turing his said stock, and defendant's said stock has during all said time grazed upon, roamed over, and dispastured the native grasses growing upon said three sections of said plaintiff, for all said time over two years last past to the great loss and injury of the plaintiff and to his pecuniary damage. That the fair and reasonable value of said use of said plaintiff's lands so used and possessed by said defendant and his live stock is the sum of $40 per section per year, and for the use of said three sections for a period of two years the total sum of $240, no part of which has been paid, though justly due and owing said plaintiff in manner and form as alleged in said petition, and this amendment thereto. And plaintiff demands judgment against said defendant for said sum of $240, with interest and costs of suit. Plaintiff therefore demands judgment against the said defendant for the said sum of $150, with 6 per cent. interest thereon from the 18th of October, 1903, besides costs of suit."

As against an objection of this kind the pleading must be liberally construed in favor of the pleader: Laithe v. McDonald, 7 Kan. 254; Mitchell v. Milhoan, 11 Kan. 617; Barkley v. State, 15 Kan. 107; Union Street Ry. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Weber v. A., T. & S. F. R. R. Co., 54 Kan. 389, 38 Pac. 569. The petition so construed shows that the defendant had the possession of the plaintiff's lands and enjoyed the use thereof for some years. No adequate reason appears in the petition why the defendant should not pay therefor. When a person fences in the lands of another and uses them for pasturing purposes, the same as if he were the owner. payment ought to be made therefor or some adequate reason given for not doing so. defendant may have a good defense, but it does not appear in the petition.

The

The judgment of the district court is reversed. It is directed that the demurrer be overuled, and that such further proceedings be had as may be proper. All the Justices concurring.

(74 Kan. 325) AMERICAN SURETY CO. OF NEW YORK v. ASHMORE et al.

(Supreme Court of Kansas. July 6, 1906.) 1. APPEAL AND ERROR-REVIEW-DENIAL OF NEW TRIAL.

Proceedings will lie to this court to set aside an order of the trial court overruling a motion for a new trial notwithstanding no judgment has been rendered in the action.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 746, 747.] 2. TRIAL-INSTRUCTIONS EVIDENCE.

It is also held that, because of the absence of evidence, it was error for the trial court to give the instruction quoted in the opinion. (Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by the American Surety Company of New York against Samuel Ashmore and

others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

This action was commenced by the plaintiff in error to recover on an indemnity bond executed by the defendants in error to the plaintiff in error. It appears that there was a litigation pending in the district court of Grayson county, Texas., involving the settlement of a large estate; that there were persons living in Kansas who claimed to be interested, and who wished to intervene in that action to protect their interests. These persons were required to give a bond for costs before they were permitted to intervene. The American Surety Company of New York made this cost bond for them. However, before this company would make the bond it required the contemplated litigants to give an indemnity bond to protect it from loss. In compliance with this requirement the defendants in error executed to it the bond, sued on in this action, to indemnify the company. The interveners were adjudged to pay certain costs. The clerk of the Grayson county court sent to the surety company a cost bill for $194.29, which was paid by the defendants in error, and was supposed by them and by Mr. H. E. Valentine, the local agent of the surety company in Topeka, to include all the costs that the interveners would be required to pay. Subsequently, however, another bill for costs amounting to $200 was presented to the surety company which it was compelled to pay, which upon demand defendants refused to pay to the company, and this action was brought upon the indemnity bond to recover this item. The nature of the action in Texas was such that the trial court was required to appoint a lawyer to represent what are there called "unknown heirs." That was done, and it was the fee of $200 of such appointee, taxed as costs in the case, which the surety company paid and which it now seeks to recover from defendants in error. The pleadings of the defendants, in addition to a general denial alleged that when they paid to Mr. H. E. Valentine the item of $194.29 costs he represented that this would release them from all liability on the bond; that the bond should be canceled; that this was everything in the nature of costs chargeable to them; and that there could be no further liability on the bond; that relying upon these representations they took no steps to protect themselves against the judgment for further costs and were not present in court when the judgment for the $200 was rendered against them; that had they not been relying upon the representations, statements and promises of Mr. Valentine, they would have appeared in the Texas court and defeated the recovery of the judgment. Some other matters were alleged in the answer which are unimportant. The jury returned a verdict for the defendants, Wellcome and Dunn. The plaintiff in error moved for a new trial, which was overruled. It is to reverse this

order overruling its motion for a new trial that it prosecutes error.

Valentine, Godard & Valentine, for plaintiff in error. Robert Herrick, for defendants

in error.

GREENE, J. (after stating the facts). The defendants in error challenge the jurisdiction of this court to inquire into the merits of this cause on the grounds that no judgment has been entered on the verdict against plaintiff in error. This contention cannot be sustained. Section 5019 of the General Statutes of 1901 provides that this court may reverse or vacate an order overruling a motion for a new trial. This may be done independently of the rendition of a judgment on the verdict. Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; Osborne, Ex'r, v. Young, 28 Kan. 769, 774; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476. A litigant may prosecute a proceeding in error to set aside an order refusing him a new trial, although the verdict and judgment are in his favor.

The principal error assigned is the giving of the following instruction: "If, then, you believe from the evidence in this case that such an indemnity agreement was executed by these defendants to the plaintiff company; and that after the termination of the suit in the Texas court, the plaintiff company took exclusive charge and control of the matter of the settlement of the costs of said litigation in the Texas court; that afterwards correspondence and communications were had between plaintiff company and these defendants with reference to these costs wherein plaintiff company called upon these defendants to pay a certain judgment for costs rendered in said court against plaintiff and that plaintiff company at the time represented to these defendants that said judgment comprised all the costs in said suit and that upon payment of said judgment for costs by these defendants to the plaintiff to be applied to the payment of said judgment for costs, plaintiff company would release and discharge these defendants from all further liability to the plaintiff company under and by reason of said indemnity agreement; and if you further believe from the evidence that payment was so made by these defendants Wellcome and Dunn to plaintiff company to be so applied, and that it was the understanding between the plaintiff company and these defendants at the time that said payment was made that it was considered and understood as a full and final settlement between plaintiff company and these defendants of any and all liability of these defendants to plaintiff under and by virtue of said indemnity agreement and that that was the understanding between the parties at the time said payment was made, and that said payment was so accepted by plaintiff company, then I instruct you that these defendants would not be liable to

this plaintiff for any additional costs subsequently paid by it to the Texas court."

This instruction should not have been given. There is no evidence to justify it. There is no evidence tending to show that the plaintiff represented to the defendants, as an inducement to them to pay the $194.29 costs that this was all of the costs, or that the plaintiff represented to them that upon the payment of the $194.29 costs it would release them from further liability to it, or that it had or would cancel the bond. All the evidence on this subject is contained in the letters which passed between H. E. Valentine and the defendants. This correspondence is as follows:

"Holton, Kans. May 5, 1903.

"H. E. Valentine, Res. Asst. Secy., Topeka, Kansas. Dear Sir: Yours of the 4th is at hand. Herewith find draft $97.14, in full payment of my share of your claim for costs in case of Sarah A. Dove et al. v. H. P. Howard et al., in district court of Grayson county, Texas. Please collect the other half from Mr. Wm. Wellcome as per your agreement, and send me a receipt releasing me from all liability on the bond. "Yours truly, Alex Dunn, Jr." "C-American Surety Co. of New York. "May 7, 1903.

"Alex Dunn, Jr., Holton, Kansas- Dear Sir: I am in receipt of your favor of the 5th inst. enclosing draft for $97.14 in payment of one-half of the amount which the surety company has been notified is due on the bond written in the case of Sarah A. Dove et al. v. H. P. Howard et al. in the district court of Grayson county, Texas. I have collected the same amount from Mr. William Wellcome, and will to-day forward the entire sum to Texas to pay the costs. I cannot send you a receipt releasing you from all liability on the bond. While I am very certain there will be nothing more taxed against the principals of the bond or the surety company in this case and that we are free from any further liability, yet should there be any further liability the surety company will have to look to you and Mr. Wellcome to indemnify it.

"Yours truly, H. E. Valentine,
"Res. Asst. Secy."

"Topeka, Kan., May 20, 1903. "Mr. Alex Dunn, Jr., Holton, KansasDear Sir: I herewith hand you copy of letter and receipt written by the clerk of the district court of Grayson county, Texas, to the Dallas, Texas, representative of the American Surety Company, which would indicate that everything is settled and there can be no further liability against you and Mr. Wellcome. The originals of these I send to the home office of our company so that the bond may be cancelled.

"Yours truly, H. E. Valentine,
"Resident Assistant Secy."

These letters show that Mr. Valentine not only refused to release the defendants from their liability on their bond, but plainly informed them that if further costs should be adjudged against the parties, the surety company would look to them for protection. In the absence of any evidence upon which this instruction can be based, it was prejudicial error to submit it to the jury.

For this reason the order of the trial court overruling plaintiff's motion for a new trial is set aside and the cause remanded, with instructions to grant the plaintiff a new trial. All the Justices concurring.

(74 Kan. 220)

BRUBAKER v. BRUBAKER et al. (Supreme Court of Kansas. July 6, 1906.) APPEAL AND ERROR-MOTION FOR NEW TRIAL -TIME OF FILING.

Where a case is tried without the intervention of a jury, and the court files findings of fact and conclusions of law which include a determination of the general issue, either party aggrieved by rulings made during the trial, in order to procure their review here, must file a motion for a new trial within three days from the time such findings and conclusions are made, irrespective of the time judgment is rendered.

[Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1740-1742.] (Syllabus by the Court.)

Error from District Court, Pottawatomie County; Robert C. Heizer, Judge.

Action by Andrew J. Brubaker against Melissa Brubaker and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Alvin R. Springer, for plaintiff in error. W. F. Challis, Crane & Woodburn Bros., and R. S. Hick, for defendants in error.

MASON, J. On December 24, 1901, a ceremony was performed purporting to unite in matrimony Andrew J. Brubaker and Melissa Van Aikin, who thereafter for some six months lived together as man and wife. No legal union in fact was accomplished, for the reason that the woman was already married. During their cohabitation Brubaker conveyed various tracts of real estate to Mrs. Van Aikin. In July, 1902, he brought an action against her and others claiming under her to set aside such conveyances, upon the ground that they were executed because he believed her to be his wife, and that such belief was occasioned by false and fraud- | ulent representations made by her that at the time of her union with him she was unmarried. The case was tried without a jury. The court found in substance that Brubaker had notice of the prior marriage, and was not the victim of false pretenses, and denied him relief. He prosecutes error.

Various assignments of error have been made relating to trial rulings. These cannot be considered for the reason that the motion for a new trial was not filed in proper time.

After the evidence was submitted the cause was held for some time under advisement and on June 1, 1904, the court announced and filed various findings of fact and conclusions of law which included in effect if not in express terms a statement that the plaintiff was not entitled to recover. On the same day the plaintiff filed motions to modify the findings and conclusions so that they should conform to his views of the evidence and law, and a motion for a judgment in his favor. At the next term of court, on September 6, 1904, these motions were overruled. The plaintiff then filed a motion for a new trial, the hearing of which was postponed. Judgment was at once rendered, however, for the defendants. The motion for a new trial was denied on September 15, 1904. The statutes (Gen. St. 1901, § 4756), reads: "The application for a new trial must be made at the term the verdict, report or decision is rendered; and except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented." The word "decision" as here used clearly refers to or at all events includes the announcement by the court of the determination of the issues submitted to it in a cause tried without a jury. 13 Cyc. 428, second paragraph of note 41, citing Indiana cases. and also Clement v. Hartzell, 60 Kan. 317, 56 Pac. 504; Jenkins v. Kirtley, 70 Kan. 801, 79 Pac. 671; Marshall v. Golden Fleece M. Co., 16 Nev. 156. 172; 5 Enc. of P. & P. 936. A decision in this case was made when the findings of fact and conclusions of law were filed. It was then incumbent upon the plaintiff if he was dissatisfied with the rulings made during the progress of the trial, to invite a re-examination of them by a motion filed within three days and at the same term of court. It was not necessary for him to wait until judgment was pronounced. He could even bring his case to this court before that was done. American Surety Co. v. Ashmore (decided at this session) 86 Pac. 453. The pendency of his motion for judgment did not affect the matter. City of Osborne v. Hamilton, 29 Kan. 1. His motions to correct the findings and conclusions may, perhaps, be regarded as motions for a new trial, but they preserve no question for review except as to the effect of the evidence. The plaintiff was not justified in withholding his motion for a new trial because he did not know just what judgment the court might finally render. The same situation arises whenever a jury returns a general verdict and special findings. If the losing party is dissatisfied with these he must challenge them at the time and in the manner pointed out by the statute. He may not wait until he sees how badly they hurt him before deciding whether he will attack them and the rule is the same when these determinations

are made by the court without the intervention of a jury.

The only question, therefore, presented by the record is whether there was evidence to sustain the findings and judgment. No purpose would be subserved by reviewing in detail the facts developed at the trial. It is sufficient to say that the testimony supports the findings, the findings support the conclusions, and all support the judgment, which is affirmed. All the Justices concurring.

(74 Kan. 304)

AVERY MFG. CO. v. LAMBERTSON. (Supreme Court of Kansas. July 6, 1906.) 1. TRIAL-EXCEPTIONS-SUFFICIENCY.

A general exception to a number of different rulings on a motion to reform a pleading is unavailing, unless all the rulings are erroeous as to the party who takes the exception. [Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1622.] 2. APPEAL-OBJECTIONS WAIVED.

Where the parties to an action contest a question of fact by examining and cross-examining witnesses with reference thereto without objection by either, although such fact is not at issue in the pleadings, neither party will be heard to say that a finding by the court as to such fact is without the issues in the case.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1137-1140.] 3. SAME.

In such case the parties by their conduct will be held to have broadened the issues made by the pleading and to have included the contested fact therein.

4. PLEADING-SCOPE OF ISSUES OF FACT-ISSUES ON GENERAL DENIAL.

Where a defendant in his answer pleads as a defense the making of a written contract between himself and the plaintiff, but specifies no consideration for such contract, the law imports a consideration therefor; and if this defense is only controverted in the reply by a general denial, the issue of no consideration is not raised. The want of consideration must be pleaded in the reply.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 1215.]

(Syllabus by the Court.)

Error from District Court, Ottawa County; R. R. Rees, Judge.

Action by the Avery Manufacturing Company against N. Lambertson. Judgment for defendant, and plaintiff brings error. Affirmed.

In 1901, the plaintiff in error, through the defendant in error, then its agent, sold a threshing outfit to one Cunningham for $2,295, and in settlement took a number of promissory notes executed by the purchaser and payable to it at different times. The payment of the notes was secured by a chattel.mortgage on the outfit, some growing wheat, and a number of horses and cattle. One of the notes, for $425, due October 1, 1901, was also guarantied by the defendant, and demand, protest, and notice of protest, diligence in collecting, and extension of time of payment without notice were all waived.

In the fall of 1901 Cunningham made a payment of $1,000-on certain of the notes past due, and in February, 1903, he made another payment of $400 to plaintiff's collector, and at the time of paying the same both he and the defendant requested that the payment be applied on the note, then due, of which the defendant had guarantied the payment. This the collector refused, and applied the payment on other past-due notes, and delivered the notes so far as fully paid, to Cunningham, who received them. Thereupon the defendant claimed that he was discharged from liability as surety on the $425 note. Correspondence ensued between the company and the defendant, which resulted in a definite compromise. The contract embraced in the letters was, in substance, that the defendant should waive his alleged discharge as surety, and continue as guarantor of the note. The company on its part was to pay, and did pay, the defendant a certain commission which he claimed was due him, and was to carry Cunningham's indebtedness over another season, and to apply future payments first on the surety note until it was "taken care of." Thereafter, and before the commencement of this action, Cunningham made no more voluntary payments on his indebtedness, but by the foreclosure of its chattel mortgages and sale of the property the company recovered a greater sum of money than the surety note, with interest, amounted to, but applied such proceeds to the payment of other notes. This action was brought to recover from Lambertson the full amount of the note guarantied by him.

The court below rendered judgment in favor of the defendant, and the company brings the case here.

F. D. Boyce, for plaintiff in error. Thompson & King, for defendant in error.

The

SMITH, J. (after stating the facts). first assignment of error is the ruling of the court upon the motion of the plaintiff that the answer be made more definite and certain in five different parts thereof, which were specified. The court sustained the motion as to three of the specifications and overruled it as to two. Both the plaintiff and the defendant excepted to the ruling, and the defendant was granted leave to file, and did afterward file, an amended answer. The exceptions are too general to raise any question for review. A single exception to a series of rulings is unavailable, if any one of them is correct. 8 Encyc. Pld. & Prac. 167, 168, Sumner v. Blair, 9 Kan. 521; Bailey v. Dodge, 28 Kan. 72. The plaintiff, by implication, admits the correctness of three of the five rulings. Besides, the filing of an amended answer, to which no objection is urged in plaintiff's brief, presumably cured any defect that may have existed in the original answer. Again, it should be said, the matters claimed to have been defectively pleaded appear from

the record to have been fully tried out, and, if any error was made in the rulings, the plaintiff was not prejudiced thereby.

Further, it is urged that the court erred in its second conclusion of law, viz., "that the agreement to indorse subsequent payments upon this $425 note, embraced in the correspondence between the plaintiff and the defendant, was based upon a sufficient consideration as the settlement of a doubtful and disputed claim, and was a valid contract between the parties." The objections to this conclusion of law are (1) that the defendant did not plead the compromise as a defense, and (2) that there was no consideration for the agreement to indorse future payments on this particular note. It is technically true the defendant did not plead the compromise of the claim that the $400 paid by Cunningham had not been applied on the surety note as Cunningham directed. Evidence was offered, however, of this fact, without any objection on the part of the plaintiff, and witnesses were cross-examined by plaintiff's attorney in relation thereto. The parties to an action may enlarge the issues by mutually trying out issues of fact not involved in the pleadings. The contract, however, was pleaded, and was alleged and proven to be a written contract. A written contract imports a consideration. Gen. St. of 1901, § 1196. It was unnecessary to allege a consideration, or to prove in what it consisted, at least until the issue of no consideration should be raised by reply. The reply in this case did not raise the issue. 4 Encyc. Pld. & Prac. 946. The finding of fact, which is embraced in this conclusion of law, as to what constituted the consideration, while justified by the evidence, is wholly immaterial, and no error can be predicated thereon. The judgment of the district court is affirmed. All the Justices concurring.

(74 Kan. 397)

STATE v. ASBELL.

(Supreme Court of Kansas. July 6, 1906.) 1. ANIMALS-INSPECTION - IMPORTATION INTO STATE-INFORMATION.

An information drawn under section 27 of chapter 495, p. 823, of the Session Laws of 1905, relating to the inspection by the live stock sanitary commissioner of cattle imported from places beyond the south line of the state, which charges a want of inspection by the live stock sanitary "commission," and charges generally the want of any inspection, is not invalidated by the omission of the terminal syllable "er" from the word used to describe the official having power to make the inspection.

2. COMMERCE-INSPECTION LAWS-VALIDITY

INTERSTATE COMMERCE.

The statute referred to is a reasonable inspection law necessary for the protection of the cattle of the state against the ravages of contagious and infectious diseases, and is not invalid as a regulation of interstate commerce. [Ed Note. For cases in point, see vol. 10, Cent. Dig. Commerce, §§ 53, 89.]

(Syllabus by the Court.)

Appeal from District Court, Labette County; Thos. J. Flannelly, Judge.

B. F. Asbell was convicted of a violation of the law relating to the inspection of cattle, and appeals. Affirmed.

A. D. Neale, for appellant. C. C. Coleman, Atty. Gen., and E. L. Burton, for the State.

BURCH, J. Appellant was convicted of a violation of the law relating to the inspection of cattle brought into the state from points beyond its south line.

The information charged, among other things, that appellant brought cattle into the state from points south of its south boundary without having caused them to be inspected and passed under a certificate of health by the live stock sanitary commission of the state and that he did not have any inspection of them. This pleading was attacked by motion to quash, and by motion in arrest of judgment, on the ground that there is no longer any live stock sanitary commission in this state; the body formerly existing under that name having been superseded by a live stock sanitary commissioner, and that the general statement of a want of any inspection is insufficient. There is no substantial difference between a commission composed of a body of individuals having lawful warrant to perform certain acts and a commissioner having identical authority. Both terms are general characterizations without fixed legal signification and import an office with prescribed duties. It is therefore very technical to say that the omission of the terminal syllable "er" marks a fatal distinction between a single person having power by himself and his subordinates to inspect cattle and issue health certificates, and all other men. Instead of this it merely discloses a slightly imperfect description of a well-known state official. Of course, an information must state the offense charged with accuracy, precision and certainty; but it may do this in general terms. State v. Finley, 6 Kan. 366. The question is could the accused have been misled? State v. McCord, 8 Kan. 232, 12 Am. Rep. 469. Hence, if the defect noted were serious, the general negative of any inspection whatever fairly apprised appellant of the charge he was required to meet. Although this allegation was probably inserted for the purpose of showing a want of inspection by an inspector as distinguished from the commissioner it is broad enough to cover all persons; and whenever a negative is to be expressed general terms covering the entire subject-matter will suffice. 1 Bishop's New Crim. Proc. § 141.

The action was instituted under section 27 of chapter 495, p. 823, of the Session Laws of 1905, which reads as follows: "It shall be unlawful for any person or persons to bring, drive or transport any cattle into any county of the state of Kansas, except for immediate