(69 Kan. 25)

SCHAEFER v. MILLS et al. (Supreme Court of Kansas. April 9, 1904.) REFORMATION OF CONTRACT-EVIDENCE.

1. In an action to reform a written contract, by parol evidence, on a claim of mutual mistake, the evidence to warrant a reformation must be clear and convincing beyond a reasonable doubt. (Syllabus by the Court.)

Error from District Court, Russell County; Lee Monroe, Judge.

Action by George Schaefer against Robert P. Mills and Oral S. Black. Judgment for defendants, and plaintiff brings error. Affirmed.

L. B. Beardsley, for plaintiff in error. Ira E. Lloyd and J. C. Ruppenthal, for defendants in error.

1901,

ATKINSON, J. On January 24, George Schaefer commenced his action in the district court of Russell county against Robert P. Mills and Oral S. Black to recover the balance of $1,015.03 claimed to be due him on a written contract for the sale of a stock of merchandise at the town of Gorham, in said county. The defense was that the written contract sued upon, through mutual mistake, an error of the party writing it, failed to state the real contract between the parties; and that plaintiff had settled, and had received in full the amount due him on the contract. Defendants asked that the contract sued upon be reformed, and that they recover their costs. The district court found in favor of defendants, and also decreed a reformation of the written contract to conform to the contract between the parties as proven. Plaintiff brings error to this court.

It is contended on the part of plaintiff in error that the findings and judgment of the court are not supported by sufficient evidence, and that the court was not warranted in reforming the contract. The controversy arose out of the sale of a stock of merchandise formerly owned by Schaefer, Mills & Weidle. In November, 1900, J. W. Householder, a brother-in-law of plaintiff, purchased the undivided one-third interest of John Weidle in this stock of merchandise. On account of some misunderstanding, Householder did not assume partnership relations with George Schaefer and Robert P. Mills, each of whom was the owner of an undivided onethird interest in the stock. On or about December 6, 1900, defendants, Robert P. Mills and Oral S. Black, purchased the interest of Schaefer and Householder. There was at the time a written contract entered into between the parties, being the contract sued upon by plaintiff. Defendants claimed that the written contract should have provided for the deduction of the liabilities from the amount of the stock and book accounts. Plaintiff

denied this claim of defendants. The contract sued upon is silent as to the deduction of the liabilities. This gave rise to the controversy between plaintiff and defendants.

In the settlement made the stock was invoiced at cost, less freight; to this was added the book accounts at their face value, less such notes and accounts as were mutually agreed should not be included; and from this amount, as the assets of the firm, was deducted the firm's liabilities. The difference was divided by three, to represent the interest of each of the three owners, Schaefer, Mills, and Householder, in the proceeds of the sale, which, thus determined, was found to be $1,802. Schaefer, on December 22d, accepted this sum as his portion of the proceeds of the sale. Schaefer claimed, however, that he at the time did not know the firm liabilities had been deducted. If the firm liabilities were not to be deducted, and defendants under the contract were to take the book accounts and assume the liabilities, as claimed by plaintiff, then plaintiff should have recovered. Upon the question of whether or not the liabilities were to be deducted from the assets, or whether defendants were to take the book accounts and assume the liabilities, much evidence was offered. The evidence was conflicting. The findings of the trial court are conclusive here. It is, however, contended by plaintiff that the parol evidence of defendants was insufficient to warrant the trial court in reforming the written contract, under the authority of the case of Bodwell v. Heaton, 40 Kan. 36, 18 Pac. 901, where the court, in the opinion, says: "We understand the rule to be, in actions to reform written instruments on the ground of mutual mistake, that the evidence must be clear and convincing, when, as in this case, it is parol. It is not enough that it shows a probability of mistake, but there must be a moral certainty of it; in other words, it must be established beyond a reasonable doubt." We have carefully examined the record in this case, and find the evidence abundantly sufficient to warrant the court in reforming the contract, under the rule recognized in the case cited.

The judgment of the district court is af firmed. All the Justices concurring.

(69 Kan. 130)

MISSOURI PAC. RY. CO. v. GRIFFITH. (Supreme Court of Kansas. April 9, 1904.) RAILROADS ACCIDENT AT CROSSING ISSUES. 1. Where the plaintiff sets up in his petition, as grounds of recovery for injuries sustained in a collision with a railroad train at a public crossing, specific acts of negligence of the railroad company in failing to give warning of the approach of the train, and in running at a high and reckless rate of speed, the trial court is not warranted in enlarging the issues, and in submitting to the jury, as an additional ground of recovery, the negligence of the defendant in permitting buildings and cars to be placed and to remain on the right of way in such positions as

JOHNSTON, C. J. At a crossing near the town of Lane a train of the Missouri Pacific Railway Company collided with a team and wagon driven by C. L. Griffith, destroying the wagon, killing one mule, crippling another, and greatly injuring Griffith. He brought this action to recover the damage sustained, and the only negligence alleged against the railroad company in his petition was that the locomotive and train which struck him "was being negligently and recklessly managed, in this, to wit, that it was being run at a high and reckless rate of speed; that no warning was given of its approach to said crossing on such public highway by ringing the bell on said locomotive, or by sounding the whistle thereof, or by any other means." In describing the crossing and the situation where the accident occurred, he averred that on the right of way and immediately east of the crossing the company permitted to be constructed and maintained two frame buildings which obstructed the view of the railroad track east of the highway, and also that at that time the company had placed on its side track a boarding train which extended easterly from the highway, and that this, together with the buildings mentioned, completely obstructed the view of a traveler approaching on the highway south of the railroad tracks. No negligence was imputed to the railway company on account of the location of the buildings or the position of the boarding train. In the course of the trial, which resulted in a verdict in favor of Griffith, the court charged the jury that: "The principal acts of negligence imputed to the defendant in this action by the plaintiff are that it permitted to be constructed and maintained two frame buildings in such a manner as to obstruct the view of its track east from the public highway, and that it placed upon its side track south of its main track a train of cars known as a 'boarding train,' extending easterly from about the center of the public highway in Lane, Kansas, where plaintiff desired and attempted to cross defendant's track, to near the station house of the defendant." In another instruction the jury were advised that the railway company should not allow any unnecessary obstruction on its right of way near the public crossing which would obstruct the view of the approaching train, and that, if the railway company unnecessarily

and negligently permits buildings or other structures or things to stand upon its right of way at a public crossing or highway, it is held responsible for injuries thereby resulting to others from such negligence, providing such others receiving injuries are free from fault. In still other instructions the attention of the jury was directed to the placing of the buildings on the right of way and the boarding train on the side track as grounds of negligence, and that if such negligence directly contributed to the injury of the plaintiff the jury might find a verdict in his favor.

The pleadings did not make the locations of the buildings and boarding train a ground of negligence nor a basis of recovery. That they were on the right of way was stated in the petition, but it was not averred that they were unnecessarily or negligently placed and maintained there. It is sometimes necessary that there shall be buildings on the right of way of a railroad near a public crossing, and also that cars shall stand on side tracks near a crossing for a short time, in such positions that either would obstruct the view of a traveler approaching a railroad track. In other cases the placing and maintenance of such obstructions may be wholly unnecessary, and may constitute negligence as to one injured in a collision with a train, where the injury would have been averted if the view had been unobstructed. The plaintiff, however, did not charge negligence in this respect, and the defendant had no cause to anticipate that it would be required to meet a charge of negligence not stated in the petition. The reference made to the obstructions did not enlarge the issues in the case. It was not improper to set forth in the petition the existence of the obstructions, as they to some extent affected the parties in respect to the care which each should exercise. Additional precautions should be taken and a higher degree of vigilance exercised by a traveler at a crossing where his view of the track is obstructed than if no such obstructions existed. Railroad Co. v. Hague, 54 Kan. 284, 38 Pac. 257, 45 Am. St. Rep. 278; Railway Co. v. Williams, 56 Kan. 333, 43 Pac. 246. On the other hand, a higher degree of care is required of a railroad company in running its trains over crossings where the view of the traveler on the highway is obstructed, or where the surroundings are such as to make it unusually difficult to see the train or observe the signals ordinarily given. Railroad Co. V. Hague, supra; Railway Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607. The existence of the obstructions mentioned in the petition and shown in the testimony may have been reasons for requiring other and different warnings of the approach of the train to the crossing than were given, and their existence, on the other hand, may have explained why the plaintiff below did not see the approaching train, and to some extent relieve him from

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the imputation of contributory negligence; but in no event was it competent under the pleadings to treat the existence and location of the buildings and cars as negligence upon which the jury might base a recovery. plaintiff must recover, if at all, on the specific grounds stated in his petition. The specific acts of negligence alleged in this case were the reckless rate of speed and the lack of proper warnings of the approach of the train, and there can be no recovery for any other act. If other grounds of negligence were relied on, they should have been distinctly set forth in the petition, and it was not competent for the court to enlarge the issues and submit to the jury grounds of recovery other than those raised by the pleadings. Railroad Co. v. Irwin, 35 Kan. 287, 10 Pac. 820; Railway Co. v. Moffatt, supra. The trial court not only made the obstructions a ground of negligence, but stated to the jury that placing and permitting the buildings and boarding train to remain on the right of way, and thus obstructing the view, was the principal act of negligence imputed to the defendant company.

For the error mentioned, the judgment of the district court must be reversed, and the cause remanded for a new trial. All the Justices concurring.

(69 Kan. 172)

KALINA & CIZEK v. UNION PAC. R. CO. (Supreme Court of Kansas. April 9, 1904.) VERDICT SPECIAL QUESTIONS-CARRIERS-CONTRACT-EXEMPTIONS-BURDEN OF PROOF -CONDITIONS OF RECOVERY.

1. When the jury answers a special question, "We do not know," such answer is, as to one upon whom the burden falls, an answer in the negative.

2. Where a common carrier seeks to defeat a recovery because of an exemption from liability contained in its contract of carriage, the burden rests upon it of proving that the loss falls within the exemption provided for in such contract.

3. But, where the shipping contract contains a lawful provision requiring the shipper to do something as a condition precedent to recovery, then the burden of showing the performance of such condition rests upon the shipper, and, if he fail to show performance, he must fail of recovery.

4. This rule applies as well to a case where it is made to appear during the progress of the trial that plaintiff is seeking to recover upon a shipping contract containing such condition, as to one where it has been counted upon in his petition, or set out as defensive matter by the carrier.

(Syllabus by the Court.)

Error from District Court, Ellsworth County; R. F. Thompson, Judge.

Action by Kalina & Cizek against the Union Pacific Railroad Company. Judgment for defendant, notwithstanding the verdict, and plaintiff's bring error. Affirmed.

C. J. Evans, for plaintiffs in error. N. H. Loomis, R. W. Blair, and H. A. Scandrett, for defendant in error.

2. See Carriers, vol. 9, Cent. Dig. § 722.

CUNNINGHAM, J. The plaintiffs in error sought by this action, brought originally before a justice of the peace, to recover their damages occasioned by the railroad company's delay in transporting two cars of cattle shipped from Ellsworth to Kansas City. The items of their damage were that they were compelled to sell on a lower market, and that the cattle had unduly decreased in weight by delay in transportation. It did not appear from their bill of particulars that any special shipping contract had been entered into. The plaintiffs had judgment without opposition in the justice court, from which an appeal was taken. In the district court the railroad company asked that the plaintiffs be required to make their bill of particulars more definite and certain, by setting out whether their contract of shipment was oral or in writing, and, if in writing, to attach a copy thereof to their bill of particulars. This was refused by the court. Upon the trial, and as a part of the cross-examination of plaintiff, it was shown that the shipping contract was in writing, and the plaintiff produced the same, and introduced it in evidence. This contract contained the following stipulation: "Unless claims for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination and before said stock has been mingled with other stock, such claim shall be deemed to be waived and the carriers and each thereof shall be discharged from liability." The jury found a general verdict in favor of the plaintiffs, and answered a special finding as follows: "Q. Did he [plaintiffs] give notice of his claim before his cattle had been mingled with other stock? Ans. We do not know." The company's motion for judgment upon the special finding, notwithstanding the general verdict, was sustained by the court, and judgment rendered against the plaintiffs for costs. This is the judgment they now seek to have reversed.

Now, the answer of a special question as this was answered is, as against the party on whom rests the burden of proof, an answer in the negative, or that such party has failed in his proof. A., T. & S. F. R. R. Co. v. Swarts, 58 Kan. 235, 48 Pac. 953. So, if the burden rested upon the plaintiffs to show that they had made the claim in time and manner required, then they had failed to make their case. The question then is, upon which party rested the burden of proofwhether upon the plaintiffs, to show that they had made claim for their damage, or upon the defendant, to show that they had not? The clause quoted from the shipping contract is such a one as might have been made between the parties. W. & W. Ry. Co. v. Koch, 47 Kan. 757, 28 Pac. 1013: Sprague v. Mo. Pac. Ry. Co., 34 Kan, 347, 8 Pac. 465; Goggin v. Kan. Pac. Ry. Co., 12 Kan. 416. If it were a condition exempting the carrier from his common-law liability as a carrier, the burden would be upon the car

rier to show himself within the exemption. 6 Cyc. 518; Hutchinson on Carriers (2d Ed.) § 259a. But the clause in question is not one exempting the carrier from its commonlaw liability, or limiting that liability, but one imposing a condition upon the shipper which he must observe before he may recover for a breach of the carrier's duty. In other words, it is a condition of recovery, and not an exemption from liability. Hence, when the shipper seeks a recovery, he must show compliance with the condition upon which recovery may be had. That in this case the shippers did not, in their bill of particulars, count upon this contract, or that the carrier did not plead it in defense, can make no difference. As soon as the plaintiff's admitted that they were endeavoring to recover under this contract, they were required to show compliance with the conditions upon which such recovery could be had. This the jury, by the quoted special finding, said they had failed of doing.

It is contended that, even if the making of the claim as provided was required to be proved by plaintiffs, still its omission ought not to defeat recovery, for the reason that the provision of the shipping contract did not contemplate or cover a case like this; that plaintiffs' loss could not be ascertained, and therefore no claim made for it, until after sale of the cattle; and that the carrier was not injured in any way by a failure to make timely claim. It is a sufficient answer to this to say that the contract, in terms, conditions plaintiffs' right to recover upon the timely making of this claim, and such contract is within the power of the parties to make.

We can discover no error on the part of the court below, and hence must affirm the judgment. All the Justices concurring.

(69 Kan. 39)

COLEMAN v. COLEMAN et al. (Supreme Court of Kansas. April 9, 1904.) AT LAW

WILLS-CONSTRUCTION-HEIRS

PERPETUITY.

1. A testator provided in his will that certain real estate devised to his four sons in equal proportions should not be sold until the youngest child arrived at the age of majority, and, "in case either one of them shall die without heirs or legal representatives of his own, the survivors shall take his portion of the said estate equally.' An infant son died after the death of the testator. Held, that the words "heirs of his own," when applied to the children of the deceased, meant lineal descendants or issue, and that the mother of the deceased child did not inherit its share of the real estate devised in the will.

2. The terms of the will considered, and held, that the remainder over to the children of the testator is not repugnant to the estate previously granted, nor does the will create a perpetuity.

(Syllabus by the Court.)

Error from District Court, Wilson County; L. Stillwell, Judge,

Action by Nellie Coleman against Clyde C. Coleman and others. Judgment for defendants, and plaintiff brings error. Affirmed.

S. S. Kirkpatrick, for plaintiff in error. T. J. Hudson, for defendants in error.

SMITH, J. In November, 1888, Charles Coleman, the husband of plaintiff in error, and the father of Clyde C. Coleman, Walter A. Coleman, and Charles F. Coleman, made his will. The wife was given a life estate in the homestead, and other provisions were made for her support and maintenance. With respect to the real estate in controversy it is necessary to consider the scope, effect, and meaning of the third item of the will, which reads: "I give and bequeath to my children, Clyde C. Coleman, Walter A. Coleman and Charles F. Coleman and such child or children that hereafter be born to me, all my estate which is not herein specifically designated and bequeathed to others, to be divided equally among them, giving to each of my said children, to be paid out of my general estate, the sum of $1500.00 as each shall arrive at the age of twenty-one years. I also desire that none of my real estate shall be sold [excepting two lots of ground designated] until the youngest surviving child shall arrive at age and in case either one of them shall die without heirs or legal representatives of his own, the survivors shall take his portion of the said estate equally." After the execution of the will another son was born, named Frederick. In December, 1888. Charles Coleman, the testator, died, and in May following the infant son, Frederick Coleman, died. Plaintiff in error, widow of the testator, declined to take under the will, but elected to take under the law, and one-half of the real estate except the homestead was set apart to her by the probate court. The homestead is not in controversy. This was an action in which the widow sought to recover the interest of the child Frederick, who died after its father, as its sole heir under the law of descents and distributions. The surviving sons of Charles Coleman, deceased, who were defendants below, claimed under the terms of the third item of the will above set out. It was agreed that Mrs. Coleman had received her part of her husband's estate. No part of the property involved in this action was needed to make up the widow's share under the law. Plaintiff below failed to recover. She has prosecuted proceedings in error to this court.

Counsel for defendants in error has incorporated in his brief the opinion of the trial court, which meets our approval. We quote a part of it:

"It is correct that under the laws of Kansas, and the facts of this case, Mrs. Coleman was the legal heir of the boy Frederick when he died. But did Coleman, the testator, when he wrote the word 'heirs' in his will, in the clause before quoted, use said

word in its primary sense, meaning thereby any one who would inherit, or did he use it in what may be called a limited sense, and refer only to children? In 2 Underhill on Wills, p. 822, it is said: 'It may appear from the context [of the will] that the testator has used the words "heir" and "heirs," not in their strict and primary sense, but in a limited sense, and as synonymous with the words "child" and "children." Cases of this sort are extremely numerous.' And on the following page of his work he cites over fifty cases decided (in the main) by courts of last resort in this country, wherein (the writer says) the word 'heirs' was held to mean 'children.' I have not had time nor opportunity to examine any of these cases, but I know of no reason for doubting the author's statement. See, also, Abbott et ux. v. Essex Co., 18 How. (U. S.) 202, 15 L. Ed. 352; Underwood v. Robbins (Ind. Sup.) 20 N. E. 230; 15 Am. & Eng. Ency, of Law (2d Ed.) p. 324. It is also said, on pages 824 and 825, 2 Underhill, that 'a devise to M. and W., in general language, but, if either of them should die without leaving an heir, then to the survivor, means if either should die without leaving children.'

"In determining, therefore, in what particular sense the testator used the word 'heirs,' resort must be had to the context of the will and the instrument in general and as a whole. The important and controlling matter to arrive at is the intention of the testator, as that is the polar star by which courts should be guided in construing the terms of a will. And it is proper to remember, in that connection, that there is doubtless no class of written instruments wherein the courts have taken greater liberties in the construction, arrangement, or substitution of words, in seeking to arrive at the intention of the maker, than in the case of wills. A familiar instance often arises as regards the conjunctions 'or' and 'and.' The rule is well settled that whenever necessary in order to ascertain the intent with which such words are used, and to give them effect when their meaning is ascertained, the disjunctive conjunction 'or' will be read as the copulative conjunction 'and,' and vice versa. Noble v. Teeple, 58 Kan. 398, 401 [49 Pac. 598]. numerous other instances, of the same general nature, might also be cited.

And

"Turning, then, to the will of Mr. Coleman, and examining the entire instrument, it will be noticed, in the first place, that the testator divided it into four separate clauses, which he styled 'items.' Item first simply contains some general directions about the payment of his debts. The fourth and last item relates to the appointment of his executors, and some other matters of detail, so that the second and third clauses of the will are the only ones containing testamentary dispositions. In item second he makes careful and seemingly ample provision for his wife. It is proper to infer that the testator,

when he drew his will, believed that his wife would accept its provisions. If he had not thought so, it is hardly reasonable to suppose that he would have exercised the painstaking care he did in the dispositions he made in this clause of the will in her favor. As bearing on this phase of the case, the following is quoted from 2 Underhill, p. 832: "The fact that the testator has made a substantial testamentary provision for his widow in lieu of dower, and then has devised all the residue to "his heirs," may raise a strong presumption that he does not intend she shall take as one of his heirs.' And the author cites a number of cases in support of this statement.

"Passing to item third in the will of Mr. Coleman, it will be seen that it deals entirely with the matter of the devises he made to his children. It begins by devising to them all his estate not previously designated and bequeathed to others, 'to be divided equally among them.' Further on he says: 'In case either of them shall die without heirs or legal representatives of his own, the survivors shall take his portion of the estate equally.' The dominant feature of this clause of the will is that the children should have all of the property not previously disposed of, and that they should have it in equal proportions. The testator was caring for his children as a class; it was them and their children he had in mind when he drew this clause of his will; the wife is not even alluded to. And to hold that when he used the terms 'heirs or legal representatives' he contemplated and intended, in the event of the death of any of his children without issue, that the shares of such children should all vest in the wife instead of the surviving children, it seems to me would be most manifestly at variance with the general purport and tenor of the will, as gathered from the entire instrument. It might also be said that such an interpretation would be directly opposite to the practical construction given the will by the plaintiff herself, as shown by her conduct in the premises, and acquiescence in the rights of the surviving children to the property in controversy, for more than ten years prior to the commencement of this action."

The case of Abbott et ux. v. Essex Company, 18 How. 202, 215, 15 L. Ed. 352, cited in the opinion of the learned judge, is particularly applicable. The clause of a will before the court reads: "It is my will, that, if either of my said sons, namely, John or Jacob, should happen to die without any lawful heirs of their own, then the share of him who may first decease shall accrue to the other survivor and his heirs." It was

held that by use of the words "lawful heirs of their own" the testator meant lineal descendants or issue.

It is next contended by counsel for plaintiff in error that, if the words "heirs or legal representatives of their own" mean sur