The rulings of the district court cannot be held erroneous. The defendants made no objection to the sale. There was no defect in the notice, nor any irregularity in conducting the sale. No mistake, neglect, or misconduct is charged against the sheriff; nor is it claimed that there was any unfairness or fraud on the part of the purchaser. He appears to have made the purchase openly and in good faith. It is true that the price paid was considerably less than the actual value, but it was not so grossly inadequate as of itself to indicate fraud, or call for the interference of the court. It appears that on December 2, 1884, the property was sold by the sheriff, under the same decree, for $200, but by reason of a clerical error as to the name of the defendants in the order of sale a resale was made necessary. Then, again, $200 was the amount that Thompson was instructed to bid in case no competitive bidders appeared. Inadequacy of price alone is rarely ever sufficient to warrant the vacation of a sale, although the ground, connected with some others, is sometimes sufficient. Capital Bank v. Huntoon, 35 Kan. 591, 11 Pac. Rep. 369, and the cases there cited. But we do not think that the circumstance relied on here, which is the neglect of the plaintiff's agent to appear and bid at the sale, is sufficient to justify its vacation. It appears that only two days intervened between the time that the letter of instructions was written to Thompson and the time of sale; and Lawrence, where the letter was written, is distant from Norton, the place of sale, about 300 miles. The letter was received by Thompson before the sale was made, but not sufficiently early as to enable him to arrange his business so that he could attend the sale in person. It does not appear whether Miller, who was requested to attend the sale by plaintiff's attorney, was capable and reliable; nor is there any reason given why he did not observe the request. The plaintiff failed to show that Miller, his agent, was prevented from bidding by reason of any accident, mistake, misapprehension, or inadvertence. The case of Dewey v. Linscott, 20 Kan. 684, is confidently cited as an authority for a reversal; but there are marked distinctions between that case and the present one. There property which the witnesses valued at from six to eleven hundred dollars was sold for fifty dollars. The agent who was employed to attend the sale and bid upon the property in that case was called to another county, in obedience to a subpoena in a criminal case, and therefore could not be present at the sale. Besides, in that case, the mortgagor and mortgagee both joined in asking that the sale be vacated. Here the mortgagors do not complain, and the mortgagee alone asks for the setting aside of the sale. In the present case the price for which the property was sold is not so greatly disproportionate to the actual value as in the case cited. Then it does not appear that the present plaintiff was free from negligence in selecting Miller to represent him, and he wholly fails to account for Miller's nonobservance of the request made by plaintiff's attorney. In the case at bar there was no irregularity, and no fraud or unfairness. The sale was made to a bona fide purchaser, who was not concerned in the foreclosure action, and was a stranger to the proceedings; and therefore we are of the opinion that the inadequacy of the price, with the unexplained failure of the plaintiff's agent to bid at the sale, is insufficient to overthrow the sale, and to defeat the purchaser in obtaining that which he had fairly purchased. Savings Bank v. Marsh, 31 Kan. 771, 3 Pac. Rep. 511; Northrop v. Cooper, 23 Kan. 441; McGeorge v. Sease, 32 Kan. 387, 4 Pac. Rep. 846; Moore v. Pye, 10 Kan. 246; Capital Bank v. Huntoon, 35 Kan. 577, 11 Pac. Rep. 369. The orders of the district court complained of must therefore be affirmed. (All the justices concurring.) (36 Kan. 495) MISSOURI PAC. RY. Co. v. MORROW. (Supreme Court of Kansas. May 6, 1887.) 1. APPEAL-CONSTRUCTION OF PLEADING. A pleading first attacked after judgment, for the reason that it does not state facts sufficient to constitute a cause of action, will be liberally construed in order to uphold the judgment. 2. RAILROAD COMPANIES-STOCK-KILLING CASES-PLEADING-FENCES. An allegation that a railroad was not securely fenced will be held to mean that it was not inclosed with a good and lawful fence. 3. SAME ALLEGATION OF DEMAND. When the bill of particulars states that a demand was made upon the agent of a railroad company by the owner, to pay for injuries to his cow run into by the locomotives and cars of said company, it will be construed to mean, when first attacked after judgment, that such agent was one upon whom such demand could be made, under article 2, c. 84, Comp. Laws 1879. (Syllabus by Holt, C.) Error to district court, Coffey county. error. John D. Frazier, for defendant in HOLT, C. Defendant in error, S. A. Morrow, brought her action against plaintiff in error, defendant below, claiming damages for injuries to a cow run over by the locomotives and cars of the defendant, and also judgment for attorney's fees. Defendant did not appear at the trial in justice's court, but took an appeal to the district court. He made no appearance in that court. Defendant claims that the bill of particulars is not sufficient in law to uphold a judgment. Plaintiff's bill of particulars avers that plaintiff's cow, without fault or negligence on the part of plaintiff, strayed in and upon the track and grounds of defendant, and that defendant, by its agents and servants, so carelessly and negligently managed its locomotives and cars that they ran against and into said cow, thereby injuring and damaging her. This is a sufficient statement of plaintiff's cause of action, without reference to the railroad stock law of 1874. The defendant contends that the facts set forth in plaintiff's bill of particulars are not sufficient to authorize a judgment for attorney's fees, under article 2, c. 84, Comp. Laws 1879. The bill of particulars states that "at the point where said railroad might properly have been securely fenced, but where it was not so fenced, said plaintiff's cow strayed in and upon the track," etc. The statute provides that the road must be inclosed with a good and lawful fence. We believe that a good and lawful fence must be a secure fence, so far as fencing against a cow is concerned, especially when it is alleged that the cow strayed upon the tracks and grounds of said defendant without fault on the part of plaintiff. Plaintiff in error further complains that the bill of particulars is insufficient in this: That the notice which the statute requires to be served upon the agent of a railway company was not pleaded. The statute provides that a demand for damages may be made upon any ticket agent or station agent of such railway company. The allegations in the bill of particulars are that such demand was made by plaintiff upon John Williams, agent of defendant, without any allegation that he was a station or ticket agent, or any general agent of the company. The question to be decided now is whether such an allegation is sufficient, when attacked after judgment, to sustain a judgment based thereon. We think it is. The defendant was duly summoned. No motion was made to make the bill of particulars more definite and certain. The language used in the bill of particulars may mean that he was the agent of the defendant, upon whom such demand should be made. Such liberality of construction ought to be allowed when objection is first made to the pleading after judgment. There could not have been a judgment for attorney's fees without proof of the fact thus implied, and, as the evidence is not in the record, it is only fair to assume that this was fully established by evidence. Indianapolis & C. R. Co. v. Petty, 30 Ind. 261; Peck v. Martin, 17 Ind. 115; Bliss, Code Pl. § 442. This action was tried both in the justice's and district courts, and a judgment was rendered for $25 attorney's fees, the amount claimed by plaintiff as an attorney's fee in justice's court. Of this defendant complains. We see no error in this judgment. The sum of $25 may have been a reasonable fee for the trial in justice's court, without regard to such services in the district court. In the absence of any evidence in the record, it will be presumed that it was. It is recommended that the judgment of the court below be affirmed. LOWE v. HIGGINBOTHAM.1 (Supreme Court of Kansas. May 6, 1887.) NEGOTIABLE INSTRUMENTS-TRANSFER-BONA FIDE HOLDer. It is not error to sustain a demurrer to the evidence of the maker, showing want of consideration and fraud in the inception of two promissory notes sued on by a bona fide holder of the same, when there is an entire absence of testimony tending to show knowledge by the holder. (Syllabus by Simpson, C.) Error to district court, Dickinson county. O. L. Moore and H. Southworth, for plaintiff in error. Stambaugh & Hurd, for defendant in error. SIMPSON, C. Suit upon two promissory notes executed by Lowe, payable to the Jacksonville Sulky Plow Works, sold by them to William P. Higginbotham before maturity, one for $175, one for $150, with 10 per cent. interest from date. The first payable first of May, and the second the first of September, 1884, and both dated twenty-seventh September, 1883, actions originally commenced before a justice of the peace, appealed to the district court, and tried to a jury. Separate action on each note before justice, but consolidated by order of district court for trial. The district court found "The burden of the issues rested on the defendant," Lowe, and gave him the opening and close. His evidence consisted of the testimony of himself and his attorney, and the depositions of William E. Veitch, the treasurer, William D. Mathews, the secretary, and James H. Hackett, the manager, of the plow-works company. The plaintiff below demurred to the evidence, for the reason "that the facts proven do not constitute any defense to the action of the plaintiff," and it was sustained, the jury discharged, and a judgment for plaintiff for amount of notes, with interest. A motion for a new trial was filed and overruled, and the error complained of here, and principally discussed in the brief of the plaintiff in error, is the ruling of the court sustaining the demurrer to the evidence of Lowe. Lowe filed no answer in writing reciting his defenses, but the evidence was directed to these two defenses—First, fraud in the inception of the notes; and, secondly, no consideration. There was evidence tending to establish both of these defenses, but it entirely failed to show any knowledge on the part of Higginbotham, who sues on the notes, and claims to be a bona fide holder for value. While the record does not disclose the reasons given by the trial court of its ruling on the demurrer to the evidence, it is fair to say that it was probably based upon the fact that there was an entire absence of any attempt to show, or of any showing, that Higginbotham purchased with knowledge of the equities of the maker. In view of this For opinion on rehearing, see 15 Pac. Rep. 151. state of facts, it becomes not only unnecessary, but useless, to discuss the questions raised to the admissibility of certain evidence, as, without proof attacking the good faith of the party holding the paper by purchase before maturity. All of such questions are immaterial. It is recommended that the judgment be affirmed. BY THE COURT. It is so ordered; all the justices concurring. (36 Kan. 460) WEIR v. JACKSONVILLE SULKY PLOW WORKS and others. (Supreme Court of Kansas. May 6, 1887.) APPEAL-SUFFICIENCY OF EVIDENCE-FINDINGS OF FACT. Where an action is brought to this court for review, and the only errors complained of are that the judgment of the court below was not sustained by the evidence, and where the court below made special findings of fact and conclusions of law, and said findings of fact are all consistent with each other, and consistent with the conclusions of law and the general judgment, and where there is evidence in support of and directly tending to prove each finding of fact, the judgment of the court below will not be disturbed. (Syllabus by Clogston, C.) Error to district court, Cloud county. L. J. Crans, for plaintiff in error. Laing & Wrong, for defendants in error. CLOGSTON, C. Plaintiff commenced this action, April 10, 1884, in the district court of Cloud county. He alleges in his petition that on November 7, 1883, he entered into a contract with the Jacksonville Sulky Plow Works, by their agent, P. H. Blanchard, by which he was to become an agent for the said plow works in certain counties in Kansas, for the purpose of selling light draught plow attachments, and that by the terms of said contract they were to furnish him with 80 of said attachments, and that, in part payment thereof, he executed and delivered to said agent his two promissory notes of said date, each for $200, payable April 1, 1884, and November 1, 1884, and to the Jacksonville Sulky Plow Works or bearer, and at the same time executed and delivered with the said notes a chattel mortgage on some cattle and corn, to secure the payment of the notes; that said plow works failed to furnish the plow attachments as they had agreed to do by the terms of the contract; and that he received no consideration for said notes. Plaintiff also claims that said Jacksonville Sulky Plow Works, and said P. H. Blanchard, and one J. C. Davis, entered into a conspiracy to cheat and defraud said plaintiff, and did so defraud him out of said promissory notes; and he avers that the other defendants claimed to be the owners of said notes and mortgage, and of one other note claimed by the said defendants to have been executed by the plaintiff of the same date, and also secured by said mortgage for $300, and that said chattel mortgage had been interlined, and other property of said plaintiff's included; and plaintiff avers that said note for $300 and said interlineations in said mortgage were forged and fraudulent. The petition also states that said defendants did not in good faith, and for a valid consideration, purchase said notes before maturity, and that said defendants paid no valuable consideration therefor; that the Jacksonville Sulky Plow Works, P. H. Blanchard, and J. C. E. Davis failed to answer, and made no appearance in said cause, they being non-residents of Kansas, and service of them being by publication only; that the Concordia National Bank filed their answer disclaiming any interest in and possession of said notes and mortgage; that the Bank of Clyde filed their answer claiming to be the owners of said notes and mortgage, and that they purchased on November 8, 1883, from P. H. Blanchard, agent of the Jacksonville Sulky Plow Works, four promissory notes, dated November 7, 1883, three for $200 each, and one for $100, all executed by the plaintiff, payable to Jacksonville Sulky Plow Works or bearer; that said notes were purchased by the defendant in the regular course of business, for a valuable consideration, long before they were due; that all of said notes were secured by chattel mortgage executed by said plaintiff to secure the payment of said four several notes, which answer of said defendant was denied by the plaintiff; trial by the court, on the issues joined between plaintiff and defendant, the Bank of Clyde, and special findings of fact; that during said trial said plaintiff and defendant stipulated and agreed that, in an action pending in said court between said parties, wherein the Bank of Clyde was plaintiff and this plaintiff was defendant, said action being to recover the possession of the chattel property mentioned in the plaintiff's petition herein, and to recover a judgment for said four promissory notes secured by said chattel mortgage, being the same notes set out in defendant's answer herein, be submitted to the court upon the testimony and proceedings had in the trial of this cause. The court found the facts to be that plaintiff had executed all of said notes, and delivered the same to Blanchard, agent for the Jacksonville Sulky Plow Works, for a valuable consideration, and that he had also executed and delivered the chattel mortgage to secure all of said notes, as alleged in defendant's answer; and that the defendant the Bank of Clyde had purchased said notes from said agent in the regular course of business, for a valuable consideration, before maturity, and that said defendant was entitled to the possession of the property described in said chattel mortgage. Upon said findings of fact, the court rendered judgment for the defendant for the sum of $800.85, and costs, and now plaintiff complains of this judgment. In his brief plaintiff presents but one question, that the judgment is not supported by the evidence. On this objection it will not be necessary to examine the record, except upon two propositions: First. Were the notes and mortgages executed and delivered by the plaintiff? Second. If so, did defendant purchase them in good faith, before maturity, without notice? And on the first proposition the record shows that the plaintiff did not know how many notes he did execute, or in what sums, or payable at what times; for in his petition he alleges that he gave but two notes, for $200 each, and on the trial he admits that he gave three, two of $200, and one of $100. This left but the one note to be accounted for. He also admitted that the note for $100 was given last, or after the others had been given, but on the same day. Again, when these notes were presented to him on the trial,-those that were admitted to be genuine, as well as the others, he did not recognize his signature on any of the notes, and would not even give an opinion as to whether the signature was his signature on either the notes or the mortgage. All he would do or say was that he did not give the last $200 note, but would not say that the signature to said note was not genuine. This evidence we think very unsatisfactory, and doubtless the trial court so considered it. He denies that the horse and hogs were included in the mortgage, but averred the mortgage had been changed after he signed it. But the property which he alleges was not included when signed by him is the first property described in the mortgage. The original notes and mortgage are not brought to this court, and we are unable to compare the signatures, one with another. This the trial court could do, and found that all of said notes were executed by the plaintiff. On the second proposition there is no evidence contradicting the evidence of the defendant that it purchased the notes in question in the regular course of business, long before they were due, and paid therefor their face value, less 2 per cent. Again, referring to the time when said notes were executed, the plaintiff admits that the two notes for $200 each were first executed, and the mortgage executed to secure the payment; that afterwards there were other arrangements or trades made by which he executed the $100 note; and if he executed the $200 note, as the court has found, it was doubtless included in |