and received by defendant as interest on said debt, and such interest was usurious. (8) All of said payments were made by said F. F. Groves out of his own money. (9) The defendant did not know or have any information that said payments were made for the plaintiff, George Rowley, any further than they were made on said note." conclusion of law upon these facts, the court found that the plaintiff was entitled to recover from the defendant $264 and costs. The defendant moved the court for judgment upon the findings, which motion was by the court overruled, to which ruling defendant excepted.

Theo. Laing, for plaintiff in error. nett & Peck, for defendant in error.

As a

Ken

JOHNSTON, J., (after stating the facts.) Under the national banking act, a national bank cannot charge a higher rate of interest than is allowed by the laws of the state where the bank is located; and, if a greater rate of interest is knowingly charged and reserved, it operates as a forfeiture of the entire interest which the note or other evidence of debt carries with it. "In case a greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back in an action in the nature of an action of debt twice the amount of interest thus paid from the association taking or receiving the same, providing such action is commenced within two years from the time the usurious transaction occurred." Rev. St. U. S. § 5198. Rowley asks to have the penalty of these provisions enforced, and by their terms his right of recovery must be measured. The bank, having charged and collected usurious interest, has become liable for double the amount of the illegal interest that was paid. The liability, however, is to the person who paid it. The penalty can only be enforced in the manner and under the circumstances provided in the act of congress, which provides that the right of recovery rests only in "the person by whom it has been paid or his legal representatives." From the evidence, it appears that Rowley and Groves were joint makers of the note upon which the illegal interest was charged and paid. While the loan was made to Rowley, both of them were liable upon the note, and the bank, at its option, might have brought an action against one or both of them. The court has found that Groves, and not Rowley, paid the illegal interest, and that the payments were made by Groves out of his own money. The money having been paid by him, the liability arises in his favor, and no recovery can be had, except by him, or his legal representatives. The right of recovery is not affected by the fact that Rowley requested Groves to pay the debt and interest. Groves being jointly liable, and having used his own money in making the

payment, it cannot be said that the par ment was made by Rowley. It does not appear that Rowley has ever contributed the amount paid by Groves, nor any portion of the same. Under the facts of this case, clear right of recovery is shown to be in Groves, and, as he is not a party to this action, he would not be bound by any judg ment that was given therein. The right f action is in the person by whom the money is paid, and it has been held, under the same statute, that the joint maker of a note on which illegal interest is charged cannot recover the penalty from the bank, where the illegal interest was paid by the other maker. Timberlake v. Bank, 43 Fed. 231 The judgment must therefore be reversed. and the cause remanded, with instructions to enter judgment in favor of the plaintiff in error. All the justices concurring.

At

1. B.. deceased, in his lifetime was mar ried three times. By his first wife he had one child. By his second wife he had one child By his third wife, surviving him, he had five children. He died intestate in this state. his death, one-half in value of his real estate, not necessary for the payment of his debts, de scended in fee simple to his widow; the other half of his real estate descended to his seve children equally, being all of his children by his three wives.

2. Held, also, that upon the death of bis widow her estate descended to her own children.

(Syllabus by the Court.)

Error from district court, Sedgwick county; C. Reed, Judge.

Action for partition between Helen H. Carlton, Lillie P. Burleigh, and others. From the judgment rendered, Helen H. Carlton brings error. Affirmed.

J. D. Hanston and W. H. Boone, for plaintiff in error. Campbell & Dyer, for defendants in error.

HORTON, C. J. H. O. Burleigh, late of Sedgwick county, deceased, was married three times. By his first wife he had one child, Minnie Cowley. By his second wife he had one child, Helen H. Carlton. By his third wife, Mrs. Mollie L., he had five chil dren. On the 31st day of December, 1887, three weeks prior to the death of his third wife, H. O. Burleigh died intestate at his home in Wichita, in this state, leav ing an estate. On the 21st day of January, 1888, three weeks after H. O. Bur leigh's death, his widow, Mrs. Mollie L. Burleigh, died intestate. This was an action in the court below for partition, and the sole question is whether the two children of H O. Burleigh, by his former wives, inherited any part of the estate of Mrs. Mollie L. Bur

leigh, the widow. Under the rulings of the trial court, when the husband, H. O. Burleigh, died intestate, one-half of his estate, after paying all his debts, descended

to his widow, Mrs. Mollie L. Burleigh, and the other half descended to his seven children equally, being all of his children by his three wives. Section 8 of "Descent and Distribution" provides: "One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid." Paragraph 2599, Gen. St. 1889. It is clear, therefore, that at H. O. Burleigh's death his wife, Mrs. Mollie L. Burleigh, inherited in fee simple one-half in value all of the real estate in which her husband died seised, not necessary for the payment of his debts. The remaining half of the estate of which Burleigh died seised descended in equal shares to his children,— to all of his seven children. By section 18 of "Descent and Distribution," Mrs. Burleigh's children, being her own heirs, would inherit her property at her death, but it is claimed that under section 29 of the same act the two children of H. O. Burleigh by his former wives also inherited a part of Mrs. Burleigh's estate at her death. That section reads: "Children of the half-blood shall inherit equally with children of the whole blood. Children of a deceased parent inherit in equal proportions, the portion their father or mother would have inherited if living." We do not think these provisions change the rule of descent as declared by the trial court in this case. This section does not make the children of the former wives the heirs of Mrs. Burleigh, if the other provisions of the statute are to be given operation. Mrs. Burleigh was not related by blood to the children excluded from inheriting from her by the trial court. When a parent dies, the parent's children of the half-blood inherits the parent's estate equally with the parent's children of the whole blood. Probably children of the half blood, when the parents are dead, may inherit from children of the whole blood, equally with the children of the whole blood. This would give the first clause of section 29 some operation. If, however, we adopt the

rule that the property should descend so that H. O. Burleigh, if living, would inherit it, then his first wife, who died years ago, would inherit one-half of the estate, and her child would inherit that, and so with the second wife, and so with the third wife. This would be contrary to the provisions of said sections 8 and 18, above referred to. All of the provisions of the Illinois statute concerning descent do not conform fully to our own, although the statute relating to half bloods is somewhat similar, using the word "kindred," however, in the place of "children." For these and other reasons we do not follow the case of Coal Co. v. Pasco, 79 Ill. 164. The judgment will be affirmed. All the justices concurring.

DAVIS v. LAWRENCE et al

(Supreme Court of Kansas. Dec. 9, 1893.) FACTORS AND BROKERS COMMISSIONS, WHEN EARNED-PLEADINGS AND PROOFS-VARIANCE.

1. Real-estate agents, authorized to sell the land of another at a stated price and for a certain compensation, have earned their commission when they produce a purchaser able, ready, and willing to purchase the land upon the terms and conditions agreed upon.

2. The recovery of the commission in such case cannot be defeated because the owner then refuses to convey, or where, through his fault or negligence, the transfer of the land cannot be completed.

3. In the original contract, which was set out in the petition, a part of the consideration for the land was to be paid in cash. Upon the trial it was shown that the owner subsequently agreed to accept as cash a secured note offered by the proposed purchaser, but this subsequent arrangement was not mentioned in the petition. Held, that the admission of this proof did not constitute such a departure from the allegations of the petition as to require a reversal. (Syllabus by the Court.)

Error from district court, Shawnee county; John Guthrie, Judge.

Action by L. W. Lawrence & Co. against D. W. Davis to recover commissions for the

sale of property. Plaintiffs had judgment, and defendant brings error. Affirmed.

N. B. Arnold and E. E. Chesney, for plain. tiff in error. Quinton & Quinton, for defendants in error.

JOHNSTON, J. This was an action by L. W. Lawrence & Co., who were real-estate agents, to recover from D. W. Davis the commission for a sale of his property. The contract between the parties was as follows: "You are hereby authorized to sell my property, to wit, lot ninety-seven, (97,) on Kansas avenue street, for ten thousand dollars, ($10,000.00,) terms of payment as follows: Seven thousand four hundred dollars ($7,400.00) cash, balance on the following payments: Assume mortgage of twenty-six hundred dollars, ($2,600.00.) Description of improvements: Two small houses, commission five per cent. on first four thousand dollars, ($4,000.00,) and two and a half per cent. on

balance of ten thousand dollars, ($10,000.00;) making in all three hundred and fifty dollars, ($350.00.) Title good. Can give possession upon sale. I declare upon honor that the foregoing is a fair, truthful, and not exaggerated statement of facts in relation to said property. If you make a sale, or furnish me a customer to whom I sell, I will pay you three hundred and fifty dollars ($350.00) commission; and I agree to report any change in price or any sale I make, and not to sell or offer to sell at less than as above stated. Period of until sold, and to leave it on your books until I call and take this up." Pursuant to this agreement the property was placed upon the books of the agents, and advertised for sale, and soon thereafter they found a purchaser who was willing to take the property at the price named, providing the title was good, as represented, and that Davis would accept a certain promissory note, secured by mortgage, the same as cash. According to the testimony, Davis agreed to accept the se cured note as cash. It appears that the proposed purchaser was able, willing, and ready to purchase the property at these terms, but he discovered that the title was defective; and, after an unsuccessful effort to clear it up, he declined to take the property. The agents then demanded their commission for procuring a customer, but Davis refused payment, whereupon the present action was brought. The trial resulted in a judgment in favor of the agents for the amount of their commission. There appears to be sufficient testimony to sustain the judgment. The agents had undoubted authority to sell the property, and when they produced a purchaser able, ready, and willing to purchase the land upon the terms and conditions prescribed by the landowner, they had earned their commission. The recovery of such commission cannot be defeated because of the negligence or fault of the owner, or because the owner subsequently changed his mind about making a sale and conveyance of the property. Fultz v. Wimer, 34 Kan. 576, 9 Pac. 316; Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98; Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592. The agents could not effect a completed sale or transfer of the property because the title remained in Davis, and a fair interpretation of the language of the agreement only required them to find a purchaser to whom a sale could be made upon the prescribed terms. When they had produced such a purchaser they had performed their part, and were entitled to the agreed compensation. Although complaint was made, there was no substantial departure in the proof from the allegations of the petition. There was no modification of the contract alleged, except that a certain secured note was to be accepted by Davis as cash.

There was no dispute about the agency, nor that Davis agreed to accept the note

as cash, and the only substantial question was whether the sale had failed through the fault of Davis. Although all the testincy is not here, enough is included in the reard to show that the title was not good, and that the purchaser declined to take the property because the title was defective. It being the fault of Davis that the sale was not closed and completed, Lawrence & Co. were er cused from taking any further steps, mi under the authorities cited, became entitled to their commission.

The instructions of the court complained of were in harmony with the views that we have expressed, and no special comment o on them is required.

An objection was made to the testimony with respect to the value of the services in an effort to obtain a title to the property. but, as the amount recovered did not exceed the sum stipulated in the contract, the ob jection becomes immaterial. We find no substantial error in the record, and therefore the judgment of the district court will be affirmed. All the justices concurring.

1. A divison superintendent of a railroad company has authority to employ physicians and surgeons to attend upon employes injured in the service of the company he represents.

2. A brakeman, whose foot was crushed while he was employed in the service of a railroad company, desired the attendance of a cer tain physician, and, this desire having been brought to the attention of the division superintendent, he telegraphed to the station agent, directing him to notify the physician, and in obedience to this direction the agent called the physician, telling him that he was called st the instance of the division superintendent, and, after furnishing him with medicines and surgical appliances from the medicine chest_kept by the company, took him to the injured en ploye, where medical and surgical services were rendered. Held, in an action to recover the value of such services, that these and other cir cumstances surrounding the transaction tended to show an employment by the company, and upon an examination of the evidence offered by the plaintiff, it is held that no error was com mitted in overruling a demurrer thereto.

3. The omission of the court, in charging the jury, to construe the language employed in the telegram sent by the division superintend ent, is not material error, since no such instruc tion was requested by the company.

4. Gas Co. v. Schliefer, 22 Kan. 468, followed.

(Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by W. H. Winterbotham against the Union Pacific Railway Company to recover for services performed. Plaintiff had judgment, and defendant brings error. Affirmed

A. L. Williams, N. H. Loomis, and A. F. Williams, for plaintiff in error. Lovitt & Norris, for defendant in error.

The

JOHNSTON, J. This was an action by Dr. Winterbotham to recover from the Union Pacific Railway Company $200 for services rendered by him, as physician and surgeon, for an employe of the company. The case was submitted to the jury upon the testimony, and a verdict was returned for $200, with interest from November 6, 1889, and judgment thereon was rendered for the sum of $204. The principal contention is that the testimony was insufficient to justify the verdict that was returned. From the testimony of the plaintiff below, it appears that on May 9, 1889, while F. W. Johnson was employed in the capacity of brakeman near Oakley, Kan., the train ran over and crushed his foot, so that amputation was necessary. He was at once taken in charge of and cared for by the employes of the company. conductor under whom he was acting inquired whether he wished to be taken to the company's hospital, remain at Oakley, or go to Salina where he resided, for treatment. He expressed a wish to be treated at Salina by Dr. Wintherbotham. The conductor stated that he had no authority to ask Winterbotham, but that he would notify Mr. Palmer, who was the division superintendent, and accordingly sent a message to him. In response to this, the division superintendent sent the following message to the agent of the company at Salina: "Wallace, May 10th, '89. (Union Pacific form No. 2,191.) To W. S. Barr: Brakeman Johnson had his foot run over at Oakley, and asks us to notify Dr. Winterbotham to be at his home, on the arrival of train 202, to dress it, as he does not want doctors at Oakley to do it. I presume there is a way for him to get from the depot to his home. Please notify the doctor. A. T. P." Johnson was placed on the next train going to Salina, and when he arrived there he was met by Mr. Barr, the agent, who inquired whether he wanted to go to the office of Dr. Phillips, who was the company's local physician at that place, or to be taken home. He replied that he desired to be taken home, and to have Dr. Winterbotham to attend him. Mr. Barr sent him to his home, and immediately proceeded to the office of Dr. Winterbotham, and solicited the doctor to accompany him to Johnson's home. He stated that he had received a dispatch from the division superintendent requesting him to have Dr. Winterbotham treat the patient. Barr first took the doctor to the Union Pacific depot, and there obtained medicines, instruments, and surgical appliances belonging to the company, for use in the operation to be performed upon Johnson. After an examination of the injured foot, and upon consultation with other physicians, amputation was determined to be necessary, and was accordingly perform

ed. He continued in charge of the case so long as his attention was necessary, and his services were reasonably worth the sum of $200.

We think the testimony tended to sustain the doctor's claim, and that the court committed no error in overruling the demurrer to his evidence. The fact that the testimony is weak or inconclusive would not have justified the court in taking the case from the jury. The demurrer admitted every fact and conclusion which the evidence most favorable to the plaintiff tended to prove, and every reasonable inference arising upon such testimony must be allowed in his favor. It is well settled that unless there has been a total failure on the part of plaintiff to prove a cause of action, or some material fact in issue, a demurrer to evidence must be overruled. Brown v. Railway Co., 31 Kan. 1, 1 Pac. 605; Schuster v. Kurtz, 47 Kan. 255, 27 Pac. 994 Johnson was injured while employed in the service of the company, and it is a reasonable provision to care for and to cure those injured in the hazardous service of railroading. It appears to be customary for railroad companies to provide hospitals, as well as to employ physicians and nurses, for the care of injured employes. As has been stated, the company is interested in the speedy cure of employes who have been disabled, and in their early resumption of the duties in which they have been specially trained, and hence the proper officer or agent of the company may bind it for medical attention rendered in their behalf. Railway Co. v. Beatty, 35 Kan. 265, 10 Pac. 845. is well settled that a general or division superintendent has authority to employ physicians and surgeons to give attention to employes injured in the service of the company he represents. Railroad Co. v. Thomas, 19 Kan. 256; Railroad Co. v. Reecher, 24 Kan. 228; Railroad Co. v. Davis, (Ind. Sup.) 25 N. E. 878. As has been seen, the conductor, acting for the company in the emergency, proposed to send Johnson to the hospital, have him cared for where the accident occurred, or send him to Salina. It appears that he would have been cared for at the hospital or attended by the company's physician at the expense of the company; but; when he asked that Dr. Winterbotham attend him, the conductor, in effect, stated that he had no authority to employ Dr. Winterbotham, but that such a request must come from Palmer, the division superintendent, and that he would ask him to make the request. Palmer sent a telegram to the agent to have the doctor there on the arrival of the train. It is true the message is somewhat ambiguous, and does not specifically state that the company would pay for his services; but the terms used, and the circumstances surrounding the transaction, tend to sustain the conclusion of the court and jury that he was employed in behalf of the company. If Johnson was to employ and pay

It

for the services, there was no necessity to apply to the division superintendent, who was many miles away, to procure the services of the doctor. If an authorized employment by the company was not intended, a request from the conductor or station agent would have served the purpose. The request was sent by one having authority to employ, and, when the doctor inquired at whose request he was sent for, he was told by the agent of the company that he came for him at the instance of Palmer, the division superintendent. The telegram of the division superintendent, although ambiguous, was open to the construction which appears to have been placed upon it by the agent of the company at Salina; and, as tending to show the view which he took as to the authority to employ, he not only procured a carriage to take the doctor to the place where the injured employe was to be treated, but also obtained for the doctor, from the storehouse of the company, medicines, instruments, and appliances necessary for the treatment of the employe. Accepting the testimony most favorable to the plaintiff to be true, as we must, he had a right to infer from the statements made to him by the agent that he was called in behalf of the company, and that the construction apparently put upon the telegram by the agent was the correct one. The common practice of the company, of furnishing medical care and attention to injured employes, the direction of the division superintendent to notify the doctor to attend Johnson, the action of the agent in calling the doctor, and telling him that he was called at the instance of the division superintendent, and the further action of subsequently furnishing medicine and appliances for the treatment of the employe from the medicine chest of the company, taken in connection with the telegram of the division superintendent, fairly tend to support the verdict of the jury.

There is some complaint that the court failed to construe the telegram which was offered in evidence, or the language which it contained. The telegram is not in the nature of a contract or written instrument, and the purpose and liability of the company was to be determined from the telegram, and the circumstances surrounding the transaction. A sufficient answer to the objection is that no instruction of the character mentioned was requested by the plainuff in error. State v. Pfefferle, 36 Kan. 96, 12 Pac. 406; State v. Peterson, 38 Kan. 211, 16 Pac. 263. The final complaint is that interest was allowed upon the bill of the plaintiff below, when there was no specific demand for interest in the pleadings. The action was begun before a justice of the peace, and the pleading was a bill of particulars upon a verified account for $200. After it had been appealed, and when it was finally tried, the court charged that the action was brought to recover $200, with the interest thereon.

It does not appear that any specific obje tion was made to this reference to interes for the reason that it was not demanded a the bill of particulars. As no formal prayer for relief is required in a bill of particuları and as the plaintiff was entitled to interest upon his claim, and as the court, in the pres ence of the parties, instructed that the interest was recoverable, we may fairly tres: the case as though an amendment was b fact made, and hold that no substantial rights of the defendant have been preja diced. Gas Co. v. Schliefer, 22 Kan. 48 The judgment of the district court will be affirmed. All the justices concurring.

A railroad company is not bound, as part of its contract for the transportation of a traveler, who is employed as a traveling sales man for a trading firm, to carry as his personal baggage a case of sample merchandise belong ing to his employers; and where it receives and checks such case without knowledge of its cotents or ownership, a part of which is after wards stolen from its baggage room without negligence on the part of the company, it is not liable to the owners for the value thereof. (Syllabus by the Court.)

Error from district court, Butler county: C. A. Leland, Judge.

Action by B. C. Clark and others against the Southern Kansas Railway Company. From a judgment for plaintiffs, defendant brings error. Reversed.

Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. Peckham & Henderson, for defendants in error.

ALLEN, J. This action was commenced before a justice of the peace of Cowley county, where a judgment was rendered in favor of the defendant for costs. Plaintiffs appealed to the district court, from which a change of venue was taken, because the judge of that court had been of counsel in the case, to Butler county, where the case was tried, and a judgment rendered in favor of the plaintiffs for $136.79. The railroad company brings the case here for review.

By leave of the court the plaintiffs filed an amended bill of particulars in the Butler county district court, in which they al leged, in substance, that they were part ners as wholesale dealers in crockery, table and pocket cutlery, and other wares; that the defendant was a railroad corporation, engaged in the business of transporting pas sengers and freight for hire as common carriers; that plaintiffs had in their employ as a traveling salesman one E. H. Bliss; that on the 24th day of December, 1884, said Bliss, in the regular course of his employment, purchased from the defendant, with the money of the plaintiffs, a first-class pas