and the rights of the parties adjudicated as if the several suits had been originally combined in one; that the several actions are discontinued and the consolidated action is the only one left. 8 Cyc. 606; 4 Pl. & Pr. 701. We have no fault to find with these statements of the general effect of the consolidation of actions under our statute. But we cannot concur in the claim which defendant makes as to the consequences which follow from the consolidation. It is true, the effect of the consolidation is to join all the actions in one, and that the only judgment rendered is in the consolidated action, which necesThe sarily settles all the issues involved. statement that by the consolidation the several actions are discontinued merely means that no separate proceedings are thereafter taken in the original actions; pleadings filed entitled in one become a part of the pleadings in the consolidated action. None of the original actions is dismissed, but each stands on the docket waiting the action of the court in the consolidated action. The four causes of action against Mrs. Gregory in the suit in which the attachment bond was given never lost their identity as causes of action. The action in which they were set out was merely consolidated for the purposes of the trial with other actions which did not concern the surety company, and the consolidation had no effect whatever upon its liability on the attachment bond. In Akin v. Homes, 89 Kan. 812, 133 Pac. 849, the trial court consolidated an action for specific performance with one for replevin which was based upon the same contract. The case was first submitted to a jury, which returned findings of fact and a general verdict for the plaintiff. The court made findings of fact in favor of the defendant, set aside the findings and verdict of the jury, and rendered judgment for the defendant. It was held that the consolidation of the two actions for trial was proper, and that the court was authorized to make a final determination of the issues in both cases. [3] 3. The bond of the surety company was executed by W. R. Mitchell, agent for the company, with authority to attach the seal of the company. The same W. R. Mitchell appeared as attorney for the Harbor Business Blocks Company in the trial or in some of the proceedings in that case. The plaintiff insists that the surety company, through its agent acting as an attorney in the cause, had full notice and knowledge of all the proceedings in the trial, and therefore had not only notice of the consolidation and the amendments to the pleadings, but must be held to have consented thereto. Every one familiar with transactions in which surety company bonds are executed a local agent, who has authority to execute the bond and attach thereto the seal of the company, and that the authority of the agent is a limited one, and extends no further than to bind the company by these acts. The fact that the agent happens to be an attorney who becomes thereafter interested in the litigation in which the bond is given does not make him a general agent of the surety company so as to charge the company with notice of what takes place in the litigation. However, this is but the expression of our opinion upon a matter which, though raised in the briefs, it is perhaps unnecessary to decide, for the reason that the surety company was not entitled to notice of the consolidation or of the fact that amendments were made to the pleadings. We have no statute, as in Massachusetts, requiring notice of amendments to pleadings to be served upon the surety in such a case; and, besides, as already observed, the surety company could in no respect be prejudiced either by the consolidation or by the amendments. [4] 4. Another complaint is that the plaintiff is not entitled to recover upon the bond because she was not the owner of the property at the time the attachment was levied. This contention overlooks an express finding by the jury that she was the owner of the real estate at the time the attachment was levied. It is true, she testified that before the land was attached she conveyed it to her daughter with an understanding that the daughter should reconvey to her upon demand, and that the purpose of the transfer was to prevent the Harbor Business Blocks Company from recovering against her on the various notes she had given; further that, after judgment was rendered in her favor, her daughter refused to reconvey the property, and she was obliged to bring suit against the daughter for specific performance; that in that suit the court rendered a decree that she was the owner of the property and entitled to a reconveyance. There are several reasons why the surety cannot avail itself of the fact that plaintiff made a conveyance. The legal title stood in the daughter, but the plaintiff was the equitable owner, and her interest was subject to attachment; the bond was executed to protect her from any damage she sustained by reason of the unlawful attachment of whatever interest she had in the property. The issue of ownership was submitted by the court to the jury in the present case, and the finding is that she was the owner of the property when the attachment was levied. The contention that her possession was not disturbed by the attachment is of no force. She was entitled to recover whatever expenses she incurred in procuring the dissolution of the attachment. (185 P.) The judgment is affirmed. (105 Kan. 510) STANLY v. BUSER. (No. 22273.) (Supreme Court of Kansas. Nov. 8, 1919.) (Syllabus by the Court.) plaintiff $1,250 for attorney's fees, reason- There are other complaints of error in givably paid in procuring the discharge of the ing and refusing instructions which it is not attachment, $800 for expenses in procuring necessary to comment upon, for the reason evidence to discharge the attachment, and that they are predicated upon propositions $40 traveling expenses necessarily incurred already determined adversely to the defendin attending court. It is contended that ant. these costs and expenses were not occasioned by the attachment. The argument is that, the attachment being a mere ancillary proceeding, it must be assumed that the plaintiff would have paid out just as much for the purpose of establishing her defense against the promissory notes and for the purposes of recovering upon her cross-petition (which was for the amount she had paid upon previous notes) as if there had been no attachment levied. Perhaps this is true, but in order to have the attachment dissolved it was necessary for her to establish the fact that she was not indebted upon the cause of action sued upon, and the same evidence also established her right to judgment for the cancellation of all the notes, and for the other relief granted. The defendant's contention in this respect is fully answered by the decision in Parish v. Brokerage Co., 92 Kan. 286, 140 Pac. 835, where it was held that expenses necessarily incurred in procuring the dissolution of an attachment wrongfully issued, and the release of property unlawfully seized, including attorney's fees and the cost of depositions may be recovered by the owner in an action on the attachment bond. There it was said: "But the question of whether there was a debt which was justly due was tested on the final trial, and it was then determined that there was no indebtedness, and consequently an order was made vacating and setting aside the attachment. In order to establish that there was no basis for this claim and that the appellee was not indebted to the appellant in any amount, a trial of the merits was necessary." 92 Kan. 289, 140 Pac. 837. The authority cited by the defendant (6 C. J. 544) itself expressly states where a trial on the merits is necessary in order to dispose of the attachment such fees are allowed. The defendant's theory that the decision in Parish v. Brokerage Co., supra, is not controlling rests to some extent upon the erroneous assumption that the consolidation of the actions or the amendments to the pleadings or both together in some way dissolved the attachment as early as March 2, 1915. 1. ACCORD AND SATISFACTION 17-FAILS. ON FAILURE TO SATISFY. To make an accord effectual, there must be a satisfaction, and if payment on an accord is to be made when the agreement is made, and a party fails to make payment at that time, the accord fails and the other party may then sue on the original claim. 2. CUSTOMS AND USAGES 15(1)-EVIDENCE OF LOCAL CUSTOM TO DETERMINE AMBIGUOUS Custom and usage may be shown to elucitract, but where the contract is clear and date or explain something ambiguous in a con complete it cannot be changed or supplemented by evidence of a local custom, and in the present case it is held, that there was no room for the operation of a custom. 3. APPEAL AND ERROR 1058(1), 1068 (5)— TRIAL 260(1)-REFUSAL OF REQUESTED INSTRUCTIONS AS TO TENDER HARMLESS. Objections to rulings on testimony and to instructions of the court examined, and held to be without material error. Appeal from District Court, Sedgwick County. Action by Charles M. Stanly against H. J. Buser. Verdict and judgment for plaintiff, and defendant appeals. Affirmed. William Keith, of Wichita, for appellant. JOHNSTON, C. J. In this action Charles M. Stanly asked a recovery against J. H. Buser for his services in the sale of capital stock in the Argonia Oil & Gas Company. His claims were set forth in two causes of It became necessary to take depositions in action. One was on a written contract exCalifornia for use on the trial of the consoli-ecuted September 18, 1916, by which the dedated case, and this occasioned the outlay of fendant agreed to pay the plaintiff for his considerable money. Complaint is made that services $50 per week and a commission of the evidence is not sufficient to sustain the 5 per cent. of the par value of the stock sold allowance by the jury of $800 for these expenses, and the allowance for attorney's fees. We think the evidence sustains the findings and, besides, they have been approved by the trial court. by him, under which he acted for five weeks and one day from the execution of the contract, selling 340 shares of the stock at the par value of $10 a share, earning $283.50 as salary and $170 as commissions, only a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Pac. 671; Shubert v. Rosenberger, 204 Fed. 934, 123 C. C. A. 256, 45 L. R. A. (N. S.) 1062. part of which he alleged had been paid. The If payment on an accord is to be made second cause of action was for services per- when the agreement is made, and there is a formed on what was called a trial trip, con- failure to make payment at that time, the tinuing about a week, when the defendant other party is then entitled to sue on the accompanied plaintiff testing plaintiff's abil-original claim. Kauffman, Davidson & Co. ity and fitness as a salesman. During the v. W. F. Shaw & Co., 10 Cal. App. 572, 102 trip stock of the par value of $4,000 was sold, and the defendant agreed to pay plaintiff's expenses and reasonable compensation for the services rendered, which was alleged to be $200. The defendant had paid plaintif $250 on account, and he pleaded a tender of $140, stating that a judgment for that amount might be rendered against him. As a defense to the second cause of action, he pleaded accord and satisfaction, alleging that, after some controversy, plaintiff had agreed to accept $50 as compensation for his services on the trip, payment of which had been accepted by plaintiff. The jury found that under the written contract plaintiff had earned as salary $258.33, and that, having sold 335 shares of the stock, he had earned $167.50 as commission. It was further found that defendant had not carried out the compromise agreement as to the payment of the $50 for plaintiff's services on the trial trip, and that the reasonable value of those services was $200. It was also found that only $250 had been paid to plaintiff for services rendered under the written contract, and in the general verdict the jury awarded plaintiff the sum of $375.83. [1] Defendant contends on this appeal that as plaintiff agreed to accept $50 for his services on the trial trip, and as it was based on sufficient consideration, his promise then made was binding upon him, and his claim for that service, even if no payment had been made, was extinguished, and he could recover no more than the $50 then agreed upon. It is conceded that there was an accord between the parties, and, the claim being in dispute, it may be assumed that there was sufficient consideration for the agreement; but, under the evidence in behalf of plaintiff, there was no satisfaction. If there had been a satisfaction of the accord, or if the promise had been accepted as a satisfaction, defendant's contention might be upheld; but the general rule is that, to constitute a bar to an original demand, the accord must be fully executed. 1 C. J. 530. In his answer the defendant did not plead that plaintiff had accepted the promise as satisfaction, but did allege a payment, and the jury have found that payment was not made. As to a satisfaction it has been said: "It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails." First National Bank v. Leech, 94 Fed. 310, 36 According to the plaintiff's testimony which was evidently accepted by the jury, plaintiff agreed to accept the $50 if a check was given or payment made at that time. It was not done then, and no payment for salary or services was made until October 2d, when a payment of $150 was made under the written contract. The evidence of the plaintiff and the finding of the jury was that the $50 had never been paid and the accord had therefore never been satisfied. It is immaterial whether the transaction be designated as accord and satisfaction or as a compromise, for, if a compromise was not carried into effect by defendant, the plaintiff was at liberty to rely on the original claim which he held. As was said in Brown v. Spofford, 95 U. S. 474, 24 L. Ed. 508: "Nothing short of the fulfillment of that agreement would discharge the original demand, and that such a compromise to be available must be performed." It has been said that "Upon a breach of the demands of a compromise agreement by one party thereto, the other party may treat the agreement as a nullity and be remitted to his original cause of action." 8 Cyc. 535; Christensen et al. v. Hamilton Realty Co. et al., 42 Utah, 70, 129 Pac. 412; Reilly v. Barrett, 220 N. Y. 170, 115 N. E. 453; Shubert v. Rosenberger, supra. We find nothing substantial in the objection of the indefiniteness or incompleteness of plaintiff's averments in the second count of his bill of particulars. It is evident from the record that an issue as to accord and satisfaction was joined and contested to a conclusion at the trial. Complaint is also made as to the rejection of answers to questions relating to the amount of certain checks as to defendant's reasons why checks of that amount had been issued by him. The questions in part called for conclusions and as to what was in the mind of defendant when the checks were issued, and were therefore subject to the objections made. Proper testimony on the matter of payments and of what was said when the checks were issued was received and submitted to the jury, and it is clear that these rulings afford no ground for reversal. [2] Two questions relating to a claimed custom were refused of which complaint is made. It appears that, when purchasers were not ready to pay cash for the stock sold by plaintiff, approved notes were taken in (185 P.) An instruction requested as to the duties of the plaintiff stated that it was his duty to sell the stock for cash in order to earn a commission, when as a matter of fact there was no such provision in the contract and manifestly no intention of the parties that only cash sales should be made. As to the criticisms of the instruction relating to the application of the rule of accord and satisfaction, it may be said that it substantially conforms to the rules of law as herein determined. All of the objections to the instructions have been examined, and no material error is found in them. The judgment is affirmed. All the Justices concurring. received with the report of sales, certificates | it has become immaterial, since the jury have of stock were issued by the company. It found the indebtedness to be more than douwas contended by defendant that plaintiff's ble the amount tendered. commissions were not due until the notes had been collected, but no such provision was contained in the contract of employment. It was sought to show that there was a custom in the locality where the sales were made that agents selling stock should not receive commissions until the notes taken in payment had been paid. There was no ambiguity in the contract as to when payments of commission for stock sold were due and payable. It contains no technical terms, nor are any expressions peculiar to any avocation or locality used in the contract. Custom and usage may be shown to elucidate or explain something ambiguous in a contract; but, where the writing is clear and complete, its terms cannot be added to or varied by evidence of a custom. Within the authorities there was no room for the operation or application of usage or custom in the present case. McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121; Strong v. Ringle, 96 Kan. 573, 152 Pac. 631; Commission Co. v. Mowery, 99 Kan. 389, 161 Pac. 634, 162 Pac. 313; Manufacturing Co. v. Merriam, 104 Kan. 646, 180 Pac. 224; Henderson v. Petroleum Co., 104 Kan. 653, 180 Pac. 228. (105 Kan. 560) DAVIS v. WILSON, State Bank Com'r. (No. 22531.) (Supreme Court of Kansas. Nov. 8, 1919.) (Syllabus by the Court.) Again, under the contract plaintiff was to 1. STATES 191(2)—APPLICATION FOR MAN have a commission for the sale of stock. The sale was effected when payment was made, regardless of whether the payment was in cash or notes. It was the policy of the oil company and the defendant, its agent, to accept such payments, and it recognized the completion of the sales by accepting the notes and the issuance of certificates to the purchasers. When plaintiff and defendant made the trial trip and a sale of 400 shares of stock was made, notes were accepted in payment, and the transaction of the agents were closed by the issuance of the certificates. Aside from these considerations, the defendant did not plead the existence of a local custom, nor was it proposed to be shown that plaintiff was acquainted with the proposed custom; but the ruling herein is based on the view that there were no functions to be performed in this instance by a custom. DAMUS AGAINST BANK COMMISSIONER NOT ACTION AGAINST. An application for a writ of mandamus to require the bank commissioner to issue to a depositor in an insolvent bank of which he has taken charge a certificate (payable out of the assets of the bank, supplemented, if necessary. by the guaranty fund), the controversy turning upon the rate of interest such certificate should bear, and its determination depending upon the construction of the statute in relation to the matter, is not an action against the state, and is a proper proceeding for the purpose of procuring an interpretation of the statute. 2. BANKS AND BANKING 631⁄2-INSOLVENCY; INTEREST ON COMMISSIONER'S CERTIFICATES. Under the provision of the statute that upon taking charge of an insolvent bank the commis sioner shall issue to each depositor a certificate (payable out of the assets, supplemented if necessary by the guaranty fund) "bearing six per cent. interest per annum except where [3]. A general attack is made on the rulings a contract rate exists on the deposit, in which of the court in refusing instructions request-case the certificate shall bear interest at the ed, as well as in those that were given. Some contract rate," the holder of a certificate of of those refused were incorrect statements of the law, and others of them were fairly covered in the charge that was given, and those given appear to be a fair presentation of the issues of the case. deposit maturing after the closing of the bank, drawing interest by its terms at the rate of 4 only" (that is, until maturity), is entitled to a per cent. per annum "for the time specified commissioner's certificate bearing interest at 4 per cent. until paid, and not to one bearing interest at 6 per cent. after the date of maturity of the certificate of deposit issued by the bank. One of the requests related to the subject of tender. It appears that a tender and offer to confess judgment were made by defendant and these were briefly referred to Original application by W. E. Davis for by the court. Whether or not a more ex- a writ of mandamus to require Walter E. tended statement should have been made, Wilson, as Bank Commissioner of the State For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes of Kansas, to issue a certificate of indebted- tion of the statute, is purely ministerial, and ness. Denied. Hamilton & Hamilton, of Topeka, for plain tiff. Richard J. Hopkins, Atty. Gen., and C. A. Matson, of Wichita, for defendant. subject to control by mandamus. Construction Co. v. Sedgwick Co., 100 Kan. 394, 396, 164 Pac. 281; Cates v. Knapp, 104 Kan. 184, 178 Pac. 447. We do not wish to be understood as now deciding, however, that in case an issue of fact should be raised as to the validity of the certificate of deposit held by the plaintiff that the settlement of that question would be undertaken in a proceeding in mandamus. [2] 2. The statute does not provide in terms or in effect that the certificate issued to the depositor in a suspended bank by the state bank commissioner shall bear interest at the same rate for which the bank itself would have been liable. It says that, "where a contract rate exists on the deposit," "the certificate shall bear interest at the contract rate." Here a contract rate existed on the deposit. It was 4 per cent. There was no other contract rate. It is doubtless true that if while the bank had been a going concern the certificate of deposit had matured, and payment of it had been refused on due presentation, the bank would have been liable to the depositor for interest thereafter at the rate of 6 per cent.; and possibly the MASON, J. On May 29, 1919, the state bank commissioner, finding the Kansas State Bank of Salina, Kan., to be insolvent, took charge thereof for the purpose of winding up its affairs, and appointed a receiver, who has since had control of them. The bank had complied with the provisions of the state guaranty law, and its depositors were guaranteed by the depositors' guaranty fund. The statute provides that after the bank commissioner has taken charge of an insolvent bank "he shall at the earliest moment, issue to each depositor a certificate upon proof of claim, bearing six per cent. interest per annum, upon which dividends shall be entered when paid, except where a contract rate exists on the deposit, in which case the certificate shall bear interest at the contract rate." Gen. Stat. 1915, § 598. W. E. Davis, the holder of a certificate of deposit issued by the bank July 1, 1918, payable on the re-bank itself is so liable to the plaintiff at this turn of the certificate "twelve months after date with interest at the rate of 4 per cent. per annum for the time specified only," asked the bank commissioner for the issuance of a certificate on account thereof bearing interest at 4 per cent. per annum from July 1, 1918, to July 1, 1919, and thereafter at 6 per cent. The request was refused on the ground that 4 per cent. is the "contract rate" under the provision of the statute above quoted, and that the certificate to be issued to the applicant should bear no greater rate than that. To test the matter the applicant has filed a petition for a writ of mandamus, directing the issuance by the bank commissioner of a certificate bearing 6 per cent. interest after July 1, 1919. The commissioner contends that, assuming the allegations of the petition to be true, the plaintiff is not entitled to a writ, and upon the questions of law thus arising the matter is now submitted to the court. [1] 1. The point is raised that the proceeding cannot be entertained because it is in effect an attempt to sue the state without its consent having been given. Under the allegations of the petition it is the duty of the bank commissioner to issue to the plaintiff a certificate against the guaranty fund, which from July 1, 1919, should bear interest at 6 per cent. per annum if the plaintiff's interpretation of the statute is correct; otherwise at 4 per cent. until paid. The arguments disclose that the commissioner's refusal to issue the certificate demanded was based upon the belief that it should bear but 4 per cent. The commissioner's duty in the matter, so far as it turns upon the construc time (7 C. J. 651) subject to the right of the |