guided in their deliberations by the universally recognized principles of justice and common fairness between man and man. Α technical and literal interpretation of the contract which violates manifest justice will not be adopted, but its language will be extended or restricted so as to render it just and fair upon the presumption that the parties so intended. We cannot concur with the interpretation contended for by the appellant in this case. Other questions are discussed by counsel; but, as those discussed dispose of the case, none other need be considered. The judgment of the trial court is affirmed. JOHNSTON, C. J., and BURCH, MASON, SMITH, and BENSON, JJ., concurring. PORTER, J. (dissenting). There were two sides to this lawsuit. I cannot agree that the plaintiff's evidence was admitted for the purpose of showing that he had not been inefficient in the management of the business. That he had not been efficient was a matter of defense. It is true, the petition alleges that he had been efficient and competent, but the relief was demanded on the ground that the profits of the business amounted to $779.52, a sum so near the amount stipulated in the contract that equity would regard the condition as substantially complied with. He undertook to show that the profits had amounted to this sum, and was permitted to introduce secondary evidence for that purpose, without any attempt to procure the best evidence, and other incompetent testimony was admitted in support of the same contention. It is true that he stated that in his opinion the profits approximated the amount claimed, but there was no competent evidence offered showing that the profits of the business amounted to as much as $1. The plaintiff knew nothing of the cost of the material, except in a few instances; he knew nothing about the amount required by the firm to keep contract work in repair, and it was impossible for him, or for the jury from his evidence, to determine that there had been any profits. He testified to the amount expended for labor during a portion of the time the contract was in force, and he stated that the business, from its nature, was generally considered a profitable business. Of course, equity would not deny him relief because the profits did not amount to $800, but, on the theory of his petition, it was necessary for him to establish by a preponderance of the evidence that there had been some profits; it was also necessary in order to determine the proper measure of his damages. He may be entitled to recover damages, but the case should be reversed, and a new trial ordered because of the errors in the admission of evidence. (82 Kan. 418) HOTHAM v. BERRY. (Supreme Court of Kansas. May 7, 1910.) (Syllabus by the Court.) 1. PRINCIPAL AND SURETY (§ 194*) — CONTRIBUTION BETWEEN SURETIES. Where two persons become sureties upon a promissory note, and one of them pays the note two days before maturity, the principal being then and for some time before and after unable to pay, such premature payment will not of itself relieve the other surety from contribution. Surety, Cent. Dig. §§ 605-623; Dec. Dig. § [Ed. Note.-For other cases, see Principal and 191.*] 2. PRINCIPAL AND SURETY (§ 194*) - CON TRIBUTION-RELEASE OF SURETY. In such a case where one of the sureties furnishes the money to pay the note and intrusts it to another, to be used for that purpose and such other for his own purposes obtains the check of a third person in exchange with such check pays the note, such payment for the money received from the surety and will not, because made in that manner, release the other surety from contribution. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 605-623; Dec. Dig. § 194.*] Appeal from District Court, Atchison County; B. F. Hudson, Judge. Action by J. C. Hotham against E. M. Berry. Judgment for defendant, and plaintiff appeals. Reversed, with directions. James W. Orr, W. P. Waggener, and James M. Challis, for appellant. J. L. Berry, for appellee. GRAVES, J. This action was commenced in the district court of Atchison county by the appellant to compel contribution from the appellee for money paid by the appellant in the discharge of promissory notes upon which they were co-sureties. The plaintiff was not satisfied with the judgment of the district court and appeals. The case was tried in the district court upon the written statements of the witnesses, and the same testimony is presented here. The notes were executed by J. W. Buis as principal to George Storch as payee, and by J. C. Hotham and E. M. Berry, the parties hereto, as sureties. There were four notes all dated March 30, 1903. One for $200 was payable four months after date, another for $200, payable six months after date; one for $334.70 and one for $65.30, each payable nine months after date. The last-named note was payable to Oscar Lips as payee instead of George Storch. About the time the first note became due, the principal being unable to pay it, the appellant furnished the money with which it was paid. It is claimed that the payment was made two days before it became due and the district court so found, and upon this finding held that it was a payment before default by the principal and operated as a release of the co-surety from con For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 108 P.-51 cause of complaint because Hotham did not personally pay Storch with cash out of his own hand. It does not seem just that this whole burden should be borne by Hotham and Berry escape from the performance of his fair and just portion thereof. It has been said that one surety cannot require contribution from another until the debt has been actually paid, and yet as a general rule one co-surety may enforce contribution from another without having paid anything if he by some arrangement with the creditor has assumed and satisfied the debt of his principal. In this way equity regards the substance of the transaction and ignores its form. 1 Brandt on Guaranty and Suretyship, § 311. tribution. As we understand the law of contribution, it is founded upon the rules of equity. Co-sureties have, under these rules, been held to share the burdens of the obligation equally except where the rule of equality has for some substantial reason been broken. No mere technical legal rule should be permitted to override the rules of justice and fairness which have always been recognized as existing between sureties. Under the circumstances, we think the time of payment immaterial. It was evident some time before the payment of Hotham that Buis, the principal, would be unable to pay the note at maturity. It was apparent that nobody's rights could be injuriously affected by payment two days before maturity, and it has been since shown that no harm was done by this premature payment. It would have been a vain and useless thing for the appellant to have waited until the expiration of the two days upon the possibility that the principal, who was known to be hopelessly unable to pay, might not make default. The law does not require the performance of a vain and useless act. Berry, the co-surety, lost nothing by Hotham's prompt action. Why he should be released from the performance of his obligation to pay his proportion of this joint liability we are unable PRUNTY et al. v. CONSOLIDATED FUEL to see. No reason has been suggested. seems to us to be a case where a naked technical rule of law is invoked to avoid the performance of a just and equitable duty. No (Supreme Court of Kansas. May 7, 1910.) fair and reasonable excuse has been stated 1. PLEADING (§ 123*)—ANSWER-General Defor this refusal to pay. It The conclusions here reached will make it unnecessary to consider other questions discussed by counsel. The judgment of the district court is re versed, with direction to enter judgment in favor of the appellant against the appellee for an amount equal to one-half the gross sum paid by Hotham less payments made to him by Buis. All the Justices concurring. NIAL. (82 Kan. 541) & LIGHT CO. CAUBLE et al. v. SAME. We also think that Hotham ought to be credited with the payment of the last two notes. While the check of the De Kalb Telephone Company was actually used to make the payment, it was simply the form in which the money furnished by Hotham had reached the exchange. The check was by every reasonable intendment the property of Hotham, and the mere fact that the money while on its way from the hands of Hotham to Storch had become transferred into this check does not change the real substantial fact that Hotham's money paid the notes. The De Kalb Telephone Company was under no obligation to pay these notes, and the check was issued by it because of the benefit it had received from the money furnished by Hotham. The money of Hotham in this roundabout manner paid the debt of Berry. It seems that, under the equitable considerations by which the relations between sureties are supposed to be controlled, no just reason exists for the technical distinction drawn by appellee between direct payment by Hotham made personally, and payment by another for him with a check obtained with his money from a third person. The fact remains that the debt was paid and that Hotham furnished the money by which it was extinguished. Berry does not seem to have any just Appeal from District Court, Wilson County; James W. Finley, Judge. Actions by G. R. Prunty and Nettie B. Prunty against the Consolidated Fuel & Light Company, and by William Cauble and Lydia Cauble against the same defendant. Judgments for plaintiffs, and defendant appeals. Reversed and remanded. Atwood Cady, for appellant. B. F. Carter and C. W. Shinn, for appellees. PER CURIAM. The appellees in each of these cases filed their petition against the appellant for the purpose of canceling in each case an oil and gas lease. The appellant filed a demurrer in each case, which was by the court overruled. Thereupon the appellant in one case filed an answer in which it "denies each and every allegation in the second amended petition herein that is prejudicial to the rights of the defendant"; and in the other case the appellant filed an answer which "denies each and every allegation in the plaintiffs' petition herein that is adverse to the rights of the defendant." Thereupon the appellant in each case filed a motion for a judgment in its favor on the pleadings, and the appellees in each case filed a motion for judgment on the pleadings in their favor. After argument, the court in each case overruled the motion of the appellant and sustained the motion of the appellees. It must be observed that this was not a submission of either case to the decision of the court upon the pleadings; but, while each motion called for a judgment upon the pleadings, the motions were adversary, each party claiming judgment in his favor, the appellant contending that the petition stated no cause of action against it, and the appellees contending that the answer was a nullity and raised no issue, that the answer denied no fact specifically, but left to the court to determine what was "adverse" and "prejudicial" and to consider such matter traversed. We have examined the petitions and think the court was correct in overruling the demurrer and motion for judgment on the pleadings directed thereto. The judgment, therefore, in each case is reversed, and each case remanded for further proceedings in accordance with these views. BURCH, J., dissenting. (82 Kan. 548) HUGHES v. DELAUTRE. - In an action to recover land, where the title appeared to be in plaintiff, but there was evidence tending to show that defendant was by purchase the equitable owner of at least onehalf of the property and entitled to its possession, and that plaintiff knew of all these transactions when he purchased the property, and knew that defendant had been in possession of the property, paying taxes and claiming ownership, for years before the transfer of the legal title to him, it was error to sustain a demurrer to defendant's evidence, and give judgment for plaintiff. [Ed. Note. For other cases, see Ejectment, Dec. Dig. § 108*] PER CURIAM. Action to recover two lots As to whether the motion of the appellees in Liberal. In 1901 the lots were owned by for judgment on the pleadings was correctly Hughes and his son-in-law, Naylor. Naylor decided depends upon whether the answer in gave a mortgage on his half to Beasley for each case was sufficient to put the plaintiffs $421. There is testimony that afterwards, therein upon their proof; whether in fact the and before March 2, 1902, Hughes sold his answer raised any issue. The usual form of half interest to Naylor. On that date Naylor a general denial to a petition in this state is sold the property to McMains, who gave a that defendant denies each and every allega- new mortgage on the whole to Beasley for tion of fact in the petition contained. In $668.85. The mortgage covered $191.45 of Munn v. Taulman, 1 Kan. 254, 81 Am. Dec. debt belonging to Naylor, and this interest 508, a denial in this form, "denies each and Naylor assigned to Hughes, who collected the every allegation in plaintiff's petition alleged money in August, 1903. When Naylor sold against him," while not approved as good the property to McMains, he surrendered posform, was held sufficient to apprise the plain- session of the same. In December, 1902, Mctiff what defense was intended to be set up Mains sold the property to Delautre and in bar of his claim. In Webster's Universal Blake, and soon afterwards Blake conveyed Dictionary, in the definition of "adverse," his interest to Delautre. Since that time Deamong the synonyms given are "opposite," lautre has been in continuous possession of "hurtful," "unfavorable"; and as synonyms the property. The deeds from Hughes to of "prejudicial" are given "hurtful," "injuri- Naylor, and later from Naylor to McMains, ous," "disadvantageous." In so simple a were not recorded, and it is claimed that they matter as a general denial there is no occa- were lost. In 1908 Hughes obtained a warsion to depart from the well-recognized form, ranty deed to the lots from Naylor, and a and probably the court could without prej-quitclaim deed from McMains, and then udice have sustained a motion to make these brought this action. On the trial Hughes proanswers more definite and certain; but we duced an abstract, which it was admitted do not think the answers were nullities and so defective as to raise no issue, but were sufficient to apprise the appellees what defense was intended to be maintained in bar of their claims. showed the state of the record and the record title to the lots to be in Hughes. Delautre then offered evidence tending to show that Hughes had sold his interest to Naylor, and of the sale of the property by Naylor to Mc For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Mains, also the mortgages mentioned, some evidence tending to show knowledge by Hughes of the transfers and the mortgage which purported to cover the whole property, as well as admissions and statements of his that he had formerly parted with his interest in the property, and also proof that Delautre had been in possession of the property for about five years, and had paid the taxes on it except for one year. The court sustained a demurrer to Delautre's evidence, and gave judgment for Hughes. This was error. While the legal title appeared to be in Hughes, there was evidence tending to show that Delautre was the equitable owner of at least one-half of the property, and entitled to the possession of the same. The testimony tends to show that Hughes knew of all these transactions and transfers. If Naylor had not conveyed the lots to Hughes, he could hardly have claimed ownership as against Delautre, because his deed to McMains was not recorded; and from some of the testimony it appears that Hughes is in no better position, at least as to the halfinterest formerly owned by Naylor. He is bound to know that Delautre had been in possession of the property, paying taxes and claiming ownership, for years before the transfer from Naylor to himself, and must be held to know what an inquiry would have disclosed. The testimony of appellant cannot be ignored. It tended to show an interest and right of possession in Delautre, and a demurrer to his evidence should not have been sustained. JOHNSTON, C. J. This was an action to recover damages for the wrongful garnishment of the funds and property of appellant. It is alleged that the State Bank of Commerce filed an affidavit for attachment and caused a garnishment summons to be issued and served on the Marion State Bank, thus tying up a deposit of appellant in that bank as well as two promissory notes, and that, when certain checks on the deposit which came into the hands of the State Bank of Commerce prior to the garnishment proceeding were presented, they were necessarily refused. It was alleged, too, that when the garnishment proceeding was tried the district court decided in favor of appellant dissolving the garnishment, and that upon appeal this decision was affirmed. Bank v. Dody, 71 Kan. 98, 79 Pac. 1092. In the present action the court instructed the jury that appellant was entitled to recover any damages necessarily incurred in releasing his property from the garnishment, that is, he could recover: First, his personal expenses, including the value of his time, if any had been proven; second, he could recover a reasonable attorney's fee incurred by him in se curing the release of his property and the necessary expenses of his attorney; and, third, he might recover the interest upon the money as well as the value of the property impounded by the garnishment. In the findings the jury allowed him $245.35 as interest on the notes; $185.40 as interest on the money; and $80 as attorney's fees. Appellant, who was a country merchant and also en Judgment will be reversed, and the cause gaged in the cattle business, insisted that he remanded for a new trial. (82 Kan. 406) DODY. STATE BANK OF COMMERCE. (Supreme Court of Kansas. May 7, 1910.) (Syllabus by the Court.) had sustained a loss of profits by reason of the wrongful garnishment, and also that his credit was impaired by the same cause, for both of which he was entitled to recover. The court, however, instructed the jury that these things were too remote, speculative, and uncertain to form the basis of a recov GARNISHMENT (§ 251*)—WronGFUL GARNISH-ery, and of this ruling complaint is made. MENT MEASURE OF DAMAGES. In an action to recover damages for the wrongful attachment of money and notes by way of garnishment, where there is no malice nor grounds for the recovery of exemplary damages, the measure of damages is interest on the money and notes during the time they were held under the garnishment process and the necessary expenses incurred in regaining possession of the property. Neither the loss of prospective profits in the general business of the owner because a part of his property was garnished nor injury to his credit are elements of damage. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. 475; Dec. Dig. § 251.*] Appeal from District Court, Marion County; O. L. Moore, Judge. Action by W. A. Dody against the State Bank of Commerce. Judgment for plaintiff for less than the amount claimed, and he appeals. Affirmed. W. H. Carpenter, for appellant. H. S. Martin, for appellee. In this there was no error. No malice was shown, and there was no claim that appellant was entitled to exemplary damages. In the absence of malice, appellant was entitled to the actual damages resulting from being dispossessed of his property during the time it was detained, together with the necessary expenses incurred in gaining possession of the same. As the money and notes were restored to him, the material injury suffered was the deprivation of their use while they were impounded by the garnishment. there had been deterioration, a loss of part, or some special damage, proximately and naturally resulting from the garnishment, this might have been recovered; but in view of the character of the property, and that all taken was recovered, the value of the use as well as the necessary expenses was a fair measure of damages. The injury to credit and the loss of profits in appellant's general If a fair measure of such value. Appellant invokes the rule of liability which is applied where a bank refuses to pay money to a depositor; but, as appellant had no deposit with appellee, that rule does not apply. business alleged to have arisen from the tying up of some of his capital for a time are collateral disadvantages and are too speculative and remote to afford a basis for assessing damages. While the authorities are not uniform, they are generally to the effect that In its cross-petition in error appellee comthe loss of prospective profits is not an ele- plains of a ruling of the trial court as to the ment of damage in cases of this kind. In allowance of attorney's fees; but as its prosome instances where the loss of profits is ceeding was brought under the old Code, and the direct and proximate result of a wrong, not within a year from the time the motion and it can be measured with certainty, it is for a new trial was overruled and the final allowed. For instance, in Hoge v. Norton, | judgment rendered, this complaint is not open to our consideration. 22 Kan. 374, where a herd of cattle were wrongfully attached and placed in an inferior pasture and given improper care, which operated to prevent the ordinary increase in weight and value, and where the loss was the direct result of the wrong and was susceptible of reasonably certain measurement, it was held that the gains so prevented might be recovered. In somewhat similar cases the same measure has been employed. Brown v. Hadley, 43 Kan. 267, 23 Pac. 492; Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189; Gas Co. v. Bailey, 77 Kan. 296, 94 Pac. 258. Other cases furnish examples of losses of profits which were deemed to be too remote, contingent, and uncertain to warrant their allowance. M., K. & T. Rly. Co. v. City of Ft. Scott. 15 Kan. 435; Walrath v. Whitte kind, 26 Kan. 482; Harvester Works Co. v. Cummings, 26 Kan. 367: Gas Co. v. Glass Co., 56 Kan. 614, 44 Pac. 621; States v. Durkin, 65 Kan. 101, 68 Pac. 1091; Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861. The judgment of the district court will be affirmed. All the Justices concurring, except GRAVES, J., who did not sit. (82 Kan. 522) HAWKINS v. WINDHORST.† (Supreme Court of Kansas. May 7, 1910.) (Syllabus by the Court.) BILLS AND NOTES (§ 92*)-SALES (§ 174*)— CHECK-CONSIDERATION. The mutual and concurrent promises of parties in the sale and purchase of cattle wherepartial payment for the cattle sold constitute in a check was given by the purchaser as a sufficient consideration for the check; and, when an action is brought by the payee against the drawer on the protested check, the drawer cannot defend on the ground that no cattle were received by the purchaser, when it appears that the cattle were tendered to him, and that the nondelivery of them was due to the failure of the purchaser to perform his part of the agree ment. [Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 92; Sales, Cent. Dig. § 434; Dec. Dig. § 174.*] Appeal from District Court, Edwards County; Charles E. Lobdell, Judge. Action by Miley Hawkins against E. C. Windhorst. Judgment for defendant, and plaintiff appeals. Reversed and remanded. F. Dumont Smith and A. C. Dyer, for appellant. G. Polk Cline and W. G. Fairchild, for appellee. The appellant was a merchant and was also engaged in carrying on a farm as well as the cattle business. How far the detention of the money and notes may have lessened his profits as a merchant farmer and stockman is largely a matter of conjecture. How much of the losses in his general business were attributable to a tying up of a part of his capital, and how much to other causes, would have taken the jury into the region of speculation. It is altogether too remote and uncertain to form a safe basis of recovery, and the same is true of the alleged injury to JOHNSTON, C. J. This was an action by credit. Casper v. Klippen, 61 Minn. 353, 63 Miley Hawkins to recover from E. C. WindN. W. 737, 52 Am. St. Rep. 604; Union Na- horst the proceeds of a bank check drawn uptional Bank of Chicago v. Cross and another, on her account by her husband, Fred Wind100 Wis. 174, 75 N. W. 992; Myers v. Far-horst. There is testimony to the effect that rell, 47 Miss. 281; Trawick v. Martin Brown Fred Windhorst purchased 92 head of cattle Company, 79 Tex. 461, 14 S. W. 564; Mitchell v. Harcourt et al., 62 Iowa, 349, 17 N. W. 581; Davidson v. Oberthier, 42 Tex. Civ. App. 337, 93 S. W. 478; Crymble v. Mulvaney, 21 Colo. 203, 40 Pac. 499; 4 Sutherland on Damages, § 1101. See, also, monographic note to Tisdale v. Major, 68 Am. St. Rep. 272. from Hawkins, and as part payment gave the check in suit to Hawkins, that the cattle were taken to Windhorst's in accordance with the agreement, but he declined to receive them, and, the check having been received and protested, this action was brought. It appeared in the trial that Fred Windhorst had acted as agent of his wife in business transactions, including the issuance of checks, but to what extent and for what purposes were matters of dispute. The scope of the agency of Fred Windhorst and the means of establishing it were matters of contention at the first trial, The value of the use of the property may be recovered, and where, as here, it consisted of money and notes that were withheld from appellant, the interest thereon from the time they were detained under the garnishment is For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes † Rehearing denied June 17, 1910. |