Ditch Company, at the instigation of the conspirators, etc.; "that said attempted conveyance is a fraud, and void in law and equity, and a fraud upon these complainants and all innocent stockholders." These allegations are so vague, mysterious, indefinite, and indeterminate that it is impossible to seriously consider them. If, as stated, it was only an attempt to convey, it, of course, was not consummated; no one was injured. If it was "void in law and equity," "void things" are no things, and require no notice. Whether it was a reorganization under a new name of the same corporation or a new and distinct corporation, whether the capital stock of the first corporation was increased, whether the scope and ob. ject of the new corporation were extended and enlarged, whether any consideration, nominal or otherwise, passed or was to pass, whether the possession passed from the old company to the new, whether the new company was 'capitalized and issued stock, we are not informed. The only information we have is: "The organization of the said second company

by

the same parties and for the same purposes has so confused and complicated the legal constitution and status of both said companies, that it is almost utterly impossible for said companies, or either of them, to carry on the business," etc. This certainly would be the result where two corporations, created for the same purpose, and controlling the same property and rights, attempted at the same time to exercise such control. It is a condition without precedent; and, without some facts stated,-some data,-it is impossible to say whether it is fair or fraudulent, legal or illegal. It certainly ap pears opposed to natural law,-two bodies occupying the same space at the same time. But it appears in the next allegation that the original corporation still retained sufficient vitality to exercise the important prerogative of levying assessments upon its stock, and that, in the exercise of it, plaintiffs had been assessed to pay $1,347.50; that there was no necessity for such assessment; that it was made by the conspirators to force a sale of plaintiffs' stock, and buy it in; and that plaintiffs refused to pay such assessment. This is again followed by the general charges of mismanagement, incompetency, want of skill in employes, fraud and dishonesty, and, upon “information and belief, collusion and conspiracy to wreck and ruin both companies. Then that plaintiff, prior to commencing suit, appeared before the board of directors, and protested and complained, and begged it to reform and correct its grievous wrongs; that the requests were unheeded, the eloquence wasted.

The first part of the prayer is in the disjunctive or alternative, asking that a receiver be appointed to complete the construction of the work and disburse the money, or that an injunction issue to restrain the company from prosecuting the work and disbursing the money, and from proceeding to enforce the collection of the assessments against the plaintiffs; that the two trust deeds be decreed to be v.29p.no.10-48

void and canceled; and for a full accounting of all moneys disbursed. This lengthy review of the complaint may seem unnecessary, but it is as brief a digest or synopsis of 31 closely printed pages as can be made for a proper understanding of the case. A demurrer was interposed specifying 18 supposed fatal defects in the pleading, which may be consolidated and summarized in one, viz., that the complaint was bad for want of substance; did not state facts sufficient to entitle plaintiffs to the relief asked. The demurrer was sustained. The judgment is brought here for review.

In this case the well-established rules and principles that control pleadings in equity have been overlooked or disregarded. The conclusions of the pleader, stated as facts, broad generalizations, sweeping and comprehensive assertions of conspiracy, fraud, mismanagement, and incompetency, cannot be made, in pleading, to supply the want of specific facts. The allegations must be positive, and not by way of recital, and must be of facts only, and not of law." Mitford & T. Eq. Pl. 64. "The rights of the several parties, the injury complained of, and every other necessary circumstance, as time, place, manner, or other incidents, ought to be plainly, yet succinctly. alleged. Whatever is essential to the rights of the plaintiff, and is necessarily within his knowledge, ought to be alleged positively and with precision." Id. 136; Story, Eq. Pl. §§ 27, 28, 246-257. Fraud is a conclusion of law from the facts stated. It is not sufficient in the bill to make a charge of fraud in general terms. It should point out and state particular acts of fraud. Id. §§ 251, 251a. The capital stock of a corporation is usually the original and only source from which the money is obtained for the prosecution of the enterprise. By section 340, c. 19, of the General Statutes of 1883, it is declared: "No corporation shall issue stock or bonds, except for labor done, services performed, or money or property actually received." A careful examination of the authorities establishes the legal fact that the stock of a corporation is the basis from which is derived the capital; that the stock is regarded as money or its equivalent. It is alleged that the capital stock of the company was $200,000; that it passed to the stockholders. Had it been disposed of at 50 per cent. of its par value, the fund obtained would, according to the allegations of the complaint, have been ample to have completed the enterprise. From the complaint it appears that not a dollar of proceeds of stock ever went into the treasury, and that all the money received and used came from the Farwell loans. From the allegations it is presumable that the stock was issued and used for gratuitous distribution among the promoters. The allegation is that plaintiffs were the "bona fide owners and holders of said capital stock," but it is not alleged that any value whatever was paid for it. If, as stated, Farwell furnished all the money for 65 per cent. of the stock, and the others were the gratuitous holders of the remaining 35 per cent.,

and he afterwards by purchase obtained over 15 per cent. more, and then, through his agents, took absolute and entire control of the management, construction, and disbursement of money, if the management was bad, his agents incompetent, the money wasted, etc., it would seem that he (Farwell) was the only one who could suffer pecuniarily, and could hardly be amenable to the oft-reiterated charge of conspiracy to ruin and wreck a company in which he would be the only sufferer. He is charged, in effect, with wasting his own money, and wrecking himself to the extent of 80 or 85 per cent. to effect the ruin of the other 15 or 20 per cent. If such were the facts, Farwell might be benefited by the appointment of a conservator or guardian, but a court of equity could hardly appoint a receiver, as asked, to administer his affairs; nor can the court, by injunction, restrain him from wastefully disbursing his money, or mismanaging his affairs; nor can it, in the absence of stated facts, showing the invalidity of the assessment, restrain its collection. A minority of a corporation is undoubtedly entitled to the interposition of a court of equity to protect it from the illegal aggression of the majority, but the wrongs charged, the imminency of the danger, and the rights of the minority, must be clearly and explicitly stated by apt averments. The court is asked to decree both deeds of trust made to secure the money borrowed absolutely void and of no effect. Why this should be done is not shown. To enable a court to so decree, some invalidity or illegality in their inception and execution must be shown, or a failure or want of consideration. Neither is attempted. A misapplication and waste of the money received in exchange for a security would not afford a court adequate grounds for invalidating the security given. It follows that the judgment of the court in sustaining the demurrer and dismissing the suit was correct. Affirmed.

(48 Kan. 435)

CITY OF OLATHE v. Mizee. (Supreme Court of Kansas. April 9, 1892.) CITY-LIABILITY FOR NEGLIGENCE EXCAVATION IN STREET-INJURY TO TRAVELER.

1. Where an excavation is made by the city authorities in a public street of a city, the end of which extends up to a narrow cross walk at an intersecting street, and it is left overnight uncovered, and without guards or danger signals, and a woman, in crossing the street over the cross walk, meets parties who do not see her, or do not turn aside to let her pass, and she, to avoid collision, diverges from the cross walk, and, without any knowledge of the excavation, falls therein, and is hurt, she may recover from the city for the injury sustained; and the fact that the strangers whom she met did not yield the cross walk, and that they caused her to step aside and into the excavation, does not preclude such recovery.

2. A pedestrian is not confined to a cross walk, but has a right to assume that all parts of the street intended for travel are reasonably safe; and, if he knows of no dangerous excavations or obstructions, he may cross the street at any point that suits his convenience, without being liable to the imputation of negligence. (Syllabus by the Court.

JOHNSTON, J. This action was brought by Elvira Mizee against the city of Olathe to recover for personal injuries sustained by her in falling into an excavation in a public street of the city of Olathe, which was left uncovered and unguarded. She was injured in the nighttime, while crossing Kansas avenue at its intersection with Park street, and while passing along on the south side of Park street. An excavation was made by the city, under the direction of the street commissioner, about 20 inches deep and 20 inches wide, for the purpose of laying a drainpipe to carry off water along the east side of Kansas avenue. It extended from the cross walk on the south side of Park street, southward. The cross walk was constructed of two rows of stone, each of which was 20 inches wide, with an intervening space between them of 20 inches. The ditch, which extended up to this cross walk, was left unguarded; and the plaintiff, in attempting to pass along the cross walk, met parties going in an opposite direction; and, stepping aside, to allow them to pass, she fell into the ditch, and sustained the injuries complained of. The jury awarded her $800, and the city complains, and assigns several rulings of the court as

error.

An exception was taken to the admission of testimony in regard to the placing of a light at the ditch by the city marshal subsequent to the occurrence of the injury. It was contended that it was offered to show negligence on the part of the city, and an admission that such a precaution should have been taken prior to the accident. On the other side, it was said that it was not offered for that purpose, but that, as one witness had incidentally remarked that there was a light there, the testimony was introduced merely to show that it was not there when the injury occurred, and to prevent the inference that Mrs. Mizee, by the aid of such light, should have seen and avoided the excavation. Whatever may have been the purpose of the parties in respect to this testimony, it is unimportant in this case, and the objection made is immaterial. negligence of the city in the matter is undoubted. To leave such a dangerous excavation in a public thoroughfare of the city, and close to a much-used walk, without guards, barriers, lights, or danger signals, is a marked case of carelessness. It would be clearly negligence to leave such a ditch uncovered and unguarded in the daytime; but for the city authorities to permit such a pitfall to remain open, and without lights or guards, in the nighttime, with full knowledge of its dangerous character, is gross carelessness. There is no dispute as to the existence, location, and character of the excavation, and hence the ruling of the court upon the admission of tes

The

timony respecting the negligence of the city is unimportant. If the question of negligence on the part of the city had been in issue, the court would have been justified in admitting the testimony. Railroad Co. v. Chase, 11 Kan. 47; Railroad Co. v. Retford, 18 Kan. 245; City of Emporia v Schmidling, 33 Kan. 485, 6 Pac. Rep. 893; Railway Co. v. Weaver, 35 Kan. 412, 11 Pac. Rep. 408; City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. Rep. 121; Railroad Co. v. McKee, 37 Kan. 592, 15 Pac. Rep. 484.

Complaint is made of the refusal of an instruction requested by the city, that if it was found from the evidence "that the injury complained of was caused by the negligence of the city, combined with the negligence of a third party, for whose acts the city was not responsible, and would not have happened but for the acts of such third party, then the city is not liable, and you must find for the defendant." The request was based upon testimony to the effect that Mrs. Mizee stepped from the cross walk to avoid a collision with persons who were approaching her on the walk from the opposite direction. The testimony in the case is not such, in our opinion, as to require a statement of the rule with reference to the proximate and remote causes of the injury. It is not of such a character that it can be said that the injury would not have occurred but for the negligence of the persons who met and passed her upon the street. There is nothing to indicate any negligence on their part. They did not jostle or push her. She was carrying large bundles in her arms; and as they did not appear to see her in the darkness, as they approached, she stepped aside in order to allow them to pass. they had seen her, and stepped aside, it is quite probable that they would have suffered the same misfortune which befell her. Even if the testimony warranted an iustruction upon the subject of concurring negligence, the one requested by the city does not correctly state the law. Village of Carterville v. Cook, 129 Ill. 152, 22 N. E. Rep. 14; Webster v. Railroad Co., 38 N. Y. 260; Ring v. City of Cohoes, 77 N. Y. 83; Railroad Co. v. Mahoney, 57 Pa. St. 187; Burrell Tp. v. Uncapher, 117 Pa. St. 353, 11 Atl. Rep. 619; Smith v. Railroad Co., 46 N. J. Law, 7; Winship v. Enfield, 42 N. H. 197; Railroad Co. v. Terry, 8 Ohio St. 570; Hunt v. Pownal, 9 Vt. 411; Taylor v. City of Yonkers, (N. Y. App.) 11 N. E. Rep. 642; Patt. Ry. Acc. Law, §§ 39, 95; Shear. & R. Neg. §§ 31, 36, 346.

If

The proximate cause of the injury was the negligence of the city. It was its duty to keep, not only the cross walks, but the entire width of the street, in a reasonably safe condition for both pedestrians and teams. It was one of the principal thoroughfares of the city, and, in the absence of any guards, lights, or notices of danger, Mrs. Mizee had a right to presume that all parts of it could he traveled with safety. A divergence or departure from the cross walks is ordinarily not an evidence of want of care. Pedestrians have a right to cross a street at any point, and It is the common practice to do so. A difference in this respect exists between sidewalks and cross walks, as the former are

66

for pedestrians only, while the latter are placed on a level with the street, and are traveled over by both foot passengers and vehicles. The cross walk in question was narrow, consisting of two rows of stones, but the plaintiff was not restricted to picking her way across the street on these. stones; and if she had crossed at another point where the open ditch was met, and, without negligence on her part, had fallen therein, she might have recovered for her injuries. A person desiring to cross the street, either in the nighttime or in the daytime, is not confined to crossing. He has a right to assume that all parts of the street intended for travel are reasonably safe; and if in the nighttime he desires to cross from one side to the other, and knows of no dangerous excavations in the street, or other obstructions, be may cross at any point that suits his convenience, without being liable to the imputation of negligence." Brusso v. City of Buffalo, 90 N. Y. 679; also, Raymond v. City of Lowell, 6 Cush. 524.

The city assigns as error the refusal of the court to require more specific answers to several questions. One of them was: "Could the plaintiff have remained upon the cross walk by the use of ordinary care?" Another was: "Would she have been injured if she had passed to the right of the walk?" In response to these questions, the jury answered: "No evidence." From what has been said, it will be readily seen that there is no materiality in either of the questions.

Some other objections are made, but they are not of sufficient importance to require consideration or comment. We think the case was fairly tried, and that a just result was reached. Judgment affirmed. All the justices concurring.

(48 Kan. 400)

CAPITOL INS. Co. v. WALLACE,1 (Supreme Court of Kansas. April 9, 1892.) INSURANCE STIPULATION TO ARBITRATE-RIGHT OF ACTION-NOTICE AND PROOF OF Loss.

1. Where a stipulation is contained in an insurance policy that, "in case differences shall arise as to the amount of any loss or damage, * * the matter shall, at the written request of either party, be submitted to two impartial appraisers," etc., and it does not appear that any differences of opinion ever arose with regard to the amount of the loss or damage, and neither party ever presented to the other party any writ ten request or any request asking or suggesting that appraisers or arbitrators or referees should be selected or appointed, held, that it was not necessary in such a case, under such stipulation, that there should be any appraisement or arbitration or reference before the assured would have the right to commence an action against the insurance company for the recovery of his loss.

2. The insurance policy also contained a stipulation that "persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to this company. n The formal notice was not given until 12 days had elapsed after the fire had occurred. Held, under the facts of this case, that the assured did not forfeit his rights under the policy because of the delay in giving the notice.

3. A retention by an insurance company of proofs of loss for 48 days, without objection, warrants a finding that all objections were waived. (Syllabus by the Court.)

'Rehearing pending.

Action by W. E. Wallace against the Capitol Insurance Company to recover on

of this company under this policy." This provision really has no application to this case, for the following reasons: It docs

D. R. Hite, for plaintiff in error. S. H. Allen, for defendant in error.

VALENTINE, J. It appears that on June . 18, 1888, the Capitol Insurance Company issued a fire insurance policy to W. E. Wallace, insuring his building occupied by him as a place of business, and also insuring his stock of furniture, and his tools, implements, etc., therein contained, in the amount in the aggregate of $1,000. On November 2, 1888, a fire occurred, without the slightest possible fault on his part, which destroyed all the insured property and very much more. Wallace then gave notice to the agent of the insurance company, and substantially complied with all the terms and conditions of the policy, and demanded payment; but the insurance company refused, and Wallace, on February 19, 1889, commenced this action | in the district court of Linn county against the insurance company to recover $1,000, with interest, which the company had agreed in the policy to pay in case of loss by fire. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff, and against the defendant, and assessed the damages at $1,025.28, principal and interest, and for this amount the court below rendered judgment; and the defendant, as plaintiff in error, has brought the case to this court for review. Some of the questions involved in this case are also presented in the cases of Capitol Ins. Co. v. Bank of Pleasanton, 29 Pac. Rep. 578, and Capitol Ins. Co. v. Bank of Blue Mound, Id. 576, which questions will be discussed and commented on only in the other two cases, which cases will be decided at the same time that this case is decided. Nothing will be said in this case concerning the questions which are common to both this case and either of the other two cases, but only such questions will be considered in this case as are not involved in either of the other two cases.

The first question which we shall consider arises upon a stipulation in the policy which reads as follows: "In case differences shall arise as to the amount of any loss or damage, whether before or after proof thereof has been received in regular form, and prior to a tender by this company to the assured of the amounts as set forth in said proof of loss, or after the property has been replaced or repaired, the matter shall, at the written request of either party, be submitted to two impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of their disagreement, and, if said appraisers fail to agree, they shall refer the difference to such umpire, and the awards of any two, in writing, shall be binding on the parties as to the amount of any such loss or damage, and the acceptance of the property replaced or

ever arose with regard to the amount of the loss or damage. The property was totally destroyed, and it was worth very much more than the amount of the insurance. Besides, no written request of either party" nor any request, asking or suggesting that "appraisers" or arbitra. tors or referees should be selected or appointed, was ever presented by either party to the other; and hence it was not necessary, under the facts of this case and under that clause of the policy, that there should be any appraisement or arbitration or reference before the commencement of an action by the assured against the insurance company to recover for his loss under the policy. Insurance Co. v. Wilson, 45 Kan. 250, 25 Pac. Rep. 629; Nurney v. Insurance Co., 63 Mich. 633, 30 N. W. Rep. 350.

It is next claimed that the assured did not give notice within sufficient time concerning his loss. There is a provision in the insurance policy which reads as follows: "Persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to this company, accompanied with a copy of the written portion of all the policies thereon." It will be seen from this provision that the notice should be given “forthwith," and it is claimed that the notice was not given until 12 days had elapsed after the fire occurred. The notice, however, was given "forthwith" to the local agent of the insurance company who procured the insurance, but was probably not given formally and to any general agent of the insurance company until about 12 days had elapsed after the fire occurred. The fire occurred on November 2, 1888. The notice was dated November 13, 1888, and was probably not received by the company until November 14, 1888; but, taking this lastmentioned notice as the only proper or formal notice that was given, still we think the assured did not forfeit his rights under the policy because of the delay in giving the notice. No harm was done; and, besides, it is pretty clear that the insurance company did not at any time intend to pay the insurance money if it could possibly avoid it.

It is further claimed that the assured forfeited his right to the insurance money because he did not, after the fire occurred, fully comply with all the terms and conditions of the insurance policy with regard to proofs of loss, etc. We think, however, he did substantially comply with all such terms and conditions. He attempted to do so, at least, and attempted to do so in good faith. The proofs of loss were made out before the insurance company's local agent, who was also a notary public, on November 29, 1888, and the insurance company in all probability received them on November 30, 1888. Then followed some correspondence between the assured and the insurance company, the company requiring that further and additional things should be done, and the

assured attempted in good faith to comply with its demands, and he did, in fact, substantially comply. The last communication from the assured to the insurance company in his attempt to comply with all that the company required was by a letter dated December 19, 1888, and received by the company probably not later than December 20, 1888; yet the company never answered this letter, nor made any objections thereto, nor any objection whatever after that time, until February 6, 1889, when, after the assured had again written to the company, (the letter being dated February 1, 1889,) demanding payment of the insurance money, the company answered, (its letter being dated February 6, 1883,) substantially denying all liability, and for reasons never before urged. the delay in making objections to the proofs of loss, etc., we think the company waived all possible objections thereto. It has been decided in New York that a retention by an insurer of proofs of loss for 38 days, without objection, would warrant a finding that all objections had been waived. Keeney v. Insurance Co., 71 N. Y. 396. We think this is good law, and that it applies to the present case. In the present case, however, the insurance company waited 48 days after receiving the proofs of loss, etc., before making any objection.

By

There is really no substantial reason why the insurance company should not pay the amount of the policy in the present case, and we think no substantial error was committed by the court below; and therefore the judgment of the court below will be affirmed.

All the justices concurring.

(18 Kan. 360)

CITY OF PITTSBURG V. REYNOLDS. (Supreme Court of Kansas. April 9, 1892.) ILLEGAL SALE OF LIQUOR-PUBLICATION OF ORDINANCE-VALIDITY.

Chapter 156, Laws 1891, relating to the printing of legal notices and advertisements in newspapers of the county, has no application to the publication of city ordinances.

(Syllabus by the Court.)

Appeal from district court, Crawford county; S. H. ALLEN, Judge.

Prosecution by the city of Pittsburg, Kan., against Mrs. A. E. Reynolds, for the violation of an ordinance. From a judgment for defendant on dismissal of the action, plaintiff appeals. Reversed.

plea in bar of the action, setting forth, substantially, that the ordinance was never published as required by law, and was therefore void. The city of Pittsburg demurred to this plea upon the ground that it did not state any defense to its prosecution, which demurrer the court overruled, and, the city standing upon the demurrer, the court dismissed the action, rendered judgment in favor of the defendant and against the plaintiff for costs, and discharged the defendant; and the city now appeals to this court.

It seems to be admitted that, before a city ordinance can have any force or effect, it must be published as prescribed by law. Second-Class City Act, § 8. And it seems, also, to be admitted that the present ordinance was published in accordance with the provisions of the aforesaid section 8 of the second-class city act, and therefore it is claimed by the city that the ordinance was and is valid. The defendant, however, claims that since March 4, 1891, when chapter 156, Laws 1891, took effect, in order to render a city ordinance valid when passed it must be published in accordance with the provisions of said chapter 156; and it is admitted that the ordinance in the present case was not published in accordance with said chapter 156. The defendant's plea sets forth that the ordinance was passed and approved on Au. gust 19, 1891, and was first published on August 22, 1891, in a newspaper then printed and published in the city of Pittsburg, and known as the "Pittsburg Daily Times; that the said newspaper had not been published for 52 weeks prior to such publication, nor since January 1, 1891, and that there were other newspapers which had been published in the city of Pittsburg for the required length of time. It seems to be admitted by counsel that the only question presented to this court is whether the ordinance, in order to be valid, must necessarily be published in accordance with the provisions of chapter 156 of the Laws of 1891, or whether the publica. tion of the ordinance in accordance with the provisions of section 8 of the secondclass city act only would be sufficient. It is claimed by counsel for the city-First, that said chapter 156 has no application to the publication of city ordinances; and, second, that, if it has, then to that extent it is unconstitutional and void, be ing in contravention of section 16, art. 2, of the constitution, which provides that "no bill shall contain more than one sub

VALENTINE, J. This was an action in the nature of a criminal prosecution, wherein the city of Pittsburg, a city of the second class, was the plaintiff, and Mrs. A. E. Reynolds was the defendant, and in which the defendant was charged with violating a city ordinance prohibiting the keeping or maintenance of places where intoxicating liquors were sold or kept for sale. The action was commenced before the police judge of the city, but aft er trial and judgment the case was appealed by the defendant to the district court, in which court the defendant filed a

title.' The title of said chapter 156 reads as follows: "An act to regulate the printing of legal notices and advertisements,

and the body of the act provides, among other things, as follows: "Section 1. No legal notice, advertisement, or publication of any kind, required or provided by any of the laws of the state of Kansas to be published in a newspaper, shall have any force or effect as such unless the same be published in a newspaper of the county having general circulation therein, and which said newspaper has been continuously and uninterruptedly published in said county during the period of fifty-two consecutive weeks prior to the first publi