ents in the present cases, held to be sustained by | $500 to put in his business, and asked his sufficient evidence. Syllabus by the Court.) Error from district court, Marshall county; E. HUTCHINSON, Judge. W. J. Gregg, for plaintiffs in error, D. D. Douglas & Co. and G. W. Chase & Son. Geo. C. Brownell and W. J. Gregg, for plaintiffs in error John W. Allen & Co. Calderhead & Patterson, for defendant in error. JOHNSTON, J. Three actions were begun In the district court of Marshall county against D. Fuget,-one by John W. Allen & Co., another by D. D. Douglas & Co., and still another by G. W. Chase & Son. In each an order of attachment was obtained; it being alleged that the defendant had sold, conveyed, and otherwise disposed of his property with the intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts, and was about to dispose of his property with the same fraudulent intent. A motion was made by the defendant in each case to dissolve the attachment, and one of the reasons for the dissolution was that the facts stated in the affidavit as grounds for attachment are not true. A hearing was had upon these motions, upon the testimony submitted in the case of John W. Allen & Co., when the attachments were dissolved. Exceptions were taken to these rulings, and they are now assigned for error here. The three cases are submitted upon the same argument and record, and will be disposed of by a single opinion. There was considerable testimony offered concerning the conduct of the defendant, and the good faith and honesty of his business transactions, upon which the court found in his favor, and we are only to inquire whether the testimony is sufficient to sustain those findings. It appears from the evidence that Fuget was a physician and druggist, who practiced his profession and carried on a drug business at Vermillion. The drug business was being carried on in a business-like way, and no sales made except in the usual course of trade. The stock had not been allowed to run down, but was kept up to the standard of a country drug-store. The goods were worth about $1,000, and, while the amount of the defendant's indebtedness is not clear ly shown, one witness put it at from $500 to $600. The business was small, but considering that it was a country drug-store, and only a small stock was carried, it was said to be fairly profitable. His practice as a physician was reasonably remunerative. He was, however, unable to meet the claims of the plaintiffs when they became due, but at the time of the attachments was endeavoring to collect and obtain money with which to pay his indebtedness. The attachments were levied in his absence, during which time he visited St. Joseph, and paid a liability of about $100. The main ground| urged to support the attachments is that he had given a mortgage upon this stock to his brother for $500, whereas the actual indebtedness was only $350. It appears that this mortgage was given long before he became indebted to the plaintiffs, and also that it had been filed in the office of the register of deeds. He wanted to borrow brother in Pennsylvania to loan him that amount, or, if he did not have it, to borrow it for him. To obtain the money he executed a note for $500, and a mortgage upon his stock to secure its payment. His broth er declined to borrow the money for him, but loaned him several sums, from time to time, until they amounted to $350, and would probably have loaned the balance to him in time, or as soon as he could spare the amount. At the end of a year the mortgage was renewed, as though the full amount was due. This note and mortgage were permitted to remain in the hands of the defendant for a time, and when the creditors threatened to attach his property he warned his brother of his trouble, and asked him to forward his claim, and to protect himself. The fact that the mortgage was given for a larger amount than had actually been borrowed from the brother is not conclusive of fraud, but is open to explanation as to whether it was taken or given with any fraudulent intention on the part of the mortgagor or mortgagee. It could not have deceived the creditors in the present case, for it had been executed nearly a year before the plaintiff's debts were contracted, and had been made a matter of record. There was no concealment of facts by the defendant, no misrepresentation at the time the goods were purchased, and even at the time the attachments were levied the defendant was negotiating a loan on his home for the payment of his debts. It is unnecessary to go into a detailed statement of the evidence offered, as we cannot retry the facts, and determine on which side the preponderance of the evidence is. It was mostly oral testimony, and we think it abundantly sustains the findings of the court in favor of the good faith and absence of fraud on the part of the defendant. The judgments of the district court in the three cases will be affirmed; all the justices concurring. PLANT et ux. v. THOMPSON et al. (Supreme Court of Kansas. Dec. 7, 1889.) REAL-ESTATE AGENTS-COMMISSIONS. 1. It is sufficient to entitle real-estate agents to their commission if a sale is effected through their agency as its procuring cause, although the if by their exertions the purchaser and owner are sale may be made by the owners of the property, brought together, and the sale results therefrom. 2. The owners of land cannot evade all liability of paying their agents commissions for the sale of land for the reason that they sold for a sum less than the price given their agents to sell, where the reduction is made of their own accord, and to escape payment of the commissions, when the agents were the means of bringing the owners and purchaser together, and the sale resulted therefrom. (Syllabus by Holt, C.) Commissioners' decision. Error from district court, Shawnee county; JOHN GUTHRIE, Judge. This action was commenced by Thompson and Miller, as plaintiffs, to recover of D. A. Plant and wife their commission for a sale of real estate. The plaintiffs were partners, selling real estate on commission. The defendants placed in their hands in January, 1887, a farm in Shawnee county for sale, the plaintiffs say for the price of $3,750; the defendants, $4,000. The farm In Lloyd v. Matthews, 51 N. Y. 124, in a was subsequently sold to George Kellam case similar to this one, the court says: "It by Mrs. Plant for $3,500. The plaintiffs, is sufficient to entitle a broker to compenshortly after the farm was left with them sation that the sale is effected through his for sale, called Kellam's attention to it, agency as its procuring cause; and if his and at that time he said he had a broth-communications with the purchaser were er-in-law visiting him from Iowa who might buy the farm. Shortly afterwards the brother-in-law returned to Iowa without purchasing any land in Kansas. On the 21st of March, 1887, Mrs. Plant called at plaintiffs' office, and said, as there was a mortgage of $1,200 upon this land coming due the 28th of the month, she was very anxious to sell it at once, and said she would like to put the land in other agents' hands also, and would try and sell it herself. Miller, one of the plaintiffs, told her that would be all right; and that, if she sold it herself, they would not charge her any commission, unless she sold to Kellam. In that event, they should claim their commission. Mrs. Plant denies this part of their conversation. Two or three days afterwards, Mrs. Plant called upon Kellam, and sold the land to him for his sister and her sons, although the deed was made directly to Kellam and one E. H. Blake. Mrs. Plant herself states that she was first informed that Kellam wished to buy the farm through the plaintiffs. Kellam states, however, that he had entered into no negotiations with the plaintiffs concerning it, and that the land had passed from his mind at the time Mrs. Plant called upon him. A judgment was rendered in favor of plaintiffs for $175. Defendants moved for a new trial, which was overruled. They bring the case here for review. G. N. Elliott, for plaintiffs in error. Hazen & Isenhart, for defendants in error. * the cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover." In Arrington v. Cary, 5 Baxt. 609, it is said: "When a broker or agent is employed to sell real estate, and produces a person who ultimately becomes a purchaser, he is entitled to his commissions, although the trade may be effected by the owner of the property." Also, from Carter v. Webster, 79 I. 435, we quote a part of the opinion, which explains itself: "Plaintiff engaged Bruner to secure a purchaser for defendant's land, and, according to the custom that prevails, Bruner induced Gun, another real-estate agent, to interest himself to find a buyer for the land. Gun did mention the fact this property was for sale to Mr. Mears, and through the information thus obtained Mr. Mears, Sen., went directly to defendant, and bought the property of him. The effect of what plaintiff did was to present to defendant a person who made an offer for the property that he was willing to, and did, accept. This was all plaintiff undertook to do, or all he had to do to earn his commissions." In Royster v. Mageveney, 9 Lea, 148, it is said: "If a broker is employed to sell property, and he first brings the property to the notice of the purchaser, and upon such notice the sale is effected by the owner, the broker is entitled to commissions." The court,in Tyler v. Parr, 52 Mo. 249, speaking by Judge WAGNER, said: "The law is well established that, in a suit by a real-estate agent for the amount of his commisproperty and concluded the bargain. If, after the property is placed in the agent's hands, the sale is brought about or procured by his advertisement and exertions, he will be entitled to his commissions." Sussdorff v. Schmidt, 55 N. Y. 319; Lincoln v. McClatchie, 36 Conn. 136; Shepherd v. Hedden, 29 N. J. Law, 334; Winans v. Jaques, 10 Daly, 487; Goffe v. Gibson, 18 Mo. App. 1; Anderson v. Cox, 16 Neb. 10, 20 N. W. Rep. 10; Bell v. Kaiser, 50 Mo. 150. See, also, Williams v. Leslie, 111 Ind. 70, 12 N. E. Rep. 102; Doonan v. Ives, 73 Ga. 295; Dolan v. Scanlan, 57 Cal. 261; Armstrong v. Wann, 29 Minn. 126, 12 N. W. Rep. 345; Fitch, Real HOLT, C., (after stating the facts as above.) In the petition in error the over-sion, it is immaterial that the owner sold the ruling of the motion for a new trial is not assigned as an error, but there is no point made upon this plainly and squarely in the briefs of plaintiffs. If the attention of defendants had been called to it, that defect might have been cured in this court; in the manner it is presented in the briefs, we shall disregard it. The defendants claim there was error in giving and refusing instructions, and that the verdict is contrary to the evidence. There is really but little conflict in the evidence brought before us. Taking even the uncontradicted testimony, we believe the judgment was correct; and, without following specifically the objections of defend-Est. Ag. 119, 120. ants, we will give our reasons for affirming The claim of the plaintiffs for commission it. From the testimony of Mrs. Plant, it appears that her attention was first called to Kellam as a probable purchaser by the plaintiffs. To be sure, they entered into BO negotiations with him for a sale, and it was sold for a less price than that given the agents. It was also sold by her without any aid from the plaintiffs, except that her attention was directed to Kellam by them. This view of the case is as favorable to the defendants as the testimony will justify; and yet, under the circumstances, the plaintiffs were entitled to their commission. They introduced the purchaser to the seller, and by that means the sale was made. is not affected because the defendants saw fit to sell the same land for a price less than they gave it to plaintiff to sell. In this connection, Mrs. Plant testified: "I thought, if I could make the sale myself, I could sell it cheaper, and would not have to pay commission." The defendants will not be allowed to take advantage of their introduction to the purchaser by plaintiffs, and reap the benefits of the sale made to him in consequence, and then escape all liability of paying them their commission because they sold the land for a sum less than the price given their agents, where the reduction was made of their own accord. Stewart v. Mather, 32 Wis. 344; Kock v. Emmerling, 22 How. 69; Woods v Ste- | for the steers, executed a note to the comphens, 46 Mo. 555; Reynolds v. Tompkins, pany for $10,625, and also a chattel mort 23 W. Va. 229; Lincoln v. McClatchie, su- gage on the steers purchased to secure the pra; Whart. Ag. § 329. We recommend payment of the indebtedness. The steers that the judgment be affirmed. are described in the mortgage as follows: "250 Arizona steers, 3, 4, and 5 years old, PERCURIAM. It is so ordered; all the jus- branded T and W' on the left hip, and also tices concurring. various other marks and brands; this being the same lot of cattle purchased by the first party of the Interstate Galloway Cat INTERSTATE GALLOWAY CATTLE Co. v. tle Company." This mortgage was duly MCLAIN. (Supreme Court of Kansas. Dec. 7, 1889.) CHATTEL MORTGAGE-DESCRIPTION. 1. A cattle company had a herd of 361 steers together, and sold M. 250 of the average of the herd, but no selection or separation was made; and M., to secure the payment of the purchase price, mortgaged them back to the seller, describing them by marks and brands. About four months afterwards, and before any rights of others had intervened, the cattle company sold the remainder of the herd to M., and took a mortgage on them to secure the purchase price of the same, in which the cattle were described by the marks and brands which they bore. The mortgages were intended to cover the entire number purchased. Each upon its face was valid, and both were filed in the county where M. resided. The cattle so purchased and mortgaged were all that M. owned, or had in his possession. In a controversy between the cattle company and a third party, who claims to have acquired an interest in the cattle after the mortgages were executed and filed, and while they were in force, it is held, that the fact that there was no separation of the 250 steers from the balance of the herd when the first purchase and mortgage were made, does not, under the circumstances, render the mortgages void; that the subsequent purchasing and mortgaging of all the cattle made a separation unnecessary; and that any defect in the first mortgage for lack of such separation was cured by the subsequent action of the parties, which removed all doubt as to the identity of the property sold and mortgaged. 2. The testimony examined, and held to be such that it should have been submitted to the jury, for In filed in the office of the register of deeds of Lincoln county, on November 21, 1885. accordance with the arrangement the cattle were driven by Martin to Lincoln county. In March, 1886, the cattle company sold the remaining part of the herd to Martin, being 109 head; two of the cattle having strayed away while being driven from Kinsley to Lincoln county. For these Martin executed a note for $4,251, due in one year after date, and at the same time executed a chattel mortgage, to secure its payment, upon the steers sold. The note and mortgage were dated November 9, 1885,-the same day upon which the 250 steers were sold. This was done upon agreement of the parties, in order to cover the cost of feeding the 109 head from November 9 until the time of the second sale. They were described in the mortgage as follows: "109 Arizona steers, 3, 4, and 5 years old, branded 'T & W' on the left hip, also, various other marks and brands; this being the same lot of cattle purchased by the said first party of the said Interstate Galloway Cattle Company." This mortgage was filed in the office of the register of deeds of Lincoln county on August 12, 1886. In October, 1886, the cattle were moved from Lincoln county to Jewell county, for the alleged purpose of feeding them there. The general manager of the cattle company, learning this fact, thought it was necessary that a notice of the mortgage should be on file in Jewell county, and obtained from Martin a chattel mortgage on the whole herd of cattle, which had then been reduced to 347 head, Action of replevin, brought by the Inter- in which they were described as in the forstate Galloway Cattle Company against J. mer mortgages; and it was there stated K. McLain, in the district court of Wyan- that it was "the intention of this mortdotte county, to recover the possession of gage to convey to the Interstate Galloway 347 steers. On November 9, 1885, the cattle Cattle Company the lot of cattle purchased company was the owner of 361 steers which by the said Martin of said Interstate Galwere being held together in Edwards coun- loway Cattle Company, November 9, 1885.” ty, and the company tried to sell the whole This mortgage was filed in the office of lot to Samuel Martin, of Lincoln county. the register of deeds of Jewell county on He was unwilling to buy all, but pur- October 21, 1886. Indorsed on the mortchased 250 of the number; and it was ar- gage was the affidavit of Martin that he ranged between the parties that the remain-was the lawful owner of the property deing 111 head should be driven to Lincoln county, and kept with those purchased by Martin. The following is the receipt then executed by Martin: "Kinsley, Kansas, Nov. 9th, 1885. Received of the Interstate Galloway Cattle Company 111 head of Arizona steers, 3, 4, and 5 years old. These steers are an average lot of 361 head, which I this day start to Lincoln county, Kansas. Two hundred and fifty of the average of said 361 head I have purchased; and I hereby agree to keep them until called for, within 30 days, with my 250 head, and receive for payment for the keeping of the same an average price of the cost per head of the entire lot. [Signed] SAMUEL MARTIN." At the same time, Martin, who had not paid its consideration. (Syllabus by the Court.) Error from district court, Wyandotte county; O. L. MILLER, Judge. scribed therein. The cattle were held and being fed upon the farm of one Charles H. King, in Jewell county; and, in the latter part of October, it is alleged that King negotiated a loan of from $8,000 to $10,000 of the defendant, McLain, and on November 1 it is claimed that defendant made a loan to King, taking a mortgage from King on these cattle. Early in December, 1886, the cattle company, becoming suspicious, employed a man to watch the cattle, and see that they were not removed. About December 20 the defendant went from Kansas City to Jewell county, took the cattle from the premises of King, and drove them rapidly to Hardy, Neb., where they were loaded on the cars in the night-time, and shipped through on a special and speedy run over of the money derived from the loan made the Burlington & Missouri River Railroad to Kansas City. The cattle company, learning of this fact, pursued the cattle, and found them at the Kansas City stock-yards, on the Kansas side, and immediately took steps to obtain possession of them. They were then driven on the Missouri side, where they were followed; but before plaintiff could get service of replevin papers they were driven back to the Kansas side, where this proceeding was instituted, and the service of the writ made. Defendant gave a redelivery bond, and retained possession of the cattle. When the cause came on for trial, these and other facts were of fered in testimony, when the defendant demurred to the evidence on the ground that it did not show facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment given in favor of the defendant. The plaintiff excepts, and brings the case here. Gardner Lathrop and Charles W. Clark, for plaintiff in error. Hutchings & Keplinger and J. H. Mechem, for defendant in er ror. by McLain. It is claimed by McLain that he made the loan to King, whom he did not know, without seeing the cattle, or without examining the records; and he further states that "it is a rare thing to make an examination in Kansas." In addition to the notice disclosed by the records in Lincoln county, it appears that an additional mortgage was given by Martin to the plaintiff after the cattle had been removed to Jewell county, and that mortgage was on file before any of the alleged negotiations had occurred between King and McLain. The conduct of Martin and King casts suspicion on them; and the time and manner in which the cattle were shipped by McLain, as well as the shifting of them from one side of the state line to the other when discovered, should be considered in determining the good faith of their transactions. There was testimony tending to show that the cattle were worth about $18,000 at the time they were taken by McLain, while, according to his own testimony, the amount of his lien was $10,000. The plaintiff did not even get the benefit of the surplus under the judgment that was JOHNSTON, J., (after stating the facts as given. In our opinion the demurrer to the above.) The testimony held by the court evidence should have been overruled. If the to be insufficient to send the case to the mortgages given by Martin to the plaintiff jury showed that the 250 steers sold to can be upheld, then both King and McLain Martin on November, 1885, and the 109 are charged with notice of the liens which steers sold in the following March, were they created, and the plaintiff is entitled undoubtedly the property of the Interstate to recover. To sustain the ruling of the Galloway Cattle Company at the times of court, it is urged that because there was no sale. It further disclosed that the company separation at the time the sale was made had never received payment for the cattle to Martin, and the mortgage executed by sold. When the first lot of 250 steers was him, on November 9, 1885, the mortgage is sold, Martin executed a mortgage on them invalid. It is true that the 250 steers were to secure the payment of the purchase mon- not separated from the rest of the herd at ey, in which the cattle were described by that time. There were 361 in the herd, and marks and brands; and all must concede Martin purchased 250 of an average of the that the mortgage on its face was valid. 361, agreeing to drive the remaining 111 to When a sale of the balance of the herd was his place in Lincoln county, and keep them made, in March, 1886, a mortgage was until called for. For the plaintiff, it is conmade to secure the payment of the purchase tended that by this agreement they held the money, and the cattle were then properly cattle as tenants in common, and the interdescribed by marks and brands; and that est of each was fixed in proportion to their mortgage appears on its face to be valid. respective shares; that is, Martin owned 250The two mortgages covered all the cattle 361 and plaintiff 111-361 of the herd; and sold by the plaintiff to Martin, and, so far therefore no difficulty could arise in the as the testimony shows, all the cattle which matter of selection. If it is granted, howMartin owned, or had in his possession. ever, that the mortgage first given was inThe mortgages were taken in good faith, valid in law, it would at least constitute a to secure the payment of the purchase valid equitable lien, as between the immedimoney, which has never been paid; and ate parties, which could be enforced in acthe mortgages have never been assigned, cordance with their intention. Long before canceled, or satisfied by the plaintiff. On the rights of King or McLain, if they had November 1, 1886, when the defendant claims any, intervened, the second sale was made, to have acquired an interest in the cattle, and Martin became the owner of the entire the plaintiff's mortgages were on file in the herd. The mortgage then made covered office of the register of deeds in Lincoln the balance of the cattle, and the two tocounty, where Martin resided; and any one gether covered the entire herd. After he beexamining the records would have discov-came the owner of all, and had mortgaged ered that the mortgages were then in force all, the necessity for separation no longer and apparently valid. existed. No rights intervened between the The nature of King's interest in the prop-filing of the first mortgage and the execuerty is not clearly shown. Martin claimed tion of the second; and the first, creating that he drove the cattle to Jewell county at least an equitable lien, was cured of any to be fed, and it seems that some of his em- defects in the description, or for lack of sepployes continued to care for the cattle after aration, by the subsequent action of the their removal to King's ranch. There is parties. The agreement and action of the testimony tending to show that King was parties indicate that they intended Martin informed of the mortgages given by Mar- to become the owner of all the steers, and tin to the plaintiff, and some testimony that he should mortgage all to secure the tending to show that Martin obtained part payment of the purchase price; and, by re lation, the second mortgage cured the inva- in a roving herd of cattle that he had nevlidity of the first. The mortgage on the 109 er seen, the owner of which he does not head was dated at the same time as the know, and without examining the records, one first given; Martin taking them as of to ascertain whether this stranger had a November 9, 1885, upon the same terms and title to the cattle, or whether there were conditions that the first were purchased, any existing liens upon them. The contenand relieving the plaintiff from any charge tion of the defendant, that the lack of sepfor feeding the 109 head while Martin had aration when the first purchase was made them in his possession. We are only fol- invalidated the mortgages, if good, goes too lowing the purpose and action of the par- far for his purpose, and virtually denies ties when we treat their several actions as his own claim of title. If that fact rena single transaction. If the company had dered the mortgage void, it would for the sold 250 steers out of the herd to Martin on same reason invalidate the sale to Martin; one day, and taken a mortgage back on and, as a person cannot sell or mortgage that number, and the following day had property which he does not own, neither sold the 111 steers, and taken a mortgage Martin nor King could convey any interest on them, it would hardly be questioned but in the cattle to the defendant. But, as we that it should be treated as a single trans- have seen, the purchase of all the cattle action, and that, as all were mortgaged, no rendered the separation unnecessary, and selection or separation would be necessary. the mortgaging of all removed any doubt As no rights intervened during the time as to what property was intended to be that elapsed between the two sales, the covered by the mortgages. If the defendcase supposed does not differ from the one ant had taken the description contained in we are considering. Taking these transac- the mortgages, and gone to Martin for extions together, as they should be consid-planation, and to the place where the catered, the mortgages include all the steers tle were kept, and there examined them, to sold to Martin, and, so far as the testimony see if they bore the marks and brands deshows, all that he owned, or had had un-scribed in the mortgages, and pursued the der his control; and hence the description inquiries which the mortgages suggested, cannot be regarded as insufficient. Brown he must have been satisfied that the Interv. Holmes, 13 Kan. 482; Shaffer v. Pickrell, state Galloway Cattle Company held an ex22 Kan. 619; King v. Aultman & Co., 24 Kan. isting lien upon the steers offered to him as 246; Mills v.Lumber Co., 26 Kan. 574; Sims v. a security for his loan, and that neither Mead, 29 Kan. 124; Crisfield v. Neal, 36 Kan. King nor Martin had any right to mort278, 13 Pac. Rep. 272; Schmidt v. Bender, gage, sell, or otherwise dispose of them. If 39 Kan. 437, 18 Pac. Rep. 491. All the steers the plaintiff showed upon trial that it which Martin had purchased, or which he owned all or any of the cattle, or had any owned, having been inortgaged, there could interest in them, or in the surplus, over be no difficulty in identifying the property and beyond any claim of the defendant, covered by the mortgages. We may look then the judgment is erroneous. Before the beyond the description in the instruments court can take a case from the jury upon a for purposes of identification. In general, demurrer to the evidence, it "must be able a description which will enable third per- to say that, admitting every fact that is son, aided by such inquiries as the mort-proved which is favorable to the plaintiff, gage itself suggests, to identify the property, is sufficient. If the defendant had examined the records of Lincoln county, as it was his duty to do, he would have found the two mortgages dated November 9, 1885, in which the cattle were described by their ages and the marks and brands which they bore, and wherein it is stated that they are the cattle purchased from the plaintiff. If he had pursued the inquiry suggested by the instrument, he would have discovered that Martin had purchased the entire herd of cattle, and had mortgaged them all to the company, to secure the payment of the purchase price, and that all the cattle which Martin had purchased or held in his possession were those particularly described by marks and brands in the mortgages which he had given. He could not possibly have been deceived in respect to the property intended to be mortgaged, nor could he be prejudiced by the failure to separate the cattle when the first purchase was made. If he had examined the records of Jewell 2. A motion to set aside a judgment in the folcounty, where the cattle were held at the lowing words: "Now comes the defendant, Oliver time the mortgage to him was executed, and Green, by his attorneys, Welch & Welch, and where King, who claimed to be the owner, on the 1st day of October, 1857, in favor of the moves the court to set aside the judgment rendered resided, he would have learned the history plaintiff herein, for the reason that no proper servof the transactions between the cattle com-ice was had on the defendant, Oliver Green, in pany and Martin; but, instead of examin- said suit, "-is a special appearance only. and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the plaintiff, still, the plaintiff has utterly failed to make out some one or more of the material facts of his case." Brown v. Railway Co., 31 Kan. 1, 1 Pac. Rep. 605. The evidence offered clearly tended to establish the issue presented by the plaintiff, and should have been submitted to the jury. The judgment of the district court will therefore be reversed, and the cause remanded for a new trial. All the justices concurring. GREEN V. GREEN. (Supreme Court of Kansas. Dec. 7, 1889.) SPECIAL APPEARANCE. tion of the court does not give the court jurisdic1. A special appearance to contest the jurisdiction of the defendant. Brauner v. Chapman, 11 Kan. 118. ing the records of either Lincoln or Jewell 3. The case of Reynolds v. Fleming, 30 Kan. Counties, as ordinary prudence, even, would 106, 1 Pac. Rep. 61, followed. dictate, he claims to have invested $10,000 (Syllabus by the Court.) |