But we know of no statute or authority by which a stipulation can be set aside save for some sufficient reason alleged and admitter or proved.

The order setting aside the judgment is reversed. All the Justices concurring.

OF MARYLAND.

(81 Kan. 774)

of account audited and allowed, the nature of each account, and the name of each person to whom such account was allowed. Section 9588 provides that, in addition to the duties then prescribed by law (1871), "the township trustee shall have the custody and disposition of the property of his township and shall, on going out of office take from his successor in office a receipt," etc. By the act of 1885 (Gen. Stat. 1909, §§ SARBACH ▼. FIDELITY & DEPOSIT CO. 9629 to 9636), the township board constitutes a board of commissioners of highways of which the trustee is the chairman; it being their duty to keep the roads and bridges of ELECTION OF REMEDIES (§ 7*) - CLAIMS their respective townships in repair and imAGAINST DECEDENT'S ESTATE. prove them as far as practicable. This act A creditor seeking to recover a fund alauthorizes them to employ a general super-leged to have been misappropriated by its agent intendent, let contracts, appoint overseers, employ laborers, etc.; but the power to let contracts and purchase tools, machinery, or material can only be exercised by the board at an authorized meeting.

(Supreme Court of Kansas. July 6, 1912.) (Syllabus by the Court.)

ceed against the estate of the misappropriator may simultaneously in separate actions proand other parties alleged to have participated in the misuse of the fund, and, after the full amount of the claim has been allowed against the estate and classified, such creditor is entitled to the same dividend as other creditors of the same class, without regard to the result of pending suits against such other parties.

[Ed. Note.-For other cases, see Election of

Remedies, Cent. Dig. § 12; Dec. Dig. § 7.*]
Appeal from District Court, Jackson
County.

In the matter of the estate of Albert Sar-
bach. From an order allowing a claim of the
Fidelity & Deposit Company of Maryland,
Carrie Sarbach appeals. Affirmed.

I. T. Price, Charles Hayden, and Crane & Woodburn Bros., all of Holton, for appellant. Garver & Garver, of Topeka, for appellee.

In view of these statutes, which were in force at the time covered by the record, it would seem that the township trustee who, with his township, had been sued both for injunction and for $1,000 damages, on his own behalf and on behalf of the township might properly stipulate to end the litigation without the recovery of any damages by making certain changes in the ditches set forth in the agreement. Such stipulation appears to have been made upon due consideration, and to have met the approval of counsel for all the parties, and to have been followed by a dismissal of the cause in accordance therewith. To set aside the judgment was in effect to avoid the stipulation, and we WEST, J. Carrie Sarbach is administracannot discover what power the trial court trix of the estate of her deceased husband, had to make the order without any showing Albert Sarbach, with debts amounting to over of fraud or collusion, but merely upon the $76,000; the estate being insolvent. Having request of the defendants. What appeared collected in about $32,700, she petitioned the to be a complicated local controversy seems probate court for an order of distribution to have been amicably adjusted by all con- among the undisputed claims and was directcerned on terms apparently fair and rea-ed to pay 25 per cent. upon all which had sonable. The township was a party to the been allowed except that of the Grand Lodge stipulation and by its managing officer sign- of Masons, which was ordered to be held ed it, and, although the motion of defend; in abeyance until it could be determined ants to set it aside alleged that it was improvidently made and was highly prejudicial to the interests of the township, we cannot understand how the township itself, the trustee, and road overseer, as well as the adjoining landowner, could well make this allegation within a few days after having signed such a stipulation, and it is still more difficult to see how the mere allegation, unsupported by any proof whatever, could justify absolving the parties from their stipulation and set aside a judgment which had been entered in pursuance thereof.

how much, if anything, should be recovered by the lodge in its suits against various banks and individuals. From this order an appeal was taken to the district court, where the administratrix was ordered to pay without regard to the pendency of the cases referred to. From that order this appeal was taken. The claim of the Grand Lodge was for moneys claimed to have been received by Sarbach as Grand Treasurer with which he was chargeable at the date of his death. Subsequent to the allowance of this claim, suits were brought against certain banks and [2] The Code, § 596 (Geń. St. 1909, § 6191), persons to recover various sums alleged to authorizes the vacating of a judgment at or have been wrongfully paid or received by after the term, but only upon grounds ex- them out of the trust fund in possession of pressly mentioned. Vail v. School District, Sarbach as Grand Treasurer in some of 86 Kan. 808, 122 Pac. 885; 23 Cyc. 889-896. which cases judgments were recovered and *For other cases see same topic and section NUMBER in Dec, Dig. & Am. Dig. Key No. Series & Rep'r Indexes

the circumstances the question of plaintiff's alleged contributory negligence was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

Appeal from District Court, Neosho County. Action by Andrew P. Westine against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. R. Smith, O. J. Wood, and A. A. Scott, of Topeka, for appellant. Farrelly & Evans, of Chanute, for appellee.

WEST, J. The plaintiff, a brakeman in the employ of the defendant, was, at the time of the injury, engaged in taking signals from his conductor, who was at the rear of a train about 15 or 16 cars away, and communicating them to his engineer. It was about 7:40 o'clock p. m. on July 17th. He was walking south on the main track on which a passenger train was backing in from the north; the conductor thereof being on the end of the rear car. The jury found, among other things, that when Westine stepped upon the track the passenger train was about 150 feet north and was equipped with air and air brakes; that its conductor was on the rear end of the train and in charge of the air brake, and could have seen Westine about 150 feet before he was struck; that under the facts and circumstances he could have seen the plaintiff on the track and observed and appreciated that he was unaware of the approach of the train and unconscious of his peril, in sufficient time to have stopped the train before striking him;

In view of the findings referred to, which were the result of the second trial, the rule already announced applies even more clearly than before.

The judgment is affirmed. All the Justices concurring.

(87 Kan. 745)

STATE v. TERRILL. (Supreme Court of Kansas. July 6, 1912.)

(Syllabus by the Court.)

1. FALSE PRETENSES (§ 7*)-FALSE REPRESENTATIONS-SUFFICIENCY.

The fact that some of the false representations made by a defendant, who was convicted for obtaining money by false pretenses, did not come within the condemnation of the may have been mere opinions and some that statute, is not fatal to the conviction, where false representations were made by him which contributed to some material extent in inducing the owner to part with his money.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. 88 5-12, 25; Dec. Dig. § 7.*1 2. FALSE PRETENSES (§ 4*)-FALSE REPRESENTATIONS-SUFFICIENCY.

A false representation, made with intent to cheat and defraud another, by which money is obtained, is a false pretense within the meaning of section 94 of the Crimes Act (Gen. St. 1909, § 2584), whether it is oral or in writing.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 1; Dec. Dig. § 4.*]

3. FALSE PRETENSES (§§ 31, 49*) - INFORMATION EVIDENCE.

The information examined, and held to state an offense under the statute, and it is further held that there is sufficient testimony to sustain the conviction.

[Ed. Note.-For other cases, see False Pre

tenses, Cent. Dig. §§ 38-41, 62; Dec. Dig. 88

31, 49.*]

Appeal from District Court, Pawnee County.

George H. Terrill was convicted of obtaining money by false pretenses, and appeals.

Affirmed.

G. Polk Cline, of Larned, and Chas. A. Baker, of Kinsley, for appellant. J. S. Dawson, Atty. Gen., W. H. Vernon, of Larned, and S. N. Hawkes, of Topeka, for the State.

that the conductor could have stopped the train within 15 feet by the exercise of ordinary care and prudence; that by applying the air on the cab of the engine it could have been stopped within 10 feet; that the train which struck the plaintiff dragged him 30 feet. The appellant contends that even with these findings contributory negligence was shown, and that the plaintiff could not in law recover. When the case was here before (84 Kan. 213, 114 Pac. 219) it was decided: "A question of contributory negli JOHNSTON, C. J. George H. Terrill, the gence arising upon the failure of a brakeman appellant, was convicted of obtaining $400 to look for an approaching train while ac- from Mrs. M. L. Foss by means of false tively engaged in giving signals for the move- pretenses. In the information it was allegment of his own train, and while giving ed that Mrs. Foss was the beneficiary in necessary attention thereto, is held, under a policy of insurance issued by the Knights the evidence in this case, to be one of fact and Ladies of Security, and that, with infor a jury." It was there said that, while tent to cheat and defraud her, appellant repthe plaintiff knew that the passenger train resented to her that the policy had been isshould come in at about the time of the in- sued irregularly and that the only way to jury, "it still remained for a jury to de- obtain the money due on the policy was termine whether the plaintiff ought, in the through the assistance of the appellant and exercise of reasonable prudence, to have one Erdman by paying them $400, and that, looked out for the expected train, in view of believing his representations to be true, she the nature of his duties and the importance paid him that amount. It is then alleged of attending to the work of removing his that the representations were untrue and own train to the siding, and the dangers to known by him to be untrue when made. It be apprehended." 84 Kan. 221, 114 Pac. 222. | is contended on this appeal that appellant For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 125 P.-5

finding that it was an honest mistake. Again, as to the membership in the lodge, the appellant himself certified in writing that Foss was initiated into the lodge on January 13, 1911, and this certificate was verified by appellant as well as by the president and financier of the lodge. It is true that on the trial appellant testified that Foss was not initiated into the lodge, but he formed that opinion, he said, because he had been so informed and had not seen him there. He was compelled to say, however, that he did not really know whether Foss was a member of the lodge or not. The jury probably concluded that the sworn statement first made that Foss was a member, supported, as it was, by the official statement of the officers of the lodge, was more reliable than the testimony given when he was on trial, and that he was admitting the perpetration of one fraud in order to escape punishment for another that was charged against him. It cannot be said. therefore, that there was an acknowledged fraud against the society; but, on the other hand, the jury might well have determined that a valid policy was issued, that Foss had paid six assessments on the policy, and that the books showed that he was in good standing in the society when he died.

was, in fact, convicted of an offense other | dition, the testimony warranted the jury in than the one charged against him; that his representations and acts may have made him liable to conviction for defrauding the insurance company, but, as the company did not complain of his fraud, no one else could, and, at any rate, the testimony did not show that a fraud was committed on Mrs. Foss. His version of the testimony is that M. L. Foss, who was insured, was in bad health, and that appellant induced him to take out a policy and accompanied him to the office of Dr. McCurdy, who first examined Foss and refused to pass him. He was at once examined by Dr. Ewing, who reported favorably on the application, and then papers were accordingly made out and forwarded to the home office, where the application was approved and a policy of insurance issued. Terrill further claimed that Foss was not initiated in the local lodge; that the lodge would not receive him as a member; that six months after the policy was issued Foss died from a disease of the heart, a condition which Dr. McCurdy found when he examined him; that Terrill, knowing of the alleged fraud in the issuance of the policy, and having participated in it, and knowing also that Foss was not received into the local lodge, represented to Mrs. Foss that she could not obtain the insurance except with the aid of Erdman and himself, who were respectively president and secretary of the local lodge, and that if she would give them $400 they would make out and sign the necessary certificates and papers by which the $1,400 mentioned in the policy would be paid; that this was done, and, when the insurance money was received, he was given $400 and gave one-half of that amount to Erdman.

The testimony in the transcript, which is more complete than in the abstract, does not warrant the inferences drawn by appellant nor his theory of the facts. There was a fair basis for the jury to find that Foss honestly applied for and obtained the policy; that he was in fairly good health; that, while the doctors disagreed as to his condition, the examination of Dr. Ewing, who appears to have been a reputable physician, was not perfunctory, but was honestly made and the risk honestly approved. Appellant in his testimony states that, when he advised the taking out of the policy, he did not have the death of Foss in view and had no personal knowledge of his bad health. The evidence tends to show that, about eight years before the policy was issued, Foss had an attack of rheumatism, but that, other than the rheumatic attack, he was in good health when the policy was taken out. There was nothing to show that any facts as to his health or history were concealed from the medical examiner or misrepresented by him, and, while the doctor who passed on

[3] An offense was alleged in the information. In effect, it charged appellant with falsely and fraudulently representing that the policy was irregularly obtained, and that, to overcome this irregularity, the assistance of appellant and Erdman was necessary when, as a matter of fact, the policy was valid and the beneficiary was entitled to the insurance. Under the testimony of the state, the policy was valid, and Mrs. Foss, who paid $400 in reliance upon the false representations, had a clear right to the insurance. So far as the evidence shows, initiation into the local lodge is not a condition precedent to the issuance of the policy. In such societies the policy is frequently issued before initiation, and, unless there was an invalidating provision in the laws of the society or in the contract itself, the society could not escape liability on a policy actually issued, where assessments had been received and kept, as in this case, on the mere ground that the insured had not gone through the initiatory ceremony in a local lodge.

[1] The fact that some of appellant's representations may have been mere opinions, or that a part of the representations by which Mrs. Foss may have been induced to give up the $400 did not come within the condemnation of the statute, is not fatal to the conviction. It is enough if false representations which are within the statute were made and which contributed to some material extent in inducing Mrs. Foss to part with

is not necessary, to constitute the offense of any defect in the materials, but by reason of obtaining goods by false pretenses, that the negligence in the manner in which they are put owner has been induced to part with his injured who had nothing to do with the preptogether, and in consequence an employé is property solely and entirely by pretenses aration of the apparatus, and had not sufficient which are false; nor need the pretenses be knowledge or experience to enable him to the paramount cause of delivery to the pris-judge of its safety, the employers are liable for the results of the foreman's negligence. oner. It is sufficient, if they are a part of [Ed. Note.-For other cases, see Master and the moving cause, and, without them, the Servant, Cent. Dig. §§ 449-474; Dec. Dig. § defrauded party would not have parted with 190.*] his property." In re Snyder, Petitioner, etc., 17 Kan. 542, Syl. p. 3. See, also, State v. Cowdin, 28 Kan. 269; State v. Gordon, 56 Kan. 64, 42 Pac. 346; State v. Briggs, 74 Kan. 377, 86 Pac. 447, 7 L. R. A. (N. S.) 278, 10 Ann. Cas. 904; State v. Hetrick, 84 Kan. 157, 113 Pac. 383, 34 L. R. A. (N. S.) 642.

[2] There is nothing substantial in the claim that the false pretenses must be a token or writing or some pretense in that form. The essential feature of the offense is the character and not the form of the false pretense. Within the meaning of the statute (section 94 of the Crimes Act), any false pretense, whether oral or in writing, by means of which money or personal property is fraudulently obtained, is an offense.

Appeal from District Court, Chautauqua County.

Action by Frank Henry against the Kaw Boiler Works, a copartnership composed of F. G. Palmer and T. B. Gilbert. Judgment for defendant, plaintiff appeals. Reversed.

W. H. Sproul and J. A. Ferrell, both of Sedan, for appellant. W. E. Ziegler, of Coffeyville, for appellee.

MASON, J. Frank Henry sued F. G. Palmer and T. B. Gilbert, a partnership engaged, under the name of the Kaw Boiler Works, in the business of constructing metal tanks, on account of personal injuries received while in their employ. A demurrer to his evidence was sustained, and he appeals.

There is complaint of statements made by The evidence tended to show these facts: the county attorney in his argument, and al-A foreman of the firm was engaged, with so that things not in evidence were considera number of other workmen, including the ed by the jury; but it is hardly possible plaintiff, hired by him, in the erection of a that any of these could have affected the tank, 43 feet in diameter and 25 feet high, verdict or prejudiced the appellant.

There is some criticism of rulings of the court in giving and refusing instructions; but we think the case was fairly submitted to the jury, and we find nothing substantial in the objections of appellant.

The judgment is affirmed. All the Jus tices concurring.

TION FOR JURY.

Where an employé is injured by reason of the breaking of a pole, constituting a part of a hoisting apparatus, and formed by screwing together two joints of well casing, evidence that the threads were rusted, and after the accident were found to be stripped off so far as they had been engaged, is sufficient to take to the jury the question whether the employers were negligent in furnishing defective material

for the construction of such apparatus.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046–1050; | Dec. Dig. § 286.*]

constructed of curved sheets of steel 5 feet wide and 8 or 10 feet long, weighing 400 or 500 pounds. For the purpose of raising the sheets composing the top ring, the men, under the direction of the foreman, prepared a hoisting apparatus the principal feature of which was a single pole, which they called a gin pole, composed of two joints of well casing 4 to 6 inches in diame ter, screwed together at the ends. As the last sheet was being hoisted into place, by means of a block and tackle fastened to the top of the gin pole, the plaintiff held one end, while the other was being swung into position. The gin pole broke in two where the pieces were fastened together, and the sheet of steel fell, striking the plaintiff and causing him to drop to the ground from the scaffold on which he stood. One piece of the gin pole was screwed into the other between half an inch and an inch, although threads were cut for about three inches. No block or brace was placed inside of the casing. In the fall the threads were stripped off as far as they had been engaged. Elsewhere they were rusty.

The casing was old and rusty. The plaintiff was not skilled in the work of building tanks. He had never before handled similar steel sheets or worked He did not around a derrick of any kind. know how much weight the gin pole would stand or how much guying was necessary He had nothing to do with to sustain it.

2. MASTER AND SERVANT (§ 190*)-INJURIES TO SERVANT-NEGLIGENCE OF FOREMAN. Where, under the direction of a foreman who has complete charge of the building of a steel tank, a hoisting apparatus is prepared by the workmen, which is unsafe, not because of the making of the gin pole. During its For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes