ber were the agents of plaintiff. It is unnecessary to comment upon this complaint further than to quote the following, which appears in the case made: "The plaintiff here, for the purposes of this trial, admits that Best and Shomber were the agents of plaintiff."

It is also insisted that the court should have sustained the demurrer of plaintiff to the evidence of defendants. This, upon the ground that no warranty in law was proved or attempted to be proved; further, that the warranty does not extend to or cover defects known at the time the warranty was made, unless specifically mentioned. Even if the law be as plaintiff alleges, there was sufficient evidence in the case to go to the jury to show that the agents of plaintiff warranted the machine to be in good condition and capable of doing good work, but that in fact it was defective and would not do good work; further, that the defects in the machine were not fully known or understood to the defendants at the time the warranty was made.

It is also contended that the court erred in refusing to admit the evidence offered by plaintiff to prove what it would have cost to put in the machine a new lower tension complete. The court committed error in the rejection of this evidence.

One of the findings of the jury was to the effect that the defect in the machine was "in the tension, or parts connected with the tension." Generally speaking, where personal property is sold which is not of the kind represented and warranted, the measure of damages is the difference between the contract price and the value of the article delivered. In other words, the liability of the vendor is limited to the difference between the value of the article actually delivered and that of the article which the parties intended to purchase and contracted for. Weybrich v. Harris, 31 Kan. 92; S. C. 1 PAC. REP. 271. There was no direct or positive evidence offered upon the trial as to the value of the machine actually delivered, and the jury were wholly at sea in ascertaining the amount of damages. If the evidence rejected had been received, it would have tended to show that the defect in the machine could have been repaired for a trifling sum, and therefore would have been some evidence tending to show the value of the machine when delivered. The jury found in substance that the machine, if perfect, would have been worth $75, but, as actually delivered, was worth only $30. It is not probable, if the evidence rejected had been admitted, that the jury would have come to any such conclusion. All the evidence offered tending in any way to establish the value of the machine when delivered ought to have been received and considered by the jury.

Various other errors are alleged, but, as a new trial must be had in consequence of the rejection of competent testimony, it seems at this time unnecessary to refer to the other matters submitted in the briefs

The judgment of the district court will be reversed, and the cause remanded for a new trial.

(All the justices concurring.)

CRIMINAL LAW AND PROCEdure-Costs-PROHIBITORY LAW.

Where a county attorney files an information or complaint against a defendant, under the provisions of chapter 128, Session Laws 1881, commonly known as the prohibitory law, and verifies the same upon information and belief, and to obtain a warrant for the arrest of the defendant has another person verify the complaint to be true of his own knowledge, and there is a failure to convict in the case, the costs of the prosecution are to be paid by the county in which the prosecution was begun; and the person subsequently verifying the complaint as true cannot be adjudged to pay the costs, under the provisions of section 326 of the Criminal Code.

Appeal from Bourbon county.

J. M. Limbocker and S. B. Bradford, Atty. Gen., for appellee.
Bawden & Martin, for appellant.

HORTON, C. J. On August 29, 1884, J. M. Limbocker, as county attorney of Bourbon county, filed in the district court of that county an information against William Barnes, charging him with the violation of the provisions of chapter 128, Laws 1881, commonly known as the prohibitory law. The same was verified by the county attorney upon information and belief, but J. D. Manlove further verified the information as true. State v. Gleason, 32 Kan. 245; S. C. 4 PAC. REP. 363. At the September term of court for 1884, the case came on regularly for trial. The defendant, Barnes, plead not guilty. The jury found the defendant not guilty, and further found that the prosecution had been instituted without probable cause, and for malicious motives, by Manlove. The defendant was discharged, and judgment entered against Manlove for the costs of the prosecution. Subsequently Manlove moved the court to set aside so much of the verdict as related to him, which motion the court overruled. From the ruling and judgment of the court Manlove appeals.

The question is as to Manlove's liability for the costs. On the part of the prosecution, it is claimed that the following section of the statute is applicable:

"Whenever it shall appear to the court or jury trying the case that the prosecution has been instituted without probable cause and from malicious motives, the name of the prosecutor shall be ascertained and stated in the finding; and such prosecutor shall be adjudged to pay the costs, and may be committed to the county jail until the same are paid, or secured to be paid." Crim. Code, § 326.

We do not think this section applies. The information was filed and verified by the county attorney under the provisions of section 12 of chapter 128 of the Session Laws of 1881. Section 12 of said chapter, among other things, provides:

"If the county attorney of any county shall be notified by any officer or other person of any violation of any of the provisions of this act, it shall be his duty forthwith to diligently inquire into the facts of such violation, and if there is reasonable ground for instituting a prosecution, it shall be the duty of such county attorney to file a complaint in writing before some court of competent

jurisdiction, charging the suspected person of such offense, and shall verify such complaint by affidavit; but it shall be sufficient to state in such affidavit that he believes the facts stated in such complaint to be true. * * * If, in any prosecution begun by the county attorney under the provisions of this section, there shall be a failure to convict, the proper costs of such prosecution shall be paid by the county in which such prosecution was begun."

In order to authorize the issuance of a warrant for the arrest of the defendant therein charged, the allegations and facts contained in the information or complaint were further verified by Manlove as being true. State v. Gleason, supra; State v. Blackman, 32 Kan. 615; S. C. 5 PAC. REP. 173. The statute expressly provides that in prosecutions commenced under such circumstances if there is a failure to convict the costs shall be paid by the county. Section 12, supra. If any other construction were given to said section 12, a county attorney might often be found liable for costs, under the terms of section 326 of the Criminal Code, although he was attempting merely to faithfully perform his duty as prescribed in said section 12.

The judgment of the district court rendered against the appellant will be reversed.

(All the justices concurring.)

(33 Kan. 568)

SNYDER V. BELL and another.

Filed May 8, 1885.

MOTION FOR REHEARING DENIED.

Error from Douglass county. On motion for rehearing.

J. W. Green, for plaintiff in error.

D. S. Alford, for defendants in error.

PER CURIAM. It is urged that the decision of this court was based on alleged errors, to which no reference was made either by oral argument or in the brief of counsel for plaintiff in error; and that the court should have taken no notice of such errors, even if they existed. The case came on for trial before the district court without a jury. The court found the facts specifically, and stated its conclusions of law thereon. It was alleged in the petition in error that the trial court erred in its conclusions of law in the case, and also erred in giving judgment for the defendants, when it ought to have rendered a judgment for the plaintiff. In the brief filed by the plaintiff in the case, it was urged that upon the findings of fact the conclusions of law were erroneous, and that judgment should have been rendered for the plaintiff instead of for the defendants. This court, therefore, did not go outside of the record or the briefs in making the decision complained of.

It is next urged that the case ought never to have been disposed of upon its merits, because there was not filed with the petition in error a certified transcript of the record. There is in the record the findings of fact of the trial court, and also its conclusions of law and the

judgment rendered thereon, but the certificate is defective. It is too late, however, to now question the certificate, because the case was originally presented to us upon the record as if properly certified. The objections to the certification ought to have been made in the briefs first presented by the defendants.

Upon the question of the statute of limitation, we think the law properly declared in the decision. Snyder v. Bell, 32 Kan. 230; S. C. 4 PAC. REP. 71.

The motion for rehearing will be overruled.

(33 Kan. 570)

COWLING v. GREENLEAF.

Filed May 8, 1885.

MOTION FOR REHEARING Overruled.

Error from Lyon county. Motion for rehearing. S. C. 4 PAC. REP. 855.

Cunningham & McCarty, for plaintiff in error.

Buck & Feighan, for defendant in error.

PER CURIAM. This case was tried to the court without a jury. The court made its findings of fact and conclusions of law upon the evidence introduced, and no evidence is preserved in the record. The complaint is that this court should have construed the following words of the contract: "But it is expressly agreed between the parties that if at any time during the said period of three years either of these parties shall have just cause so to do, he may annul this contract." The contention of plaintiff is that under the terms of the contract either party had the right to annul the contract for any cause assigned in good faith, and that the plaintiff did annul the contract, acting in good faith, before the commencement of this action, and therefore that he was entitled not only to immediate possession of the sheep in controversy, but also entitled to recover all his costs. The findings of the trial court do not render it necessary for us to construe the words "just cause so to do." The court, in its tenth finding of fact, stated: "Said contract had not been annulled previously to the commencement of this suit." This finding is somewhat modified by the other findings, but not to the full extent of showing any annulment of the contract by the plaintiff, or that he gave any notice to the defendant that he had or would annul the contract.

By the fifth finding of fact it appears that on September 8, 1882, the plaintiff told the defendant that he was not satisfied with the way the latter was treating the sheep, and that they had better settle up, but at that time there was no annulment of the contract. By the eighth finding of fact it appears that on November 28, 1882, the defendant left Kansas for Ohio, and did not return until after this action was commenced, and that in his absence the plaintiff went to his residence and demanded of his wife, Mrs. Fannie Greenleaf, and

his hired man, Dick Nickerson, the sheep. The finding does not show that he made the demand of these parties as the agents of the defendant, or that he gave any reason for the demand. On the other hand, the record shows that he made Mrs. Fannie Greenleaf and Dick Nickerson parties to his action; and his demand upon them, therefore, was the same as if they held the sheep independently of any claim, right, or possession of the defendant. The conclusion of law based upon the findings was "that said contract had not been annulled before the commencement of this suit." If the plaintiff had not been satisfied with the findings of fact, he should have asked the trial court to have made further findings or modify those made. Nothing of this kind was done.

The motion for rehearing will be overruled.

(33 Kan. 569)

JONES v. BROOKS, Treasurer, etc.

MANDAMUS-MOTION TO QUASH.

Filed May 8, 1885.

Original proceedings in mandamus.
Fabius M. Clarke, for plaintiff.

E. J. Turner and Friedrich & Foster, for defendant.

PER CURIAM. The motion to quash the alternative writ of mandamus heretofore issued in this case will be sustained upon the following authorities: State v. McCrillus, 4 Kan. 250; State v. Bridgman, 8 Kan. 458; Bridge Co. v. Commissioners Wyandotte Co. 10 Kan. 326; Troy v. Commissioners Doniphan Co. 32 Kan. 507; S. C. 4 PAC. REP. 1009.

(33 Kan. 521)

ATCHISON, T. & S. F. R. Co. v. SHAFT.

Filed May 8, 1885.

1. RAILROAD COMPANY-FENCING-COMP. LAWS KAN. 1879.

The railroad stock law of 1874 (Comp. Laws 1879, pp. 784, 785, pars. 4915-4919) construed, and held, that generally a railroad company in order to be absolved from liability for stock killed by it in the operation of its railroad, the railroad must be inclosed with a good and lawful fence, to prevent such animals from being on such road."

2. SAME

66

WHEN RELIEVED FROM DUTY OF FENCING.

A railroad company is not absolved from complying with the express terms of the statute requiring it to inclose its road with a good and lawful fence, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad company, rendering it improper for the company to fence its road.

3. SAME-PRIVATE INTEREST OR INCONVENIENCE.

No private interest or convenience or inconvenience on the part of a railroad company will alone be sufficient to absolve it from fencing its road where the statute, in express terms, requires that the road shall be fenced.

4. SAME-INDividual InteREST.

Nor will any private interest or convenience on the part of individuals be sufficient to absolve a railroad company from fencing its road.