299; State v. McClard, 81 Or. 510, 160 Pac. their consideration in connection with all 130. the circumstances of the case. The instruction was likely, in any event, to be misleading, and was properly refused. BEAN, HARRIS, and JOHNS, JJ., concur. (90 Or. 105) HODGSON et al. v. MARTIN. (Supreme Court of Oregon. Oct. 25, 1918.) 1. WILLS 63-CONTRACT TO DEVISE LAND -CONSTRUCTION. [9] Error is predicated upon the refusal of the court to permit defendant to testify as to the contents of a letter which he claimed to This case was ably tried on behalf of dehave received from the state veterinarian, au- fendant, and every circumstance that could thorizing him to put a quarter circle beneath | possibly tend to his exculpation was presenthis club brand, which letter he claimed to ed to the court and jury by able counsel. A have lost. The law points out the way in perusal of the record convinces us that his which changes in brands may be made and in trial was fair in every respect, and that judgwhich the record of brands may be perpetuat- ment was such as should have been rendered, ed. The transactions of the state veterina- and it is therefore affirmed. rian's office are public records, and the proper way of proving permission to change a brand or to adopt a new brand should be proved by certified copies of such records, which were not shown to be unavailable, and the evidence offered was incompetent. Conceding that defendant had the right to use the club brand with the quarter circle beneath it, and there is testimony indicating that he did have that right, it is difficult to see how that fact could have any bearing upon this case. The contention of the state is that defendant committed larceny by "working over" Held's brand so as to make it resemble his own, thereby destroying proof of the identity of the animal. It was not unlawful for him to brand his horses with a "Rocker P" or any other brand or device he chose, either with or without permission of the state veterinarian, provided such device did not interfere with or simulate the brand of any person having a prior right thereto. The law merely prohibits evidence of such brand being given for the purpose of identification or to prove ownership. tiff and family to move upon land and board and CONTRACT TO DEVISE LAND-EQUITABLE RELIEF -VALUE OF IMPROVEMENTS. Where owner of land agreed to devise land family would move upon the land and board and to plaintiff in consideration that plaintiff and lodge him, and plaintiff moved upon land and made improvements thereon, but failed to give owner the comfortable home, good food, and respectful treatment contemplated by the contract, the court, in action for specific performance of the contract, although denying specific performance, will compensate plaintiff for the value of the improvements made, making such sum a lien upon the land. Department 2. Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge. Action by Thomas Hodgson and another against J. M. Martin, executor of the last will and testament of James M. Curtin, deceased, substituted for James M. Curtin. From the decree, plaintiffs appeal. Modified and affirmed as modified. [10] Error is predicated upon the refusal of the court to give the following instruction: "You are instructed that in this case the defense has offered in evidence a certified copy of the brand of E. B. Wade. This was not offered nor received for the purpose of showing ownership of the animal at this time nor at the time of the alleged taking, but was offered for the purpose of showing that E. B. Wade had the right under the old brand law to use this particular brand at the time it is claimed that E. B. Wade branded the animal in question. You are further instructed that in the month of June, 1914, the said E. B. Wade had the right to use the so-called trowel brand on either or both stifles, and that, if he branded the animal in question at that time with this brand, then the brand on the animal was evidence that E. B. Wade owned the animal upon which it was found. This was the law until May 9, 1915, when the new brand law went into effect. The MCBRIDE, C. J. This was a suit to encertificate of the brand of E. B. Wade is not join an action of forcible entry and detainbefore you for the purpose of showing ownership in the animal nor the right to use this brander, and to enforce a specific contract to conat this time, but for the purpose above men- vey a tract of land. Pending the hearing in this court, defendant died, and J. M. Martin, his executor, was substituted as defendant. The controversy arises out of the following facts: tioned." Albert Abraham, of Roseburg (L. B. Sandblast, of Roseburg, on the brief), for appellants. Geo. Neuner, Jr., of Roseburg (Neuner & Wimberly, of Roseburg, on the brief), for respondent. The instruction is faulty because it required the court to declare the legal effect of the evidence, and because it singled out a particular item of the testimony, and required the court to instruct specially upon that, thereby giving it undue prominence, which is always reprehensible. The testimony had ed. been admitted and was before the jury for out [1, 2] Defendant Curtin was the owner of a ten-acre tract of land in Douglas county, upon which was a small cabin and outhouse, and which was for the larger part unclearHe was a prospector, a bachelor withfamily, and, being desirous of having some one to take care of him and of his home, inserted an advertisement in the local papers requesting correspondence with that end in view. The advertisement was finally answered by the plaintiff Thomas Hodgson, and it was substantially agreed by the defendant that if the Hodgsons, Thomas and wife and children, would move on the place and board and lodge Curtin, he would convey to Hodgson the land in question. The particulars as to how and when the conveyance was to be made or to take effect were not originally settled; but a short time after the Hodgsons came upon the place, pursuant to the invitation held out by defendant, it was settled that Curtin should make a will devising to Hodgson the land in question, so that as to the method of conveyance it may be said that the final agreement of the parties was that it should be by will, thus leaving the legal title in the defendant during his lifetime. The evidence shows that Hodgson, his wife and family, and his brother William, to whom Thomas Hodgson assigned a half interest in the land, came upon the premises and did considerable improve ment work, thus increasing the value thereof to an extent variously estimated by witnesses from $200 to $1,000, but found by the court to be $200. The sleeping accommoda tions became overcrowded, and defendant occupied a bed in an outbuilding with Willlam Hodgson, to whose habits in respect to cleanliness and decency defendant had strong objections. The family consisted of Hodgson, his wife, brother, and four children, and later a fifth child was born, and still later James Bennett, a brother of Mrs. Hodg son, came and lived with the family part of the time. The house consisted of a living room, kitchen, and one bedroom, and a cabin adjoining which was large enough for a bedroom and used as such by defendant and William Hodgson. We are satisfied from the testimony the conditions about the house were very unsanitary and were unbearable to a person of defendant's cleanly habits, that the cooking and board furnished were not suitable to his condition of health, and that neither Thomas Hodgson nor his wife exerted themselves to make the place a comfortable home for defendant in his old age. This may have been owing to the fact that Thomas Hodgson was partially blind and his wife bur dened with the care of a family of young children, or to habits of living that rendered them incapable of appreciating the necessity of cleanly and sanitary surroundings; but, from whatever cause the conditions may have arisen, we are satisfied defendant was compelled, by the conditions above alluded to, to leave the premises and build himself a sleeping cabin away from the intolerable conditions existing in the place which had been his home. The condition that he was to have a home and board during his lifetime with the plaintiff and his family necessarily implied that the home should be fairly decent and comfortable, and the food purchased should be suitable to his age, health, and condition, and that he should be respect. fully and kindly treated. As to the first two, we do not think they came up to the standard above indicated; and as to the third we think Thomas Hodgson was disposed to quarrel and resent the reasonable remonstrances of defendant as to cleanliness in the household. Giving to the agreement all the definiteness which plaintiff claims for it, and not passing upon the question as to whether it was ever reduced to such certainty that a decree for specific performance could be predicated upon it, we are convinced it was not carried out by plaintiff Thomas Hodgson in the spirit in which it was understood by the parties when it was the opinion that plaintiff's labor upon the entered into. On the other hand, we are of lands and the services rendered by him and his wife and others at his request have con siderably enhanced the value of the propit would be inequitable to allow defendant, erty, and in view of all the circumstances or rather his executor, to have the benefit The court below took this view of the case of this improvement without compensation. and fixed the amount of such compensation at $200, making that sum a lien upon the land. We consider this estimate rather below the amount indicated by the testimony, and we increase the amount to $300. Neither party will recover costs in this court, and the decree as above modified will be affirmed. BEAN, JOHNS, and OLSON, JJ., concur. (103 Kan. 494) WEST v. BRUGGER et al. (No. 21695.) (Supreme Court of Kansas. Oct. 12, 1918. Rehearing Denied Nov. 14, 1918.) (Syllabus by the Court.) 68(2) TERMS 1. MINES AND MINERALS 4. MINES AND MINERALS 68(2) CONTRACT TO GRANT MINING LEASE-RIGHTS OF PARTIES. The rights of the other party to such a contract are not affected by the fact that, after the declaration of forfeiture, the person who had been conducting mining operations under an arrangement with him continued to operate under a new agreement with the owner. 5. APPEAL AND ERROR -CONCLUSIVENESS. 1010(1)-FINDING The finding of the trial court against the contention that proceedings for forfeiting rights under such a contract were collusive, and therefore invalid, held to have been supported by substantial evidence, and consequently to be binding upon this court. Appeal from District Court, Cherokee County. Action by C. A. West against Wm. Brugger and N. W. Moxley. Judgment for defendants, and plaintiff appeals. Affirmed. Paul McCaskill and Chas. Stephens, both of Columbus, and J. W. Swarts and D. L. Towne, both of Miami, Okl., for appellant. R. E. Rosenstein, of Baxter Springs, for appellees. MASON, J. C. A. West brought an action against Wm. Brugger for the specific performance of a contract for a mining lease. Brugger defended on the ground that the plaintiff's privileges under the contract had been forfeited in consequence of a cessation of work thereunder for a period of 10 days. A trial resulted in a judgment denying the plaintiff relief, and he appeals. N. W. Moxley was joined as a defendant, but, as the vital controversy was between West and Brugger, the latter will be spoken of as the defendant. On August 10, 1916, the defendant, being the owner of a quarter section of land, executed to the plaintiff a contract by which the latter was given the right (and on his part agreed) to prospect and mine for ore thereon; all mineral produced during the prospecting period to be marketed, and the defendant to receive a royalty of 71⁄2 per cent. Two of the provisions of the contract read: tiff), heirs or assigns, further agree to begin "Said party of the second part [the plainoperations within 40 days from the date hereof, and agree to work in good faith, and not cease work for more than 10 days at any time without permission of party of the first part, delays caused by unavoidable accident or causes beyond the control of said second party alone excepted." "It is further agreed and fully understood that, in case the said party of the second part, his heirs or assigns do not prospect, mine, or develop said tract or parcel of land, or cause the same to be done, as hereinbefore set forth and stated, on or before the 20th day of September, 1916, or shall fail in any particular to carry out any of the provisions of this contract, the same shall thereupon become void and of no effect whatever, and in the event the said party of the first part may declare this contract forfeited by serving written notice upon the party of the second part, either in person or through the mail at the last known address of the party of the second part, stating that said contract has been forfeited, and thereupon said party of the first part may take immediate possession of said tract or parcel of land without giving notice to quit, demand of possession, or any legal proceedings whatever, and the party of the second part hereby agrees to leave said premises." On A further agreement was included, to the effect that if, on or before September 20th, the plaintiff or his assigns should discover and develop ore in paying quantities, and should proceed to carry out the objects of the contract by erecting the appropriate works to put the mineral in marketable condition, the defendant would grant him (or his successors) The time within which operations were to a 10-year mining lease of an agreed form. be begun was extended by agreement. October 14, 1916, the plaintiff subleased the south 80 acres to N. W. Moxley, executing to him two contracts quite similar to that already described; one covering the southwest quarter of the 160-acre tract, in which a royalty of 10 per cent. was reserved, and the other covering the southeast quarter, in which the royalty named was 71⁄2 per cent.the same as that of the defendant under the original agreement. Moxley at once began work upon the southwest quarter, the time of such commencement being satisfactory to the defendant. Shortly afterwards Moxley "sublet or subcontracted" the premises to a party of four, which included W. T. Hale and A. Y. Young. This party employed Moxley to continue the work for them, and for a time he did so. On February 17, 1917, the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and no one except himself is here complaining. A separate action was brought by Kusterer and his associates against the defend By agreement the two cases were heard at the same time upon the same evidence, but they were not consolidated. In each a judgment was rendered in favor of the defendant, but no appeal has been taken, excepting that brought by West. plaintiff assigned his rights under his con-, this proceeding upon the omission of the detract with the defendant to George J. Kuster- fendant to give notice to any third person, er and three others, who agreed to pay royalties of 122 per cent. on the north half of the tract, 10 per cent. on the southwest quarer, and 71⁄2 per cent. on the southeast quar-ant, involving much the same controversy. ter. A stipulation was inserted in the assignment that any work being done on the quarter section by the persons then holding contracts should be considered a compliance with the original contract with the defendant. On February 26, 1917, this work ceased, and was not resumed prior to March 10, 1917, on which date the defendant served upon the plaintiff in person a written notice declaring the contract at an end and all rights thereunder forfeited by reason of that fact. The controversy turns upon the validity of this attempted forfeiture. [4] 4. After the defendant had served the notice of forfeiture, he made a new contract with Moxley, under which the latter was to continue operations in his own behalf. The plaintiff suggests that the rules applicable to landlord and tenant apply, and that Moxley, having entered the land under contract with the plaintiff, could not dispute his title, and could not attorn to the defendant, or receive ing first restored it to the plaintiff. We do not regard the point as well taken. The relation of the parties was not strictly that of landlord and tenant, although the analogy may be close. But in any event, while a tenant may not dispute that his landlord had a good title when he put him in possession, he is not estopped to assert that that title has been lost, and in that event he may recognize the new title. Sheaff v. Husted, 60 Kan. 770, 57 Pac. 976; 16 R. C. L. 655. Moreover, the real controversy here is between the plaintiff and Brugger, the principal defendant. The relation of Moxley to the matter is quite incidental, and, if Brugger's effort to extin [1] 1. The plaintiff contends that the contract does not give the defendant the right of forfeiture for any breach excepting a fail-possession from the defendant, without havure to begin work at the time specified (which was waived), or a default in regard to cleaning and marketing the mineral, or paying the royalty. We do not accept this view. It is true the contract provided in so many words for a forfeiture in case the defendant (or his successors) should not prospect, mine, or develop the tract by September 20th (the reference being shown by the context to be to the commencement of operations), and did not specifically authorize a forfeiture on account of a cessation of work for 10 days; but we regard the clause relating to the avoidance of the contract for a failure in any particular to carry out any of its provisions as covering such a suspension of op-guish the plaintiff's right to the land was eferations. The continuous prosecution of the work was obviously of as much importance as the time of commencement, and without it the requirement in the latter respect would afford little protection. [2] 2. The plaintiff also insists that the waiving of the time of beginning work carried with it a waiver of the 10-day rule. We cannot assent to this. The two requirements were closely related, but in a sense independent of each other. The fact that the defendant was willing to defer the beginning of operations from time to time does not in the least imply that he was willing that they might be suspended for an indefinite period at the convenience or pleasure of the other party. [3] 3. The plaintiff challenges the validity of the forfeiture on the ground that no notice thereof was served on any one but himself. Inasmuch as the contract, while running to the plaintiff, his heirs and assigns, provided for a service of notice of forfeiture only upon him, it may be questioned whether the defendant was required to serve notice on any one else. But at all events he owed no duty to the plaintiff to serve the plaintiff's assignees or subtenants or subcontractors. Therefore the plaintiff can found no right in fectual, there is nothing substantial to be litigated between the plaintiff and Moxley. [5] 5. The vital dispute in the case turns upon a question of fact. The plaintiff asserts that the proceedings for a forfeiture were entirely without legal effect, because they were collusive, and were planned and carried out in bad faith. His version of the affair is in substance this: After Hale and his associates had arranged with Moxley to do the work in their behalf, one of them, White, failed to meet his share of the expenses. Therefore, in order to get rid of White, Hale and his other associates arranged with Moxley, the defendant being a party to the plan and consenting to it, that all work should be stopped for 10 days, and that upon that ground a notice of forfeiture should be served, with the purpose of cutting off the rights of White; it being understood by all the participants in the scheme that, as soon as this had been accomplished, the work was to be resumed upon the same basis as be fore, no rights to be affected, excepting those of White. The plaintiff's evidence was sufficient to make a prima facie case in support of this version of the transaction, and it was doubtless for this reason that the trial court over He ruled a demurrer thereto. But the defendant introduced evidence of a contrary tendency. He swore that the persons who were conducting the operations told him they were through, giving as a reason that at one time they did not find anything, and that the plaintiff had made a deal with some one else, and did not have to be drilling, and also saying that Young would not put up his part. also testified that he did not know that Moxley was going to quit, and had no agreement with him to give him a contract on any part of the land. It is true, as argued by the plaintiff, that there are features of the record that seem to lend support to his contentions on this phase of the case; but the question was one of fact, upon which the decision of the trial court is conclusive. The plaintiff cites cases holding that in an equitable action a reversal will be ordered on appeal, if the judgment is thought by the reviewing court to be against the weight of the evidence; but that is not the practice in this jurisdiction. It may be mentioned, as bearing upon the equities of the case, that the plaintiff testified that 2 days before being served with the notice he learned that the defendant was going to declare a forfeiture against all the claimants under the contract. American Surety Company of New York. Judgment for defendant, and plaintiff appeals. Affirmed. G. W. Hurd, of Abilene, and Charles Blood Smith and Samuel Barnum, both of Topeka, for appellant. Godard & Myers, of Topeka, for appellee. action in 1904 to recover the amount of a BURCH, J. The plaintiff commenced this guardian's bond that had been given in 1895 to secure the faithful discharge of duty by Henry Morgan, who had, in 1887, been appointed guardian of the property of the plaintiff, then a minor. The action was tried by the court without a jury, and judgment was rendered in favor of the defendant. The plaintiff appeals. He charges that the court committed error in the admission of evidence and argues that judgment should have been rendered for the plaintiff instead of for the defendant. [1] 1. The annual and other reports of the guardian, together with the orders of the probate court thereon, were admitted in evidence. The plaintiff contends that this was error. Section 5062 of the General Statutes of 1915 requires guardians to "account on oath annually, or oftener if required by the * The judgment is affirmed. All the Justices court," and section 3055 gives to the probate concurring. courts jurisdiction "to appoint and remove guardians for minors, and make all necessary orders relating to their estates, MORGAN v. AMERICAN SURETY CO. OF to direct and control their official acts, and (103 Kan. 491) to settle their accounts." The accounts and the orders approving them, are evidence of what was done, and they are competent evidence of the truth of the statement contained in them. They were properly admitted in evidence, but they did not conclude the plaintiff; he had the right to disprove the statements, but, unless disproved, the district court was compelled to accept them as true. [2] 2. Complaint is made of the admission of evidence to show that the plaintiff had sold, for large sums, real property received by him as a part of his estate. Evidence of the amounts realized by the plaintiff from the sale of property turned over to him by his guardian was immaterial, but judgments are not necessarily reversed because of the admission of immaterial evidence where the trial is by the court without a jury. It must also appear that the evidence was prejudicial. The presumption is that the immaterial evidence was disregarded. In a "Memorandum of Decision," the trial court named several amounts which the plaintiff had received for real property sold by him after reaching his majority. That real property had been received by him as a part of his estate. In that memorandum the court said: "In the absence of any positive evidence, Appeal from District Court, Shawnee the question arises whether the court should County. presume that Morgan was guilty of any breach Action by Robert Morgan against the of trust or misappropriation of the money re |