If one of several defendants voluntarily elects to renounce his privilege of demanding affirmative relief upon a claim existing in his favor against the plaintiff, his right to make such renunciation can hardly be questioned, and we discover no reason why, having chosen that course, he should not be permitted, upon the grounds indicated in the foregoing quotation, to interpose his set-off as a mere defense for the benefit of himself and his codefendants; the objection of a want of mutuality being thereby met.

In Austin v. Feland, 8 Mo. 309, the action was brought against the three makers of a note, by one who had obtained it from the payee by assignment. Two of the defendants were permitted to plead as set-off's indebtedness due them individually from the assignor -a situation in which they could, of course, have no affirmative relief in that action. No comment was made upon this feature of the matter, and the opinion perhaps indicates that the practice would have been approved even had affirmative relief been obtainable and asked for. The court, however, used this language, which we regard as countenancing the distinction under discussion:

"A fourth objection is that the defendants being sued jointly, they were permitted to set off demands due them separately, from the assignor of the plaintiff. *If there is any objection to this, it must be technical. It is because it is a matter not between the plaintiff and all the defendants. If a plaintiff sues two in debt, one of them may plead payment, or a tender with his own money, and thereby defeat a recovery. Why, then, if he will take his own debt, and set it off against the plaintiff, and thus defeat his action, may it not be done? There is no solid distinction between the case of a payment with his own money by one defendant, and pleading a set-off due him alone." Page 312.

On Motion for a Rehearing. In a motion for a rehearing stress is laid upon the fact that at common law the remedy of recoupment was allowed only with respect to matters connected with the transaction out of which the plaintiff's cause of action arose. The decision was not based upon the theory that the cross-demand of the defendant Baker could be litigated in this action, because it fell within the definition of common-law recoupment. The reference to recoupment was for the purpose of illustrating that, where no affirmative relief is sought under it, a crossdemand in favor of one of several defendants is not rendered unavailable as a defense on the ground of want of mutuality.

The motion for a rehearing is denied.
All the Justices concurring.

(106 Kan. 717)

APPLE v. SMITH. (No. 22362.) (Supreme Court of Kansas. May 8, 1920.)

(Syllabus by the Court.)

1. Equity 36-Court in partnership accounting may make orders affecting real estate in another state.

A court of equity which has obtained jurisdiction of the parties in a proceeding to dissolve a partnership and make an accounting of partnership affairs may make an order that consewhere it is enforceable against the person of quentially affects real estate in another state, the party within its jurisdiction, and to that end may compel a partner holding partnership property in his own name in another state to convey it to the firm. 2. Partnership

330-Personal judgment at end of accounting may be rendered, though further accounting necessary.

At the end of an accounting, a personal judgment may be rendered, although the exigencies of the partnership business will require a before a sale of the partnership business and further accounting of profits that will accrue

property can be made. 3. Partnership 325(1)—In winding up partnership, court may direct conveyance of land in another state without receiver.

and in making a disposition of partnership assets, but it is the better practice to require a partner holding partnership property in his own name in another state to transfer the same directly to the partnership instead of to the receiver.

The judgment is affirmed. All the Justices concurring.

4. Partnership 319-Where party fails to convey land in other state as decreed, court may order accounting.

In case a defendant partner refuses to assign and transfer property in another state in accordance with the decree of the court, it is

(Additional Syllabus by Editoṛial Staff.) 5. Account -"Accounting" imports an ad

justment of accounts.

An accounting imports an adjustment of the accounts of the parties and a rendition of a judgment for the balance ascertained to be due. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accounting.]

Appeal from District Court, Cherokee County.

"Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal title to land in another state, it may render a judgment to impress a trust as to such land, and order the trustees to execute a conveyance thereof; and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction." (Syl. 1.)

In the early case of Penn v. Lord Baltimore, 1 Vesey, 444, a court of chancery of England had before it the enforcement of a contract relating to land in America, and

A. S. Thompson, of Miami, Okl., J. S. Dean, of Topeka, H. W. Currey, of Joplin, Mo., S. C. Westcott, of Galena, and Ferry & Doran, of Topeka, for appellant.

Edward E. Sapp and E. B. Morgan, both

of Galena, for appellee.

JOHNSTON, C. J. [1] The judgment in this case was affirmed on December 6, 1919, 105 Kan. 732, 185 Pac. 903, and on the 11th day of February, 1920, defendant's motion for a rehearing was denied. Upon application, permission to file a second motion for rehearing on certain propositions was allowed. The existence of a partnership between the parties and the extent of the business and property included in the partnership were fully considered and determined in the first hearing, and require no further attention. In his second motion for rehearing defendant urges again that the district court was without jurisdiction to adjudicate the title to leasehold interests in mines situated in Oklahoma. The answer to this proposition is that the action we have is one in personam. It is contended that a court of equity never decrees the performance of something which it cannot compel, but the district court entered a judgment which it may enforce as against the person of the defendant. The judgment rendered acts upon the defendant, and only consequentially upon real estate in another state. Having obtained jurisdiction of the defendant, the court had authority to determine the partnership relation between him and the plaintiff, and finding that such a relation existed, it could determine their partnership rights in property in and out of the state, and make a decree enforceable against the defendant, who is within the jurisdiction of the court. Authorities to that effect were cited in the original opinion, and many others might have been cited. In Meador v. Manlove, 97 Kan.

conceding that it could not be enforced in rem, but holding that the decree, being one in personam, could be enforced in all cases where the party is within the jurisdiction of the court. In Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 15

How. (U. S.) 233, 14 L. Ed. 674, the court

cited Judge Story's work on the Conflict of Laws, and approved the rule stated by him that:

“A court of chancery, 'having authority to act in personam, will act indirectly, and under qualifications, upon real estate situate in a foreign country by reason of this authority over the person, and it will compel him to give effect to its decree, by a conveyance, release, or otherwise, respecting such property.'" 15 How. 243, 14 L. Ed. 674.

In Massie v. Watts, 6 Cranch (U. S.) 148, 3 L. Ed. 181, Chief Justice Marshall, after citing a number of the authorities, said:

"Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." 6 Cranch, p. 160, 3 L. Ed. 181.

In another case the same court has said: "A court of equity, having authority to act upon the person, may indirectly act upon real estate in another state, through the instrumentality of this authority over the person. Whatever it may do through the party it may do to give effect to its decree respecting property, whether it goes to the entire disposition of it or only to effect it with liens or burdens." Fall 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853, v. Eastin, 215 U. S. 1, 30 Sup. Ct. 3, 54 L. Ed. p. 8.

[2, 5] There is a further contention that the court erred in the rendition of a personal judgment against the defendant for the amount found to be due to plaintiff on the accounting that was had. The claim is that the judgment was prematurely rendered, since there were assets of the firm undisposed of. This question was not brought to the attention of the court on the original hearing, but, assuming that it is raised in the record, we find no good ground for the complaint. The defendant joined with the plaintiff in an agreement for the appointment of a referee, who was to find, first, whether or not a partnership existed, and, if an affirmative finding was made, an accounting was to be taken by the referee, but that, if a contrary finding was made, then no accounting was to be taken. The accounting having been taken by agreement of both parties, defendant is hardly in a position at this time to challenge the propriety of taking an accounting, or the power of a court to render a judgment upon the accounting. An accounting imports an adjustment of the accounts of the parties and the rendition of a judgment for the balance ascertained to be due. Apart from this consideration, this was an equitable action, and the court exercising equitable jurisdiction had power to apply any remedy that was equitable and appropriate. The accounting was taken up to the time the report was made. The mines owned by the partners were in operation, and in the possession of the defendant. He was wrongfully excluding the plaintiff from the possession of the property and appropriating the products of the mines, one-half of which belonged to the plaintiff. It was necessary to obtain action of the court upon the report of the referee, and an appeal was taken from the judgment rendered on the report, which has been pending for months. When the appeal is finally determined the proceeding will still be before the district court for any action that equity may require. Α further accounting will be necessary in order to ascertain the amount due to the plaintiff for the product of the mines and the profits of the business belonging to the firm from the time the report was made until the partnership affairs are finally closed. There is no lack of power in the court to provide for periodical accountings and to render personal judgment on each accounting that is made. The court will have the opportunity in the further accounting and in the final disposition of the case to fully protect the rights of each party, and, after making proper allowances, to make a proper divi

[3] The remaining question raised on this motion for a rehearing is that there was error in that part of the judgment appointing a receiver and requiring the plaintiff and defendant to assign to the receiver the leases held in the name of each partner. The receiver was directed to sell the property and divide the proceeds of it equally between the partners, after first deducting from the share of the defendant any sum that remained due on the personal judgment then rendered. It is not an uncommon practice in a court of equity to appoint a receiver in winding up a partnership, and especially where one partner wrongfully excludes another from participating in the possession and control, as well as the benefits, of the business or property of the firm. Parnell v. Thompson, 81 Kan. 119-137, 105 Pac. 502, 33 L. R. A. (N. S.) 658; 20 R. C. L. 962. In view, however, of the character of the litigation and the peculiar circumstances of the case, we think a better practice, and a more equitable and appropriate judgment will be to require that the parties shall each assign and transfer directly to the firm the leases mentioned, and all other partnership property held in the name of each individual partner. When that is done the court can make such further orders and judgment for the disposition of the partnership property and the division of the proceeds as equity and the circumstances may warrant.

Under the facts found in the case relating to the wrongs practiced by the defendant in denying the plaintiff his rights in the partnership property and in misappropriating plaintiff's share of the output of the mines and the profits of the partnership business in another state, the court is warranted in having recourse to any equitable and effective remedy. Very broad powers are vested in a court of equity, and they are generally held to be coextensive with the rights of persons to relief. In 1 Pomeroy's Equity Jurisprudence, § 170, it is said:

As the

"It is absolutely impossible to enumerate all the special kinds of relief which may be granted, or to place any bounds to the power of the courts in shaping the relief in accordance with the circumstances of particular cases. nature and incidents of proprietary rights and interests, and of the circumstances attending them, and of the relations arising from them, are practically unlimited, so are the kinds and forms of specific relief applicable to these circumstances and relations."

[4] It is within the power of the court to order and adjudge that, if either party does not assign and transfer the interests and property ordered to be transferred to the firm within a reasonable time to be fixed by the court, a further accounting be had, not

only of the products and profits of the mines and other property of the firm withheld from a copartner, but also for the value of the share of the partnership property which either party fails to assign and transfer in compliance with the decree of the court. A personal judgment may be rendered on that accounting for the value of the property which is not transferred as the decree directs, as well as for a proper share of any profits or moneys derived from the partnership property since the last accounting and judgment was made and rendered. A refusal to make a transfer of property of the firm held by the defendant in accordance with the decree of the court is in a sense a conversion of the share of the other partner, but in any event a court of equity has power to make a complete settlement of the partnership affairs, and if the defendant does not comply with the decree of the court to assign and transfer the leases and other partnership property held in his own name, the court, having the defendant before it, has authority, after an accounting of

values, to render a personal judgment for the value of the property not so transferred, property which the defendant has in effect wrongfully converted and appropriated to his own use.

The judgment will be modified so as to require the partners to transfer the property held in their individual names to the firm of Apple & Smith, and to make such further orders for the enforcement of the judgment as will be in accordance with the views expressed herein.

So modified, the judgment is affirmed.
All the Justices concurring.

(106 Kan. 775)

Appeal from District Court, Sedgwick County.

Action by Fannie Howard against the Marshall Motor Company and another for personal injuries. Judgment for plaintiff, and defendants appeal. Affirmed.

Stanley, Stanley & Hegler and George Siefkin, all of Wichita, for appellants.

Robert C. Foulston, of Wichita, and George H. Beach, of Lawrence, for appellee.

MASON, J. Lemuel Miller, a porter in the employ of two motor companies at their garage and sales room, was driving an automobile along the street at a speed estimated at from 35 to 50 miles an hour, when he ran into another car on a cross street with such violence as to drive it upon the sidewalk, injuring Fannie Howard, who was standing there. She brought action against the companies and obtained a judgment against them from which they appeal.

1. They contend that the evidence did not warrant a finding that at the time of the injury Miller was engaged in the service of his employers, but, on the other hand, showed conclusively that he was driving for his own pleasure. Miller as a witness for the plaintiff gave evidence tending to show these facts:

He was called the head porter. His duties included washing and cleaning cars, delivering them, and demonstrating cars-doing the driving. When the general manager of the companies wanted a man for work around the garage, Miller would bring one to him. On the day of the accident Miller backed a car out of the garage to let another one through, and while he was still in the car (which belonged to a customer) the manager told him to go and find a suitable porter and put him to work washing a car which was

(No. 22643.)

(Supreme Court of Kansas. May 8, 1920.)

(Syllabus by the Court.)

1. Master and servant 302 (1)—Chauffeur's negligence held imputable to employer. Where an employé is sent in an automobile upon an errand and during the return trip by a direct route inflicts injury in consequence of his reckless driving, the liability of his employer to the injured person is not affected by the fact that he had taken a friend in the car with him and was speeding for their common enjoy

ment.

2. Appeal and error 1024 (3)-Decision as to good faith of questions asked juror on his voir dire final.

The decision of the trial court as to the good faith of questions asked of a juror on his voir dire held to be final.

the car he drove several blocks to a barber shop, where he thought he could find two men that he had in view for the purpose.

If the

for the consequences of his negligent driving. The defendants introduced evidence, which the jury by their special findings showed that they believed, that as Miller turned his car near the barber shop he saw a friend who, at his invitation to go on a spin with him, got into the car and accompanied him on the remainder of the trip; the accident occurring on a direct route to the defendant's place of business.

[1] In returning with the car to the garage, Miller was as much in his employer's service as while he was on the outbound part of the journey. Thompson v. Machinery Co., 96 Kan. 259, 150 Pac. 587. And the fact that he took a friend on board to enjoy with him the pleasure of a run in violation of the speed limit does not affect the legal aspect of the matter. He was, of course, disregarding his duty to his employer in the way he managed the car; but his misconduct was in doing in a wrongful manner what he was employed to do properly-he was acting within the scope of his employment. The case is well within the rule illustrated by Roberts v. Kinley, 89 Kan. 885, 132 Pac. 1180, 45 L. R. A. (N. S.) 938, and the facts are obviously quite different from those on which the decision was based in Toad vine v. Sinnett, 104 Kan. 111, 178 Pac. 401. If there had been a deviation from the direct line of travel on a return to the garage, the defendants' liability might have been affected according to the particular circumstances (note, 17 N. C. C. A. 659; 4 N. C. C. A. 27); but under the evidence and the findings there was none. Miller's asking and allowing a friend to ride with him, such conduct not having been forbidden and not having been the cause of the accident, could obviously not affect the liability of the defendants. Even where an agent sent in an automobile on an errand for his principal takes in a guest for whose accommodation he deviates from the direct route, it has been held that his employer may be liable for the results of his negligent driving. Note, 17 N. C. C. A. 663-665.

[2] 2. The plaintiff's attorney was permitted over objection to ask a juror on his voir dire whether he was a stockholder in any corporation and whether he was a policy holder in any mutual insurance company which had for its purpose the insuring of persons against actions for damages arising by virtue of accident. The defendants complain of this on the ground that the questions were not asked for the purpose of developing any information concerning the juror that might tend to suggest a bias on his part, but solely to lead the jury to infer that if a judgment were rendered for the plaintiff the loss would ultimately fall, not upon the defendants, but upon some insurance company. The trial court must be deemed to have decided that the questions were asked in good

faith, and as its opportunity for forming a judgment on that matter was better than ours its determination must control; there being nothing in the record that compels a contrary conclusion. Swift v. Platte, 68 Kan. 10, 72 Pac. 271, 74 Pac. 635. The judgment is affirmed.

JOHNSTON, C. J., and BURCH, PORTER, MARSHALL, and DAWSON, JJ., concurring.

WEST, J. (specially concurring). While I agree with the foregoing, I am unable to see why the courts, in respect to a defendant's indemnity, should ever feel called upon to "walk softly like the gods whose feet are shod with wool," or why any impenetrable obscuration should envelope so simple and so common a situation.

Why should not the jury know who the real party in interest is, the same as they may know who is putting up the security for costs or who is paying the expenses of a witness?

To invest the fact of the defendant's insurance with the sanctimonious camouflage of a manufactured reverence is to my mind the superlative quintessence of judicial ineptitude.

I.

(106 Kan. 808)

MADDOCK v. RIGGS. (No. 22672.) (Supreme Court of Kansas. May 8, 1920.)

(Syllabus by the Court.)

Insurance 695-One failing in his undertaking to remit dues was liable to beneficiary for resulting injury.

By a series of transactions covering several years, the appellant accepted from the holder of a fraternal insurance policy his monthly dues and undertook to remit the same to the fraternal association, but failed to remit the dues for one month by which the policy lapsed and the assured was suspended. Upon the death of the named in the policy, brought suit against the assured, the appellee, who was the beneficiary appellant to recover the amount that would have been due on the policy if it had not lapsed. Held, that appellant, having entered upon the performance of the duty to remit the monthly assessments, became liable for any injury resulting from his misfeasance.

2. Insurance 695-Beneficiary of insured may sue for resulting injury from defendant's failure to remit dues.

Upon the facts stated in the preceding para

graph, the rule is applied that a third party not privy to a contract nor privy to the consideration thereof may sue to enforce any part of it made for his especial benefit and interest; that the promise is to be deemed made to the plaintiff if adopted by him, though he was not a