from the transcript of the report filed in the court, or inadvertently omitted from the appeal-bond, the defect could have been cured by amendment or the filing of a pleading, but, if there was such omission, no correction was made. In the state in which we find the record, the appropriation of these lots was not in issue, and the testimony concerning their appropriation was unwarranted. The special findings of the jury show that damages were allowed for the taking of the lots which were not involved in this appeal, but it is impossible to ascertain therefrom the amount awarded for the appropriation of such lots, and hence there must be a reversal. The other matters complained of require no attention. The cause will be remanded for a new trial. All the justices concurring.

(41 Kan. 740)

CHICAGO, K. & W. R. Co. v. HURST. (Supreme Court of Kansas. June 7, 1889.) EMINENT DOMAIN-PUBLIC LANDS-COMPENSA

TION.

Where a railroad company, by condemnation proceedings, procures a right of way over land occupied by a person who holds the same as a timber culture claim under the laws of the United States, the title thereto being still in the United States, the occupant of the land can recover damages from the railroad company only for the diminished value of his interest in the land, and not for the dimin

ished value of the land itself. (Syllabus by the Court.)

the proper rule for the measurement of the plaintiff's damages occasioned by the railroad company's procuring its right of way across his timber culture claim? This question is made manifest from the following statement of a portion of the facts of the case. The plaintiff, in his petition, substantially alleged that he was the owner of all the above-described land. The defendant, the railroad company, as a first defense to the plaintiff's petition, set forth a general denial, and as a second defense thereto set forth that the plaintiff had no title to the second described land, but only a timber culture claim, and then alleged as follows: "That said plaintiff has abandoned said lands, and has failed to put out, cultivate, protect, and keep in good condition the timber, which he is required by law to put out, cultivate, protect, and keep in good condition in order to prevent said lands from reverting to the United States, and to protect his title to the same. This allegation was stricken out by the court, and the defendant excepted. The case was then tried before the court and a jury, and the court instructed the jury, among other things, as follows: "First, in assessing damages in this case you may take into consideration all incidental loss, inconvenience, and damage, present and prospective, which may reasonably be expected to result from the construction and operation of the road in a legal and proper manner; second, the actual

Error from district court, Ottawa county; value of the land appropriated by the defendM. B. NICHOLSON, Judge.

Geo. R. Peck, A. A. Hurd, and R. F. Thompson, for plaintiff in error. Chipman & Maltby, for defendant in error.

ant for its right of way; and, third, damage to the rest of the farin by reason of the appropriation of the right of way and the construction of said railroad upon and through the farm; and to arrive at the damage, if VALENTINE, J. This was a proceeding any, to the rest of the farm, you may take ininstituted by the Chicago, Kansas & Western to consideration the general course of said Railroad Company to procure a right of way road through said farm, the height of the emover and across certain lands in Ottawa coun- bankments, the depth of cuts, the inconventy, including, among others, the land of Will-ience, if any, of passing from one part of the iam M. Hurst. The commissioners awarded farm to another, if any such appear, the into Hurst $217 as damages, and after this convenience, if any, of passing from the farm award was made Hurst appealed to the dis- to the public highway, the expense of maktrict court, where the case was tried before ing and maintaining farm crossings." The the court and a jury, and judgment was ren- jury then rendered a general verdict, assessdered in favor of Hurst and against the rail- ing the plaintiff's damages at $1,051.254, and road company, awarding to Hurst the sum of made several special findings of facts. They $1,051.254 as damages, and the railroad com- found that "the fair market value per acre pany brings the case to this court for review. of the lands claimed by the plaintiff” “imThe plaintiff Hurst claimed 240 acres of mediately before" the right of way was taken land, all in one body, but it was not all held was "$15 per acre," and immediately afterby the same kind of title. One portion of the wards was “$11.75 per acre." They, in efsame, consisting of 120 acres, Hurst held by fect, found that the land to which the plaina complete and perfect title, and it is de- tiff had a full title was damaged in the aggrescribed as follows: The W. of the S. E. 1, gate to the amount of $468.47, and they and the S. W. of the N. E. of section 6, found that the timber culture claim was damin township 11 S. of range 1 W. The other aged as follows: "(5) How many acres did portion Hurst holds only as a timber culture the defendant take for its right of way out claim under the laws of the United States, and the title thereto is still in the United States, and it is described as follows: The E. of the N. W. 4, and the N. E. of the S. W. of section 6 in township 11 S. of range 1 W. The principal question involved in this case is as follows: Did the court below adopt

of the east half of the north-west quarter and the north-east quarter of the south-west quarter of said section 6? Answer. Thirteen and seven hundredths acres. (6) What was the fair market value per acre of the land taken by the defendant for its right of way through the east half of the north-west quar

(41 Kap. 54)

HEITHECKER v. Fitzhugh.

(Supreme Court of Kansas. June 7, 1889.) COSTS ON APPEAL.

Where a plaintiff in error brings up for review a judgment which includes an amount about which there is no controversy, and the part complained of is found to be erroneous, so that the judgment is reversed in part and affirmed in part, he is entitled to recover all of his costs which accrued in the appellate court.

(Syllabus by the Court.)

On rehearing. For the commissioners' opinion and statement of the case, see 20 Pac. Rep. 465.

Grattan & Grattan, for plaintiff in error. Lucien Earle, for defendant in error.

JOHNSTON, J. On the rehearing, a modification of the judgment rendered by this court is asked by the defendant in error. The judgment given.by the district court against Heithecker, which was ordered to be reversed, was for $432.40. This judgment was based upon two claims, one for $292.40 on notes alleged to have been left with Heithecker for collection by E. C. Thornton

ter and the north-east quarter of the southwest quarter of said section 6, at the time said right of way was so appropriated by the said defendant? A. $18 per acre. (7) At the time the defendant's said right of way was condemned through the lands described in the first question as set forth above and numbered 1,' was the title to the east half of the northwest quarter and the north-east quarter of the south-west quarter of said section 6 in the United States? A. Yes." "(10) At the time the defendant's said right of way was condemned through the east half of the northwest quarter and the north-east quarter of the south-west quarter of said section 6, did the said plaintiff have any interest in said lands except such as he held under a timber culture entry made under the laws of the United States? A. No." "(12) In addition to the value of the land taken by the defendant for its said right of way, and at the time of such taking, what were the real and actual damages to the remainder of the east half of the north-west quarter and the north-east quarter of the south-west quarter of said section 6 by reason of the taking of said right of way through the same by the defendant? & Co., and which he had collected for them, A. $347.524." The aggregate amount of and also a claim of $140 for cigars sold to damages allowed by the jury to the plaintiff him by E. C. Thornton & Co.; both of which with reference to the timber culture claim claims it was alleged bad been assigned by was $582.784. It would seem from the fore- E. C. Thornton & Co. to Fitzhugh, the degoing proceedings that the case was tried in fendant in error. Prior to the beginning of the court below by the plaintiff and the court these proceedings, a notice of garnishment upon the theory that the plaintiff had the had been served upon Heithecker by a credright to recover damages to his timber cult-itor of Thornton & Co., and an attempt made ure claim in the same manner and to the to subject what was due from Heithecker to same extent as though he had full and com- the payment of Thornton & Co.'s debt. In plete title to the land, and that the damages this action Heithecker denied that the notes awarded to him were awarded to him upon were left with him for collection, and claimed that theory. This was error. Railroad Co. that he had purchased and paid for the same. v. Gates, 41 Kan. ante, 632; Railroad He admitted that he was indebted on the Co. v. Ingalls, 15 Neb. 123, 16 N. W. Rep. claim of $140 for the cigars purchased from 762. The claimant in such a case can re- Thornton & Co.; and he brought and paid cover damages only for the diminished value into court the sum of $140.35, together with of his interest in the land, and not for the the accrued cost of $2.90; and asked the diminished value of the land itself. Railroad court to pay that sum to the defendant in erCo. v. Johnson, 38 Kan. 142, 16 Pac. Rep. ror, Fitzhugh, if the same was legally due to 125, and the cases above cited. The claim- him. He stated in his pleading that he did ant's interest in the land may under some not desire to contest with Fitzhugh the validcircumstances be worth as much as the land ity of the indebtedness for the $140, nor reitself, while under other circumstances it may quire him to obtain proof that he was the asbe worth scarcely anything; and the claim- signor and owner of the account, but that he ant may under some circumstances be en- tendered that sum, with the accrued costs, titled to recover for the diminished value of and simply asked the court to protect him so his interest in the land an amount as great as that he should not be required to pay it a though he had a full and complete title to the second time. By agreement of the parties, land, while under other circumstances he the only question submitted to the jury was may not be entitled to any considerable whether Heithecker owed Fitzhugh the sum amount. All the facts with regard to the of $292.40; and, as to the $140 claim, it was plaintiff's interest in the land, the time he agreed that the court should determine from has occupied it, the work done upon it, etc., the evidence to whom that amount was due; as well as with respect to the injuries done and the court, after hearing the evidence, to the land by the railroad company, should determined that it was justly due to the debe permitted to go to the jury, and then the fendant in error. When judgment was renjury should be permitted to assess the plain-dered in favor of Fitzhugh, an application tiff's damages from a consideration of all was made in behalf of the creditors of Thornthese facts. The judgment of the court be-ton & Co. to file an interplea, claiming a low will be reversed, and cause remanded for lien upon the sum of $140 by virtue of gara new trial. All the justices concurring. nishment proceedings; but the court deter

Judge.

Shepard, Grove & Shepard, for plaintiffs in error. Sam S. Sisson and J. J. Merrick, for defendants in error.

mined that the application came too late, and Commissioners' decision. Error from disproperly denied it. Although an exception | trict court, Harper county; J. T. HERRICK, was taken to this ruling by counsel for the creditors of Thornton & Co., they are not now complaining. The jury found upon the issues submitted to it that Heithecker was owing upon the notes left for collection the sum of $292.40, and to this amount the court HOLT, C. The defendants in error, as added the further sum of $140, about which plaintiffs, filed their petition in the Harper there was no controversy between the par- district court, in which they set forth that ties to this action, and entered judgment for they were partners, negotiating sales of real both as an entirety. The fact that a portion estate and stock ranches in Kansas, and of of the judgment was conceded to be correct stock ranches in the Indian Territory; that was not brought to the attention of this court in August, 1883, they entered into a conat the first hearing, and hence an unquali-tract with the defendants, as Hammers, fied reversal was ordered. That part of the Forbes & Co., for the sale of their ranch in judgment admitted by Heithecker to be due, the Indian Territory, or an undivided onewhich the court found rightfully belonged to half thereof; that by its terms they were Fitzhugh, and of which finding no complaint either to sell or to find a purchaser; that for is made, should stand as it was rendered: their services in selling or procuring a purand to that extent the judgment heretofore chaser, Hammers, Forbes & Co. agreed to given will be modified. The defendant in pay them 5 per cent. of the entire sum for error further claims that the costs in this which said ranch or the undivided one-half court should be divided. Ordinarily, where should be sold; that they procured J. McEla judgment is reversed in part and affirmed wain and V. L. Lewis as purchasers; and in part, the costs are equally divided between they ask judgment for $2,025, being 5 per the parties. In the present case, however, cent. of the amount for which the undivided we think the plaintiff in error is entitled to one-half of the ranch was sold. The defendrecover all of his costs. He only complained ants answer by a general denial, which is of the rulings made with respect to the mat- sworn to by one of the defendants; and also ter which was in dispute; and upon these that plaintiffs had released the said defendthe order of reversal is based. He therefore ants from all liability of the claim set forth obtains all he asks, and ought not to be taxed in plaintiffs' petition. The action was tried with costs because the judgment included an by the court without a jury, and the plaintiffs amount which was not in controversy. It is introduced testimony tending to show that true the whole judgment was brought up on they had entered into such a contract with the record by him, but it was entered by the the defendants as set forth in their petition, district court as an entirety, and he could and had secured a sale of an undivided onenot do otherwise. The points which he half of their ranch by introducing and showmade in his proceeding in error were sus- ing it to McElwain & Lewis, and that they tained, and the judgment as entered held to had paid therefor the sum of $40,500. The be erroneous; and, as he obtained all that he defendants introduced testimony tending to sought by the proceeding, there should be no show that the contract was not made by the division of costs. Judgment should be en- firm, but by one member thereof, who did tered in the district court against Heithecker, not have authority to bind the firm, and that and in favor of Fitzhugh, for $140, and the the plaintiffs had released the defendants interest thereon; and only to this extent will from any liability for services performed. the former order of reversal be modified. All There were no allegations, nor any attempt the justices concurring. to show the value of the services rendered by plaintiffs. The defendants stated that they sold the ranch for $37,000, instead of $40,500. The difference between the two amounts presumably was on account of the number and value of certain cattle included in the trade as a part of the ranch. The court rendered judgment for $798.17.

(42 Kan. 32)

HAMMERS et al. v. MERRICK et al. (Supreme Court of Kansas. June 7, 1889.)

JUDGMENT-SETTING ASIDE.

We have searched the record to find, either 1. Where a judgment cannot be justified upon in the pleadings or the evidence, an allegaany hypothesis presented by the pleadings or evi-tion or testimony upon which we could gusdence it ought to be set aside. 2. In an action for the commission for a sale of tain the judgment, but have been unable to a ranch under a contract, where the only defenses were-First, that there was no such contract made; second, that the defendants had by agree. ment been relieved from all liability; and upon the trial the evidence was limited strictly to the issues, and there was no allegation in the pleadings, nor any evidence offered of the value of the services performed by plaintiffs,-a judgment for less than half of the contract for commission was

erroneous.

(Syllabus by Holt, C.)

find anything to support it. From both the pleadings and the evidence in the case, as presented to us, there should have been a judgment for defendants for costs, or in favor of plaintiffs for 5 per cent. of $37,000 or $40,500. There was no testimony to sustain the judgment rendered, and no attempt to establish the value of the services performed as a basis for a judgment. The plaintiffs relied

"First. That on the 15th day of August, 1885, articles of copartnership were entered into by and between the plaintiff and defendants, as shown by Exhibit A, offered in evi

entirely upon what they claimed to be the contract and their services under it; and the defendants, that the contract of plaintiffs with Forbes was entirely unauthorized by the firm; and further, that plaintiffs had re-dence, said exhibit being in words and figures lieved them of all liability for anything they may have done in procuring the sale of the ranch.

Under the issues in this case, and the testimony introduced, there is no foundation for the judgment rendered. We recommend that it be reversed

as follows: This agreement, made and entered into this the 15th day of August, 1885, by and between Henry J. O'Brien and Edward H. Hudson, witnesseth, that the said parties have this day entered into a copartnership for the purpose of conducting a farming and stock-raising business, upon the following terms and agreements. (1) The said

PER CURIAM. It is so ordered; all the copartnership to last for the term of twenty justices concurring.

(42 Kan. 49)

O'BRIEN et al. v. SMITH. (Supreme Court of Kansas. June 7, 1889.)

PARTNERSHIP-ACCOUNTING.

years from this date, unless sooner dissolved by the mutual consent of the parties hereto, or by the death of either. (2) The profits of said business, after deducting the necessary expenses, are to be equally and fairly divided between the parties hereto, one-half to each. (3) And upon final dissolution of said partWhere one of the members of a previously ex- nership at the expiration of said term of isting copartnership firm was the general manager thereof, and was to receive for his services years, or sooner, by agreement, then all "one-third of all profits arising from the business the profits arising from said business, includafter deducting necessary expenses," he cannot, ing the purchase price of lands, stock, etc., after the dissolution of the copartnership, but be- is to be divided equally, one-half to each; fore the profits or losses are ascertained, maintain an action against the other members of the firm said profits to be computed on the value of for the value of his services, nor for compensa said lands, stock, etc., after the said Henry tion, except in connection with some kind of pro-J O'Brien and Edward H. Hudson have been ceeding by which a full accounting, as between the partners, and of all the partnership affairs, can be had, although the partnership may have been wrongfully dissolved by the other members

of the firm.

(Syllabus by the Court.)

repaid the full amount of the capital invested by them. (4) In the event of any loss in said business, then it is understood and agreed that said loss shall be borne equally by the parties hereto, including any loss that

Error from district court, Elk county; L. may accrue from the purchase of lands, stock, SCOTT, Judge pro tem.

etc., as mentioned in article three, (3.) (5) This was an action brought in the district The said Henry J. O'Brien and Edward H. court of Elk county by B. C. Smith against Hudson agree to pay to Benj. C. Smith oneH. J. O'Brien and E. H. Hudson, to recover third of all profits arising from the business, $1,126.50 for personal services and for the after deducting necessary expenses, as his use of a horse and wagon. The defendants salary as manager. (6) The said Benj. C. answered, setting forth-First. A general Smith agrees to give his whole time and atdenial. Second. That all the services, etc., tention to said business. (7) No live-stock set forth in the plaintiff's petition were fur- of any description is to be sold or taken from nished to all the parties jointly, the plaintiff the ranch without the consent of the said and the defendants, as a copartnership, as Henry J O'Brien and Edward H. Hudson. follows: That on August 15, 1885, the plain- In witness whereof the said parties have tiff and the defendants entered into a copart-hereunto set their hands and seals this the nership for the purpose of conducting a farm- day and year first above written. H. J. ing and stock-raising business; that the de- O'BRIEN. [Seal.] E. H. HUDSON. [Seal.] fendants furnished all the capital, to-wit, a farm and $5,720.33 in cash and personal property, and the plaintiff was to furnish all the labor and to take charge of and conduct the entire business, as the general manager thereof, and that his only compensation therefor was to be one-third of the net profits arising out of the business; that the plaintiff took charge of the business and conducted the same up to October 21, 1886, and that he so badly mismanaged the same that there was a net loss of $1,080.71,-and the defendants ask for a judgment against the plaintiff for that amount. The plaintiff replied to this answer by filing a general denial. The case was tried before the court without a jury, a pro tem. judge presiding, and the court made the following special findings of fact and conclusions of law, to-wit:

B. C. SMITII. [Seal.]' That in pursuance to said articles of agreement the plaintiff took charge and managed the affairs, as manager of the business of the defendant's farm in Elk county, Kansas, from the 15th day of August, 1885, to the 20th day of October, 1886. That during the time that plaintiff had charge of the farm, and business connected therewith, of the defendants, as above found, he managed and conducted the business in a reasonable, careful, and prudent manner.

"Second. That on the 20th day of October, 1886, the defendants, without good or sufficient cause, discharged the plaintiff as manager of said farm of defendants and business connected therewith.

"Third. That, during the time plaintiff was engaged as manager of defendants' farm,

that he used a horse of his own in and about the work on said farm and that the value of the same was $2.00 per month, to-wit, $28.00.

of action; but their claim was only for damages alleged to have resulted from the mismanagement of the plaintiff of the partnership affairs, and they did not ask for any accounting. But, returning to the plaintiff's

"Fourth. That the value of plaintiff's services as manager was of the value of fifty dol-case, can he maintain his action? We think lars per month, exclusive of board.

"Fifth. That there was in the hands of plaintiff moneys belonging to the defendants, at the time of his discharge, in the sum of $59.35, that should be deducted from the value of plaintiff's services; and that plaintiff received goods of the value of $28.00, which should be deducted from the value of plaintiff's services.

not. The services rendered by him were rendered to and for the partnership including himself as well as the defendants, and not for the defendants at all, as individuals. And the services were to be paid for, not by the defendants, but by the partnership, and they were to be paid for out of the partnership funds, and only out of the profits of the business, to wit: One-third of all profits "And from the facts found the court makes arising from the business after deducting the following conclusions of law: That the necessary expenses." What the compensaplaintiff is entitled to recover the value of tion for his services is or should be in dollars his services, and that of his horse, while em- and cents no one can tell until there shall be ployed on the farm of the defendants as gen- a final accounting. If there were no profits, eral manager of the business of the defend- he is not entitled to anything for his servants, after deducting the moneys in the plain-ices; and whether there were any profits or tiff's hands at the time he was discharged by not has not been shown in this case. the defendants, and the value of the goods and moneys furnished the plaintiff by the defendants for his individual use."

The court also, in addition to the foregoing findings and conclusions, and by way of amendment thereto, found as follows: "That said defendants, H. J. O'Brien and E. H. Hudson, were indebted to the plaintiff, B. C. Smith, at the commencement of this suit, in the sum of $648.65."

Upon these findings and conclusions the court rendered judgment in favor of the plaintiff, and against the defendants, for the sum of $648.65 and costs, and to reverse this judgment the defendants, as plaintiffs in error, bring the case to this court.

J. A. McHenry, for plaintiffs in error. Nichols & Jackson and H. S. Douthitt, for defendant in error.

The

defendants claim that there were none, and that there was a great loss. But, even if there were profits, still, as they have never been ascertained, and as the plaintiff himself was a member of the partnership firm, he cannot maintain any action for the value of his services, nor for compensation, except in connection with some kind of proceeding by which a full accounting, as between the partners and of all the partnership affairs, can be had. This has not been done in the present case, nor has it been asked for by either the plaintiff or the defendants. The judg ment of the court below will be reversed, and the cause remanded for further proceedings. All the justices concurring.

(41 Kan. 747)

SOUTHERN KAN. RY. Co. v. CROCKER. (Supreme Court of Kansus. June 7, 1889.) INJURY TO SERVANT-DEFECTIVE TOOLS. While it is the fault of the servant, if he undertakes without sufficient skill, or applies less than the occasion requires, (Railway Co. v. Estes, 37 Kan. 715, 16 Pac. Rep. 131,) a section-man who which he is to work, and is promised a new and complains of the bad condition of the tool with good one, and is told to work with the defective tool until the others arrive, and, relying on such a does so, and is injured by the use of the defective promise, and there being no immediate danger, tool, is entitled to recover for the damages resulting. His solicitation of employment in a certain line of work is not an assertion that he can perform the labor with defective tools. (Syllabus by Simpson, C.)

VALENTINE, J., (after stating the facts as above.) B. C. Smith, who was the plaintiff below and is now the defendant in error, was a member of a copartnership firm of which H. J. O'Brien and E. H. Hudson, the defendants below and the plaintiffs in error, were the other members. Smith, the first-mentioned partner, sued the other two partners for services performed by him, not for the defendants, but for the partnership. Can he maintain the action? It appears from the findings of the court below that the defendants wrongfully dissolved the copartnership and wrongfully discharged Smith as manager of the partnership affairs; but Smith does not sue for these wrongs. Whether any dam-trict court, Allen county; L. STILLWELL, ages resulted to Smith or not from these wrongs is not shown, nor were the same in issue under the pleadings in the case. plaintiff simply sued for his services, rendered by him to the partnership before its dissolution and before his discharge, and for SIMPSON, C. Suit to recover damages for nothing else. There is no pretense that this personal injuries received by the defendant action was for an accounting. The defend- in error in the line of his employment as a ants, besides interposing their general denial, section hand of the Southern Kansas Railalso set up in their answer an affirmative cause road Company, commenced on the 12th day

v.21p.no.12-50

Commissioners' decision. Error from dis

Judge.

Geo. R. Peck, A. A Hurd, and A. B. Clark, The for plaintiff in error. Knight & Foust, for defendant in error.