fer such good title to any third party, even though such third party had actual knowledge of Tyler's mortgage. Whether, therefore, Tyler's mortgage was good or bad,-whether inquiry into its consideration was proper, is immaterial. Grant that that mortgage was valid; that the jury should have been so instructed; and that no inquiry should have been made as to its consideration,-and still, if Weaver was a bona fide purchaser, the verdict should have been what it was. If the only inquiry, therefore, remaining would be whether the court erred in admitting testimony bearing upon the question of the bona fides of this transfer, or erred in its instruction respecting such transfer, or whether the testimony in respect to the consideration of the mortgage, which for the present, we shall assume was improperly admitted, was of a character to unduly influence the jury in determining the question of bona fides of this transfer, these questions, must, we think, all be answered in the negative. We have therefore referred as fully as we deem necessary to the instructions of the court respecting the bona fides of the transfer. We see no ruling as to the admission and rejection of testimony concerning such transfer which is sufficient to justify a reversal of the judgment. We do not mean to affirm that, technically, every ruling of the court, in respect to the admission and rejection of testimony bearing upon this question, was beyond criticism, but we do think that no testimouy of a substantial nature, proffered by either party, was improperly rejected, or that any like testimony was unduly admitted. Hence the errors, if errors they were, were of a trivial nature, and ought not to disturb the judg

ment.

With respect to the testimony impeaching, the consideration of the mortgage, we remark that, so far as the testimony bore directly upon that question, it could not in any manner affect that of the bona fides of the subsequent transfer. The most that can be said against it is that the apparent hesitancy and forgetfulness of the witness Tyler, as to the conversations between himself and George prior to the execution of such mortgage, may have prejudiced the jury and made them slow of credence as to his other testimony. If this be the fact, as possibly it may be, he has only himself to blame. If his forgetfulness was real, the jury may well have doubted his memory of other matters. If it was feigned, they had a right to look with suspicion on the value of his testimony. Of course, in this way, the inquiry into the consideration of the mortgage may have wrought prejudice to the defendants, but we cannot think that under the circumstances it is sufficient to justify us in setting aside the verdict. We cannot believe that the jury were unduly influenced by it as respects the bona fides of the transfer. Our conclusion, on the whole record, is that the finding of the jury in respect to the transfer is unimpeachable, and that there is no error in the record of sufficient moment to justify us in disturbing the verdict. The judgment will therefore be affirmed. (All the justices concurring.)

Where W. contracts with T. to sell to T. a safe in the possession and under the control of L., and contracts that L. shall deliver the same to T., and T. agrees that upon delivery thereof he will pay $15, and L. refuses absolutely to deliver the safe, held, that T. may at once, and without a tender of the $15, commence an action against W. for the damages sustained by T. on account of the failure and refusal of L. to deliver the safe.

Error from McPherson county.

R. F. McGrew, for plaintiff in error.

Frank G. White, for defendant in error.

VALENTINE, J. This was an action brought by Merritt A. Thompson against H. H. Warner, before a justice of the peace of McPherson county, Kansas, to recover $45 as damages for the alleged breach of an executory contract. The plaintiff's bill of particulars reads as follows:

"Merritt A. Thompson, plaintiff herein, alleges that an agreement was made on or about May 26, 1883, by and between H. H. Warner, the defendant herein, through one H. W. Flahavan, who was agent of the said defendant, and this plaintiff, whereby the said defendant agreed to sell to the plaintiff one certain iron fire-proof safe, then in the possession of Loomis Brothers, at McPherson, Kansas, (Loomis Brothers being a firm doing business at McPherson under said name and style.) And further alleges that the defendant agreed to deliver the said safe to the plaintiff after the arrival of a new safe, to be consigned and shipped by railroad to the said Loomis Brothers by the defendant; and appointed the said Loomis Brothers to make delivery to the plaintiff of said safe upon the happening of the aforesaid event. And further alleges that the price to be paid by him was thirty dollars, one-half cash on delivery, and one-half on a credit of three months. Plaintiff further alleges that the new safe to be consigned to Loomis Brothers, as stated aforesaid, arrived at the depot of the A., T. & S. F. R. Co., in the city of McPherson, about the middle of July, 1883, and the said Loomis Brothers were fully informed of the same, and have had ample time and opportunity to have taken possession of the said new safe and to have delivered possession of the said old safe to this plaintiff; but, instead of so doing, they absolutely refused to deliver the said old safe to the plaintiff. Plaintiff alleges that after the arrival of the said new safe, and on or about July 25, 1883, he made demand of the said Loomis Brothers of the possession of the said second-hand safe, but was peremptorily and totally refused, they, the said Loomis Brothers, declaring that they should neither accept the new safe nor let go the old one. Plaintiff alleges that he has at all times stood ready to perform his part of the agreement with the defendant aforesaid, and has done all things necessary and proper to be done on his part in order to carry out the said agreement and to obtain possession of the said safe, but that the defendant has wholly failed on his part to perform his said agreement. And further alleges that the fair value of the said second-hand safe was seventyfive dollars, ($75,) and that he has suffered damage by the defendant's failure

to fulfill his said agreement to the amount of forty-five dollars, and claims a judgment for that amount."

The defendant demurred to this bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action; and the justice of the peace sustained the demurrer. The plaintiff then took the case to the district court upon petition in error, where the judgment of the justice of the peace was affirmed; and the plaintiff, as plaintiff in error, now brings the case to this court and asks that both the judgment of the district court and the judgment of the justice of the peace be reversed.

Passing over the first and second points made by the plaintiff in error in his brief, which points we think are wholly untenable, we shall consider more at length the third point made by him in his brief. The third point is substantially that the plaintiff's bill of particulars did state facts sufficient to constitute a cause of action, and therefore that both the justice of the peace and the district court erred in holding otherwise. Upon this point we think the plaintiff is correct. We think the plaintiff made a good contract for the purchase of the second-hand safe mentioned in the bill of particulars, and under such contract the defendant was bound to deliver the safe, or cause the same to be delivered, to the plaintiff; and for the failure and refusal to so deliver the safe the defendant is liable.

The defendant, however, claims that the entire trouble was caused by the Loomis Bros. and not by the defendant, and therefore that the defendant is not responsible. In this, we think, the defendant is mistaken. The defendant was to deliver to Loomis Bros. a new safe, and was to cause Loomis Bros. to deliver the old one to the plaintiff; and the defendant was responsible for any failure on the part of the Loomis Bros. to deliver the old safe to the plaintiff, whatever may have been the cause of such failure. Possibly, as between the defendant and the Loomis Bros., the defendant has no right to complain. Possibly, the defendant did not fulfill his contract with them. Possibly, under the contract between him and them, they were not bound to accept the new safe which the defendant shipped to them, and were not bound to deliver the old safe to the plaintiff; but, under the contract between the plaintiff and the defendant, the defendant was evidently bound to see that the old safe was delivered to the plaintiff.

The defendant also claims that the plaintiff did not make any tender of the $15 which he was to pay on the delivery of the safe. Now, it was not necessary, under the circumstances of this case, that any such tender should be made; for the safe was never delivered, and no offer was ever made to deliver the same, but, on the contrary, the parties having the same in possession, and representing the defendant, utterly failed and refused to deliver the same. The plaintiff was not bound to do a foolish thing. He was not bound to tender the money for the safe when he knew that the safe would not be de

livered. The defendant, however, claims that this payment was a condition precedent. Now, for the purpose of the case, we might treat it as a condition precedent, and still the plaintiff's bill of particulars would be sufficient. Section 122 of the Civil Code reads as follows:

"Sec. 122. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance."

But we do not think that the payment of this money was a condition precedent. In fact, the delivery of the safe and the payment of the money were concurrent and dependent acts to be performed by the parties contemporaneously; and one was no more a condition precedent than the other; or, if either was more a condition precedent than the other, then, under the allegations of the pleadings, it was the delivery of the safe, and not the payment of the $15, that was the condition precedent. We shall treat the two acts, however, as dependent and concurrent, and in such a case, where one of the parties is ready and willing to perform, and the other is unwilling and refuses, the one who is ready and willing may commence an action at once, without making any formal tender of performance on his part.

We think the plaintiff's bill of particulars stated facts sufficient to constitute a cause of action, and therefore that both the justice of the peace and the district court erred. The judgment of the district court will therefore be reversed, and the cause remanded for further proceedings.

(All the justices concurring.)

(31 Kan. 525)

LANE V. KANSAS CITY, F. S. & G. R. Co.

Filed March 6, 1884.

A railroad company, in operating its road across a public highway, is required to exercise ordinary care and diligence, and is liable for killing cattle, which are rightfully upon such highway, if it fails to exercise such care and diligence.

Error from Miami county.

Beeson & Baker, for plaintiff in error.

Blair & Perry, for defendant in error.

VALENTINE, J. This was an action brought by George W. Lane against the Kansas City, Fort Scott & Gulf Railroad Company, to re

cover damages for negligently killing two of the plaintiff's cows at a public crossing, and appropriating the hides to its own use. The answer was a general denial. Before the trial, the defendant offered to confess judgment for the value of the hides, $8.50, and the offer was declined. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant for the admitted value of the hides. The plaintiff then filed a motion for a new trial, setting forth various grounds, which motion was overruled by the court, and judgment was rendered upon the verdict. To reverse this judgment, and the order of the court overruling the plaintiff's motion for a new trial, the plaintiff now prosecutes a petition in error in this court.

The errors alleged in this court are founded upon the instructions given by the trial court to the jury. The instructions complained of are the sixth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth. The sixth instruction was technically erroneous, but probably the error was immaterial. The eighth was probably correct; but the ninth, we would think, was materially erroneous. It reads as follows:

"No. 9. Under the pleadings and evidence in this action, the defendant is not liable, unless it was guilty of gross negligence with reference to the acts complained of. And such gross negligence must be proven to exist, and to have been the direct cause of the injury set forth in the plaintiff's petition in this action. Gross negligence is the want of slight diligence, and in this action there must have been an absence of even slight care on the part of the defendant before plaintiff can recover."

The plaintiff's petition, besides stating the facts of his case sufficiently, also alleges that the defendant's employes, in killing the plaintiff's cows, "were guilty of gross carelessness and a reckless disregard for the rights of others;" and the evidence shows, among other things, the following: The cows were killed where the defendant's railroad track crosses a public road. The plaintiff's servant was driving them along the public road, towards their home, when, just as they entered upon the railroad track, the engine of a passing train struck the cows and killed them almost instantly. There were circumstances which tended to show culpable negligence on the part of both the railroad company and the plaintiff, though possibly neither was guilty of culpable negligence. We think the evidence was such, however, that the questions whether either was guilty of culpable negligence or not, were questions of fact for the jury, and not questions of law for the court. Then what were the rights of the parties respectively on the railroad track and on the public road where the cows were killed? and what degree of care and diligence was each required to exercise to avoid the injury to the plaintiff's cows? Each undoubtedly had a right to pass over the ground where the plaintiff's cows were killed, and neither was a trespasser there. The plaintiff undoubtedly had a right to have his cows driven along the public highway, and the railrood company also had a right to operate its railroad across the public highway; their