918.)

(Supreme Court of Montana.
Appeal from District Court, Silver Bow
County; J. J. Lynch, Judge.

to show what, if any, interest the defendants | to foreclose his contract as a mortgage, gave had or claimed in the land, and no facts were stated to show that any of them had become interested in the contract for the deed or had assumed the liability of Vaughn. Obviously, this was the ground upon which the court sustained the demurrer.

We are unable to see in what way the evidence on the former suit has any bearing upon the ruling sustaining the demurrer. While this is a suit between the same parties, it is not the same one that was before the court at the first trial. The issues in that suit were decided against plaintiff, and judgment was rendered against him. In order to avoid the necessity of a new summons and the formal commencement of a new suit, the court, having held that plaintiff had the right | County.

Sult by R. S. Magee against E. B. Snyder, plaintiff was the owner of and entitled and another. Judgment for plaintiff, and to recover an interest in the notes to the defendants appeal. Affirmed.

W. A. S. Bird, of Topeka, for appellants. H. W. Page, of Topeka, for appellee.

*

*

*

the

amount of his claim of $250, with interest, and it was ordered that the notes be held within the jurisdiction of the court, and when paid the plaintiff was to receive therefrom the amount due him, the remainder to go back to the daughter, or such person as she might direct.

WEST, J. Snyder sold on time a restaurant to the Roushes for $500, Magee signing the note as surety. Snyder sued on the note, [1] The first complaint of the defendants and Magee paid him $250 on condition that he be released from any further liability, is that the plaintiff's attorney was permitted to testify touching the verbal agreement, and that any judgment which might be recovered should be assigned to him to the had between Snyder and Magee at the time amount of $250, with interest, the assigned of the payment of the $250 and the assignportion of the judgment "to be due and ment of the interest in the judgment, to payable when the full amount of the effect that Snyder was to look after the said note and interest sued upon herein is collection of the judgment, and after he had paid with the costs of the above-entitled collected it to pay Magee, and that the assignaction." Snyder recovered judgment for ment was not to be recorded. On motion $591.75. A good many years afterwards, to strike out, the court remarked that this without the knowledge of Magee, he entered evidence could not be received to vary the satisfaction of this judgment upon written contract in any respect, but permitWith this restriction it records in the clerk's office, having settled ted it to stand. with the Roushes by taking a note for $400 does not appear that the reception of this to his daughter, Ada Snyder, and a note evidence could prejudice the court in a trial for $50 to himself. Magee sued Snyder and in which the parties waived a jury. Medaughter to recover his $250, with interest. Cready v. Crane, 74 Kan. 710, 88 Pac. 748; At the close of the evidence it was stated by Gordon v. Gordon, 92 Kan. 730, 142 Pac. the court that, the plaintiff having no ques-242; Cadwalader v. Pyle, 95 Kan. 341, 148 tion of fact he wished to submit to the Pac. 655. jury, and the only question the defendant Counsel argues that Magee, having aldesired to submit being the good faith of leged that the Roushes misrepresented their the transaction between Snyder and his ability to pay and thereby fraudulently daughter, if the evidence were submitted procured the satisfaction of the judgment, to the court, it would find that there was should have proceeded against the Roushes no bad faith in this transaction, whereupon to set aside the release. But whatever he the parties waived a jury, and on the one might have done in this respect could not issue of fact the court found that the note deprive him of his right to proceed against for $400 was transferred by Snyder to his Snyder on his liability under the contract daughter for a pre-existing debt, and that and arrangement by which the interest and she became owner, subject to any claim the judgment were assigned to Magee. that the plaintiff might have, provided he [2] It is next contended that it was as was entitled to any claim or lien, which much the plaintiff's interest to see to the question was left open for further consider-collection of the judgment as Snyder's, and ation and determination. The court found that because he learned of the ability of that there was no fraud on the part of the Snyders in the matter of the transfer of the note to the daughter.

Later judgment was rendered for the plaintiff, and upon passing on the motion for a new trial findings of fact were made. These were in substance that for a valuable consideration Snyuer transferred to Magee an interest in the judgment that might be rendered, setting out the written assignment and contract; that the judgment rendered in 1908 was revived in June, 1915; that in April, 1916, Snyder without the knowledge of the plaintiff entered satisfaction receiving from the Roushes the two notes, the one for $400 being made payable to the daughter to whom Snyder was indebted in the sum of about $400; and that by agreement between them the note was executed to her in payment thereof, the daughter taking it in good faith and without knowledge of the agreement between Snyder and Magee. As a

some of the Roushes to pay he should look to them, and not to Snyder. But when Snyder entered satisfaction of the judgment he thereby entered of record a solemn declaration that the judgment had been collected, which was in effect an admission that he was under obligation to pay Magee his portion thereof, and, having done this, he cannot be heard now to complain that Magee seeks to hold him on his contract.

[3] It is further contended that the taking of the notes was not a collection or payment of the judgment, as required by the terms of the written assignment; but the judgment and order provided that, when the notes were paid, the proceeds were to be applied, first, to the liquidation of the Magee interests, and of this Snyder cannot complain. It is insisted that, if Snyder owed his daughter and Magee, he had a right to prefer either one as a creditor. This is doubtless true, so long as he used his own money or

ING CAR-"EXEMPLARY DAMAGES."

FURNISH

is no rule which permits a debtor to take (3. CARRIERS 20(5)-DELAY IN
the money or proceeds of the property of
another to prefer a third person to whom
he is indebted, and, when Snyder assumed
to satisfy the judgment, such satisfaction
included the portion owned by his assignee,
to whom by his former agreement the pro-
ceeds were to be paid.

The "exemplary damages" named in section 8423 of the General Statutes of 1915 are not such damages as have been termed exemplary in actions in which it has been held that such damages cannot be recovered unless actual dam

[4] It is argued that the assignment was without consideration and void, because by paying the $250 Magee was simply fulfilling Acan obligation already resting on him. cording to the answer of Magee in the original suit, he signed the note on condition that Snyder take a chattel mortgage upon the restaurant property as a protection to Magee for signing the note as surety, and Snyder had sold and disposed of the mortgaged property, which was worth $700. It is suggested by counsel that Snyder, rather than be compelled to show how much he sold the restaurant for, chose to settle with Magee for $250 and the transfer of the interest in the judgment. Magee testified that after he had filed his answer in that action he understood a settlement was made so far as he was concerned, that he paid Snyder under the contract $250, and did not prosecute his case any further, so far as his rights were concerned. He also testified that there was plenty in the restaurant to pay all of the note, and that he paid $250 to Mr. Snyder, and abandoned his defense to Snyder's action on the strength of the agreement. Hence the finding that the assignment was for a valuable consideration is not without support in the evidence.

[5] The mere failure to pay taxes on his interest in the judgment did not preclude a recovery by Magee. Johnson v. Harvey, 83 Kan. 471, 112 Pac. 108.

ages are proved.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Exemplary Damages.]

4. CARRIERS 20(12) ORDER FOR CAR DEPOSIT QUESTION FOR JURY.

Where a person makes a written application to a carrier for a car, under section 8421 of the General Statutes of 1915, and the carrier does not require any deposit to be made as prescribed by section 8424, and the applicant does not tender any deposit, it is for the jury to determine whether the applicant elected to order the car without making such deposit. 5. COMMERCE 33 - MILLING IN TRANSIT PRIVILEGE "INTERSTATE COMMERCE."

A milling in transit privilege on a car of grain shipped from one point to another point within this state, where all connection of the shipper with the grain ceases at such point, does not render the shipment "interstate commerce," although the consignee at the point of destination may, under the milling in transit privilege, ship the grain, or its product, to a point outside the state.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

Appeal from District Court, Wyandotte County.

Action by the Farmers' Grain & Mercantile Company against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and a new trial ordered.

R. W. Blair and T. M. Lillard, both of Topeka, and A. L. Berger, of Kansas City, Kan., for appellant. Hal R. Lebrecht, J. K. Cubbison, and A. J. Bolinger, all of Kansas City, The judgment is affirmed. All the Jus- Mo., and C. W. Smith, of Topeka, for appeltices concurring.

(103 Kan. 527)

FARMERS' GRAIN & MERCANTILE CO.
v. UNION PAC. R. CO. (No. 21719.)*
(Supreme Court of Kansas. Oct. 12, 1918.)

(Syllabus by the Court.)

1. EVIDENCE 407(2)-PAROL-RECITAL IN BILL OF LADING.

A recital in a bill of lading that a shipment covered thereby is made under a particular order for a car is evidence of the facts stated in the recital, but it is not conclusive evidence thereof, and may be rebutted.

2. TRIAL 252(12) · DENCE.

INSTRUCTION

EVI

In an action to recover the exemplary damages named in section 8423 of the General Statutes of 1915, it is error for the court to refuse to give an instruction that the plaintiff cannot recover if the shipments were to be a part of interstate commerce, where the evidence is not clear as to whether or not the shipments were to be made to points within or without the

state.

lee.

MARSHALL, J. The plaintiff brought this action, consisting of 26 causes of action, under section 8423 of the General Statutes of 1915, to recover the $5 a day damages given by that statute for delay in furnishing cars ordered by the plaintiff from the defendant. Judgment was rendered in favor of the plaintiff for $2,035, and the defendant appeals.

The defendant argues that the court erred in excluding evidence to show that the cars were ordered for shipments in interstate commerce, that the court refused to instruct the jury concerning interstate shipments, that the plaintiff was not entitled to exemplary damages, and that the plaintiff elected to order cars without making a deposit. These matters will be discussed in the order stated.

The plaintiff was engaged in operating a grain elevator at Gorham, Kan., and was buying grain for shipment to points within and without the state. It gave to the de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fendant written orders for cars in which to ship grain. These orders were, in form, as follows:

"Application for Cars 239.

"Gorham, Kansas, 12-10-1915. "To the Union Pacific Railway Company, and Its Agents in Charge of Transportation at Gorham, Kansas:

"We hereby apply for one capacity-amount loaded-empty grain cars which we desire to load with grain for transportation to Kansas City or line, said cars to be delivered on the 10th day of December, 1915, at our elevator.

"The Farmers' Grain & M. Co. Shipper. "By R. C. Lawrence, Mgr. "The Union Pacific Railway Company hereby acknowledges the above application for cars. "By W. T. Vaughn, Its Agent."

and believed in good faith that such applications were applications for cars to be loaded with grain for transportation to Kansas City, Mo., then the railroad company had a right to treat such application as an application for a car to be used in interstate commerce, and there can be no liability in this action under the Kansas law for failing to furnish a car in compliance with such application."

The law of this state does not control if the cars were ordered for shipments in interstate commerce. Chi., R. I., etc., Ry. v. Hardwick Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203. In 16 of the plaintiff's causes of action, the orders were for shipments to be made to "Kansas City or line." What was meant by these orders? There are two Kansas Cities; one in this state, and one in Missouri. Which one of these cities was meant by these orders? If they were for cars for shipments to Kansas City, Mo., the plaintiff cannot recover on the causes of action based thereon. The plaintiff's testimony showed that it sometimes shipped grain to Kansas City, Mo. The orders, with their ambiguity, and the plaintiff's testimony, were sufficient to require that the question of interstate commerce be submitted to the jury. The error committed in refusing to instruct the jury concerning the interstate commerce features of the action was prejudicial.

[3] 3. The defendant argues that the plaintiff is not entitled to exemplary damages, for the reason that no actual damages were alleged or proved. The proposition presented is one of statutory construction. ute involved is section 8423 of the General Statutes of 1915, which, in part, reads:

The stat

Different orders bore different dates, and the orders were numbered consecutively. When a shipment was made, the bill of lading was made out by the plaintiff, and a notation was made thereon showing that the shipment was made under a certain numbered car order. The bill of lading was then signed by the defendant's agent. There was delay in furnishing cars under the orders. [1] 1. The defendant, by cross-examination of the plaintiff's witnesses, and on the introduction of its evidence in defense, sought to show that the orders were given for cars to be used in shipments in interstate commerce; but the evidence was excluded. The defendant had pleaded that the orders had been given for cars to be used in interstate transportation. The plaintiff contends that the notation made on the bill of lading was a part of the contract, and that it could not be contradicted, varied, nor altered by parol evidence. The plaintiff's contention is not good. The notation was a recital of a past act, and it might be true or not. It was evidence of that fact, but it was not conclusive evidence. It was no part of the contract of shipment. It was proper to introduce evidence to show that the orders were made for cars to be used in interstate transportation. Rose et al. v. Madden, 1 Kan. 445; 4 R. C. The statute names the damages as exL. 12; 10 R. C. L. 1018; 17 Cyc. 708; 1 emplary damages in actions where it has Greenleaf on Evidence (16th Ed.) § 285. The been held that such damages cannot be reevidence should have been admitted on cross-covered unless actual damages are establishexamination, where such cross-examination ed. The damages given are statutory, and was proper, and should have been admitted are fixed as a matter of public policy. The when offered by the defendant to establish Legislature had power to fix these damages its defense. But the error is not available to the defendant, for the reason that there is nothing to show that the excluded evidence was produced on the hearing of a motion for a new trial. Civ. Code, § 307; Muenzenmayer v. Hay, 98 Kan. 538, 159 Pac. 1; McAdow v. Railway Co., 100 Kan. 309, 164 Pac. 177, L. R. A. 1917E, 539.

[2] 2. The defendant requested the court to instruct the jury as follows:

"A number of the applications for cars introduced in evidence by plaintiff are applications for cars to load with grain for transportation to 'Kansas City or line point.' I instruct you that, if you find and believe from the evidence that the defendant company understood

"When the cars are applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall pay to the party or parties so applying for them the sum of five dollars per day for each car failed to be furnished as exemplary damages, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain for each car failed to be furnished."

for a failure on the part of a carrier to comply with the statute. Perkins v. Matteson, 40 Kan. 165, 19 Pac. 633; Joyce v. Means, 41 Kan. 234, 20 Pac. 853; Star Grain & Lumber Co. v. Railway Co., 85 Kan. 281, 116 Pac. 906; Vosburg v. Railway Co., 89 Kan. 114, 130 Pac. 667.

[4] 4. The defendant argues that the plaintiff elected to order cars without making a deposit as required by section 8424 of the General Statutes of 1915. That statute, in part, reads:

"Such applicants shall, at the time of applying for such car or cars, if specifically required so to do, deposit with the agent of the company one-fourth of the freight charges for use of such