(193 P.) plaintiff and defendant, to be a flour manufac-, on the market at Kansas City for use largely, tured by removing the bran and feed and 5 if not entirely, by bakers in making bread. per cent. of the lower grade flour from the That evidence may be detailed as follows: wheat, and that there was no agreement or custom among flour dealers, including plaintiff and defendant, by which said flour was understood to have qualities and constituents which would make it fit and proper to make marketable bread when properly prepared and baked, and that the plaintiff delivered to the defendant flour that was manufactured by removing from the entire product of the wheat the bran and feed and 5 per cent. of the lowgrade flour, then you are instructed that the delivery of such flour would be a compliance by plaintiff with their contract, and plaintiff would be entitled to recover in this action from the defendant; but if you find from the evidence that Gold Drop 95 per cent. flour was a flour sold on the market at Kansas City as an article of commerce for use largely, if not entirely, by bakers for the baking of bread, and was so understood by those dealing in said flour on said market, including the plaintiff and the defendant, at the time of making the contract for the sale of the flour in question in this case by the plaintiff to the defendant, then you are instructed that the plaintiff was bound to deliver to the defendant flour of kind and quality fit and proper for use of bakers for baking bread; and if you find from the evidence that the plaintiff did not deliver to the defendant flour of that kind and quality, but did deliver flour that could not be used by bakers in the baking of bread, and that by reason thereof the defendant was unable to sell to bakers the flour which the plaintiff had delivered to the defendant, and the samples furnished defendant by plaintiff of the flour which plaintiff expected to deliver in the future to defendant, was of the same quality as that already delivered, then you are instructed that the plaintiffs did not comply with their contract, and that the defendants were not bound to accept any further delivery of said flour, but had the legal right to refuse to accept it, and your verdict should be for the defendants." There was evidence to show that "95 per cent. flour" was a standard grade, and was extensively, almost wholly, used by bakers in Kansas City in making bread; that "Gold Drop" was the name given by the plaintiffs to the 95 per cent. flour manufactured by them; that they contracted with the defendants to sell them "Gold Drop" 95 per cent. flour; that the flour delivered was not of the grade called for by the contract; that the defendants were engaged in selling flour to bakers for the purpose of making bread; that part of the flour purchased was sold to bakers in Kansas City; that the flour thus sold did not make bread; and that the defendants were compelled to take it back and furnish other flour in its place. There was also evidence of a chemical analysis of the flour delivered to the defendants from which the jury could have concluded that it was of a quality poorer than that of the grade sold. There was further evidence which tended to show that the plaintiffs and the defendants understood that 95 per cent. flour was sold The plaintiffs in their opening statement to the jury said: "Now the Gold Drop flour was a well-known flour. The evidence will show that it was a manufactured article of commerce that had been furnished to the trade, the flour trade, of Kansas and Missouri for perhaps 30 or 40 years, perhaps 40 years; that it was a 95 per cent. flour; they knew what it was." In a letter written by the plaintiffs to the defendants this language was used: "Nearly all old wheat, milled after the extreme weather, shows some trace of a stacky odor, and we are informed by bakers that it bakes out all right and with no effect therefrom." "James R. Blacker testified that '95 per cent. flour is flour with 5 per cent. of the low grade extracted, and also the feed extracted, and to us it means in trade it is a standard piece of goods,' and that it was sold to the bakery trade almost universally. "Mr. Estabrook, a chemical expert, testified that the trade recognizes 95 per cent. flour as standard patent, and that that is a trade term for it. John A. Wilson, another chemical expert, testified that there is a grade of flour known as 95 per cent. flour, and to his knowledge that has been a grade of flour dealt with on the Kansas City market for probably sixteen years; that he had known of that flour being on the market; that it is a grade of flour generally dealt with on the Kansas City market; and that it was used mostly by the baking trade, although it also goes into family trade in some sections. Witness stated that the baking trade, bakers as distinguished from homes, almost universally used that grade of flour." Outside of the evidence, it is well known that practically all flour is sold for use in making bread, and that this is the principal use for which flour as such is sold. Small quantities of flour are used for other purposes, but that use is negligible. Because these are facts known by all, the courts take judicial notice of them. City of Topeka v. Zufall, 40 Kan. 47, 49, 19 Pac. 359, 1 L. R. A. 387; 16 Cyc. 852. The plaintiffs cite Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179, 15 L. R. A. (N. S.) 877, where this court said: "Where a known, described, and specified article is sold by a dealer under a contract to be executed by delivery of the specified article, which is actually supplied to the buyer, there is no implied warranty that it shall answer the particular purpose intended by the buyer, although such purpose is communicated to the dealer beforehand." Syl. § 1. This rule is supported by Safe & Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, and Telephone Co. v. Telephone Co., 83 Kan. 64, 109 Pac. 780. In Field v. Kinnear et al., 4 Kan. 476, a case that arose over the sale of flour, been set out, and there was no error in giv. this court said: ing it. [3] 3. The plaintiffs argue that the verdict was contrary to the evidence. This argument is based on the contention that there was no evidence to show that the flour de "In an executory contract for a sale of goods by sample, it is the privilege of the vendee to return the goods, if they do not correspond with the implied warranty, and thereby rescind the contract, or he may retain them, and re-livered was not of the kind and character cover damages." Syl. § 1. "In such a contract for goods not yet manufactured, there is an implied warranty that the goods shall fill the terms of the contract." Syl. § 2. In Bigger v. Bovard, 20 Kan. 204, a case that arose over the sale of meat, this language was used: "A vendor impliedly warrants goods sold by him without any opportunity of inspection on the part of the buyer to be of a merchantable quality, and reasonably fit for the purpose intended; and if, when the goods are delivered to the buyer, they are unmerchantable and called for by the contract. The evidence to prove that fact has been summarized under the discussion of the complaint of the plaintiffs concerning the instructions. That evidence was sufficient to support the verdict of the jury. The judgment is affirmed. (107 Kan. 623) GESTENSLAGER v. SAKDOL et al. (No. 22682.) (Syllabus by the Court.) unfit for use, the buyer may return them with- (Supreme Court of Kansas. Nov. 6, 1920.) out unnecessary delay, and rescind the contract; and if the goods, on being returned to the vendor, are injured or damaged without any fault or negligence on the part of the buyer, such injury does not prevent a rescission of the contract." Syl. Frauds, statute of 158(4)—Evidence held to show promise to pay another's debt was independent promise for benefit of promisor. The evidence considered, and held, that a promise to pay the debt of another was an in In Craver v. Hornburg, 26 Kan. 94, it was dependent promise, made for the advantage of said that: the promisor, in consideration of forbearance against the person owing the debt. by the promisee to bring a contemplated suit Sakdol, debtor, and the Home State Bank of Action by Fred Gestenslager against Frank Greensburg and C. R. Rixon on their prom In Lukens v. Freiund, 27 Kan. 664, 51 Am. ise to pay the debt. Directed verdict for the Rep. 429, it was said that: "While, when an article is ordered from a maufacturer to be by him maufactured for a specific and understood purpose, there is in some cases an implied warranty that the article when manufactured will be reasonably fit for the purpose intended, yet when a purchase is made from him of a specific and completed article he is to be regarded as a dealer and his liability determined accordingly." Syl. § 2. Other cases that have some bearing on this question are Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L. R. A. 681, and Nixa v. Lehmann, 70 Kan. 664, 79 Pac. 141, 70 L. R. A. 653. Extended notes on implied warran. ties of articles of food sold will be found in 22 L. R. A. 195, 15 L. R. A. (N. S.) 884–893, and L. R. A. 1917F, 472-475. It must be conceded that when flour is sold, it is sold for use in making bread; there is therefore an implied warranty that it will make bread. It follows that, if flour sold will not make bread, the purchaser may return it and collect the damages sustained by him. The evidence justified the instruction that has two last-named defendants, and plaintiff appeals. Reversed, and cause remanded for a new trial. H. O. Trinkle, of Garden City, for appellant. Wm. Easton Hutchison, of Garden City, and C. H. Bissitt, of Greensburg, for appellee. BURCH, J. The action was one by a creditor to enforce the promise of a third person who had assumed and agreed to pay the debt. The district court directed a verdict for the defendants, and the plaintiff appeals. The plaintiffs' petition and evidence disclosed the following basis for recovery: Sakdol owned a crop of several hundred acres of kafir corn and maize, which was ready for harvest, and 'which he was financially unable to care for. Sakdol was indebted to Gestenslager for labor performed in growing the crop. Sakdol was indebted to other farm laborers, to the Home State Bank of Greensburg, and to others, and in his financial distress had resorted to the practice of giving checks without funds in bank to meet them. (198 P.) fant child to the mother, does not preclude a Appeal from District Court, Reno County. Action by Charles A. Woodall against Ulery Alexander and others, with intervention by Eva May Hegarty. Judgment for intervener on conditions, and defendants appeal. Affirmed. Taylor & Connaughton, of Hutchinson, for appellants. Simmons & Simmons, of Hutchinson, for appellee. Gestenslager, believing he was in danger of losing his claim unless he could make it out of the crop, went to Garden City, the county seat of the county in which his crop was growing, for the purpose of bringing an attachment suit. Sakdol, who lived in Greensburg, had sent Gestenslager a telegram that Rixon and Smith would be in Garden City that night, and Sakdol would be with them. Rixon and Smith represented the bank. When Rixon and Smith arrived, they conferred with Gestenslager, and induced him to forego bringing his attachment suit, on these terms: Rixon and Smith would go out to the land, look at the crop, and, if satisfied with it, they would take over the crop, harvest and market it, and pay Gestenslager and the other farm laborers. The next day Rixon and Smith went to the land, inspected the crop, and were satisfied with it. They took from Sakdol a bill of sale, for DAWSON, J. This lawsuit arose over the which they paid. Sakdol $50, and proceeded custody of a child. Charles A. Woodall and to harvest and market the crop. The bank the appellant were married and divorced in In- Oklahoma. In the action for the divorce, the expected to profit by the transaction. stead of that, the crop did not pay the ex- appellant was given the exclusive custody of pense of harvesting and marketing, and the the child in question, but the husband and father was given the right to see the child bank refused to pay Gestenslager. at all reasonable times. Later, the original decree was modified by the trial court of Oklahoma, and the father was given the right to visit the child at reasonable intervals "such visits to be made in the presence of the said plaintiff, Eva May Woodall, and when the said defendant is accompanied by some aforesaid to this action, and at such places as disinterested person, agreeable to both parties are agreeable to both said parties to be previously arranged by them in each instance." There was evidence in opposition to that favorable to the plaintiff, but the court declined to submit the case to the jury, on the ground the promise sued on was within the statute of frauds. The promise was an original undertaking by the bank, made to se cure possession of the crop, in order that the bank might make its claim out of the crop. Incidentally, Sakdol would be benefited by having his debts paid; but he was helpless in the matter, and in order to save itself the bank intervened. The plaintiff's threatened attachment of the crop stood in the bank's way, and his forbearance to sue constituted consideration for the bank's promise. The principles of law governing the transaction are sufficiently discussed in the opinion in the case of Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150, L. R. A. 1917D, 872, and in the authorities there cited. The judgment of the district court is reversed, and the cause is remanded for a new trial. All the Justices concurring. (107 Kan. 632) WOODALL v. ALEXANDER et al. (HEGAR- (Syllabus by the Court.) A decree in a divorce action in another state, which awarded the custody of an in Later, the divorced wife moved to Hutchinson, Kan., and married Mr. Hegarty. The child was taken to Kansas, and thereafter the father was put to considerable trouble and expense in visiting it. The mother's situation was such that the child was in the custody of its maternal grandmother in and near Hutchinson for periods of considerable duration, perhaps over half the time. At one time the father brought an action in the district court of Reno county to enforce his right to see and visit the child, and judgment was given in his favor. The present action was brought by Woodall against the child's maternal grandmother and her husband to procure the unqualified custody of the child. The mother intervened. The trial court decreed that hereafter the mother should have the exclusive custody of the child, and its maternal grandmother and her husband should have no direction, custody, or control of it, nor should it be allowed to visit them, except when accompanied by its mother; and that the father should have full right to visit the child at reasonable times, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "It is further ordered that the said father, | quired into, and any order relating thereto at any time when the child is not in school or may be made whenever the child's best indetained by other sufficient reasons, by giving terests so demand. Thus, in the analogous bond in the sum of $500, to be approved by the case of In re Bort, 25 Kan. 308, 37 Am. Rep. clerk of the district court of Reno county, Kan., 255, where the parents of two children had that he will return the child to the custody been divorced in Wisconsin and the custody of said intervener, or in lieu thereof deposit of the children had been conferred upon their with the clerk of the court $500 in cash or a certified bank check, payable to the order of father by that court, it was held that the said clerk of the district court of Reno county, Wisconsin judgment, while binding the parKan., shall be allowed to take said child to ents inter sese, did not preclude this court the state of Oklahoma to visit him and his peo- from changing the custody of the children ple for a period of time not to exceed two from the father to the mother, and it was so weeks, and not oftener than three times a decreed. The one assignment of error is based upon part of the decree which permitted the father to take the child to Oklahoma three times a year for two weeks at a time. The judgments of the district court of Oklahoma were only res judicata as to the custody of the child so long as the situation of the parties was unchanged. In re King, 66 Kan. 695, 696, 72 Pac. 263, 67 L. R. A. 783, 97 Am. St. Rep. 399; In re Hamilton, 66 Kan. 754, 71 Pac. 817; In re Petitt, 84 Kan. 637, 643, 114 Pac. 1071; Pinney v. Sulzen, 91 Kan. 407, 414, 137 Pac. 987, Ann. Cas. 1915C, 649. Moreover, the welfare of the child being the paramount consideration, the circumstances pertaining to its custody may always be in In this case the altered circumstances am When the cus ply justified the scant relief accorded the It is but a small concession which the judgment extends to the plaintiff, and that judgment contains no error, at least none of which the mother can rightfully complain. Affirmed. All the Justices concurring. (97 Or. 634) (193 P.) ENGSTROM v. WISE DENTAL CO. health and constitution; that she suffered much pain and required the attendance of a skilled surgeon; that her jaw had to be (Supreme Court of Oregon. Nov. 9, 1920.) lanced; and that she was permanently dis 1. Physicians and surgeons 18(7)-Reputation for care inadmissible on issue of negli gence. In an action where negligence on the part of a dentist is charged, evidence as to his reputation for care is inadmissible. 2. Trial 260 (8) Refusal of instruction harmless in view of instruction given. In an action for dental malpractice where the jury were charged that the only negligence for which defendant could be liable was that alleged and that it was essential to recovery that such negligence be the proximate cause, etc., the refusal of a requested instruction that, where there were two or more possible causes of the condition from which plaintiff suffered, plaintiff, to recover, must show that the injury was the result of that cause which would render defendant liable, was harmless. figured in and about her face and neck, suffered great physical and mental anguish, and was confined in a hospital-by reason of which she claims damages in the sum of $2,500. The defendant admits its incorporation and the employment as alleged, makes a general denial of all other allegations of the complaint, and for its separate answer alleges: "That at the time of the employment of defendant by plaintiff as alleged in the complaint it was understood and agreed between plaintiff and defendant that the defendant was to extract certain teeth and to cure and properly take tracted and to do such work in a careful mancare of plaintiff's jaw after they were so exner, and to attend and doctor plaintiff until the jaw where said teeth were extracted should be healed, and that plaintiff should attend to and follow the instructions of defendant and 3. Physicians and surgeons 18 (9) -Malprac- report frequently to the office of defendant for tice held for jury. In an action for dental malpractice, the question whether defendant was negligent in extracting and treating a tooth so as to become responsible for an infection held properly submitted to jury. Burnett, J., dissenting. Department 1. Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge. Action by Ellen Engstrom against the Wise Dental Company. From a judgment for plaintiff, defendant appeals. Affirmed. The plaintiff is a girl, a native of Finland, who recently came to the United States, and at the times alleged in the complaint did not understand, read, or speak the English language. The defendant is an Oregon corporation with its principal office in the city of Portland, and was there engaged in dental surgery and the practice of dentistry. About April 4, 1918, the plaintiff employed the defendant to do certain dental work for her at the agreed price of $25, of which $5 was then paid, in consideration of which the defendant was to extract some teeth for her in a careful and skillful manner. The plaintiff alleges that while she was under its care, in violation of its duty, the defendant was negligent and careless in treating and caring for her in extracting a tooth from her lower left jaw, in subsequent treatment, and in the use of certain drugs, medicines, and unclean and defective Instruments; that by reason of the use of instruments which were unclean and unfit the plaintiff's left lower jaw was poisoned and became swollen, inflamed, and diseased; that she was rendered sick and injured in her examination and treatment until said jaw should be healed." It is averred that the defendant "instruct ed plaintiff to keep said jaw cleansed and free from infection and report at once to defendant any unusual pain or condition of said jaw"; that she neglected to comply with instructions or properly to care for and treat her jaw; and that her injuries were the result of her own carelessness and negligence. As a second further and separate answer the defendant pleads: "That the alleged injury and damage to plaintiff was caused proximately by her own negligence and want of care in failing to require or permit defendant to care for and treat her jaw until the same was healed." The plaintiff makes a general denial of the answer and further alleges: her jaw to ascertain whether or not they had left a piece of the root therein; that they injected in her jaw a metal instrument; and that in a few hours thereafter plaintiff was in great pain and was thereafter removed to the hospital, with the results as set forth in plaintiff's complaint." "That she asked the defendant to examine During the trial, over the objection of the plaintiff, the defendant was permitted to introduce testimony tending to show that the plaintiff had some teeth extracted in Finland and that a portion of one of the roots had been left embedded in her left lower jaw near the point where the defendant had removed one of her teeth. This was for the purpose of tending to prove that the injuries which the plaintiff sustained were the result of the dental work done in Finland. At the conclusion of the evidence the plaintiff moved For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |