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(203 P.)

that he took his deed to his property made out to Mr. Weber. They had their abstract, and he examined it and found the title in Mr. Weber, and they had the deed from Mr. Weber made out in blank.

"A. Mr. Bagwell intrusted me with the deed absolutely; and after dinner he and his wife came down, and we went back down to my office. I had the note and mortgage in blank, and I said, 'Your name will have to go into this deed,' and he came and inserted Bagwell's name in the deed; and I supposed that Weber knew Bagwell was getting the property; anyway, Bagwell's name was put in the deed, and he signed the note and mortgage to me for $1,

500 and of course I mailed the deed and mortgage to Cheyenne county for record immediately."

He further testified that after supper Bagwell came over to see him, and wanted to know what he had done with the deed, and was told he had mailed it down for record. "Q. Have you ever held the deed to the Cheyenne county land in escrow? A. No, sir."

Mr. Bagwell testified that they called Mr. Porter to the office, and he refused to deliver his deed to Hunt until he got the mortgage on the land. He then went to Mr. Hunt's office, and had the deed made out to the land. Mr. Weber delivered his deed to him, and Mr. Porter delivered his deed to the Alma property to Mr. Weber.

"Q. Why was the deed to the Kansas land made in blank when it was made at Hunt's office? A. Why, it was made with the protection of T. L. Porter, as he refused to give a deed to his property until he got the mortgage as surety."

We have quoted the most significant evidence touching the alleged deposit of the deed with Mr. Porter in escrow, and are unable to find any basis for the conclusion that such a delivery was made. The facts seem to be that at Mr. Hunt's office a deed from Porter to Weber for the Alma property was delivered for which Bagwell made a $1,500 mortgage on the Kansas land owned by Weber, and in order that the mortgage might be valid Weber's name was inserted as grantee in the deed, so that the record would show clearly touching his mortgage to Porter, and it is also clear that Weber and Bagwell started to Riverton to close up the other deal to get the $3,000, and shortly returned, and afterwards Porter took a reconveyance of his property and satisfied the mortgage on the Kansas land, and that eliminated him

from the transaction, so that the plaintiff did not even ask judgment against him. We find nothing to indicate that Porter and Bagwell connived together to deprive the plaintiff out of his land, or that Porter either accepted or violated any escrow touching the Weber deal.

[2] Whatever the rights of the parties to the action may be, the petition and the judgment are based on the proposition that there was an escrow agreement which was violated by T. L. Porter. The prayer does not appear, so it is not known just what relief was sought, but the judgment directed that the deed from Weber to Bagwell for the Kansas land be canceled, and that Weber be required to convey to Bagwell the McPherson county, Neb., land. The only contention presented to us is that the finding and judgment touching the alleged escrow agreement and its violation was erroneous, and counsel's contention in this respect we find to be correct.

The judgment is reversed and the cause remanded for further proceedings in accordance herewith.

All the Justices concurring.

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Appeal from District Court, Butler County. Action by A. H. McIlvain against Earl Blue and the Prairie Oil & Gas Company, to recover under the Workmen's Compensation Law. Judgment for the defendants, and plaintiff appeals. Affirmed.

H. W. Schumacher and Hamilton & McKay, all of El Dorado, for appellant.

Kramer & Benson, of El Dorado, T. J. Flannelly and Paul B. Mason, both of Independence, and Aikman & Aikman, of El Dorado, for appellees.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MARSHALL, J. This is an appeal from an order sustaining separate demurrers of the defendants to the amended petition of the plaintiff.

cell, 109 Kan. 612, 201 Pac. 66, where this court said:

"The owner of a sawmill had occasion to re-. move a quantity of sawdust that had accumuThe action was to recover compensation un-lated. He arranged for his employés to feed der Workmen's Compensation Law. Gen. St. 1915, §§ 5896-5942. The petition alleged: That the Prairie Oil & Gas Company "was engaged in the various branches of the oil business in Butler county, Kan., and in doing all things incident to the production and marketing of oil and gas. That in pursuance and furtherance of its said business the said the Prairie Oil & Gas Company did, some time prior to May 25, 1920, undertake to execute a part of its said business by letting a contract with its codefendant, Earl Blue, for the execution by the said Earl Blue of part of the

work and business of the said the Prairie Oil & Gas Company, to wit:

"The loading, hauling, and unloading by the said Blue for the said company of certain pipe or casing from what is known as the Redford lease in Rock Creek township, Butler county, Kan., about 20 miles from El Dorado, Kan., to a machine shop in El Dorado, Kan., which said machine shop had been employed by said the Prairie Oil & Gas Company to repair said casing. That the said casing had been used by said Prairie Oil & Gas Company in its production of oil on said premises, and was intended

to again be used by it in the producing of oil on said premises as soon as the same could be repaired. That pursuant to said contract the said Earl Blue undertook to and did load and haul said casing from said lease to the city of El Dorado, Butler county, Kan., to said machine shop; that the said Earl Blue hired and employed this plaintiff to assist him in loading, hauling, and unloading said casing. That the said the Prairie Oil & Gas Company at all times retained and exercised direct supervision over the loading, hauling, and unloading of said casing, and directed the said Blue and this plaintiff how to load, haul, and unload the same, and what casing to haul, and in general directed how said casing should be hauled. That said casing was hauled as a part of the

regular trade and business of the said the Prairie Oil & Gas Company, and was used, and was intended to be used, by it in the conduct of its said business, and that in letting the said contract to the said defendant Blue the said the Prairie Oil & Gas Company undertook to and did execute a part of its trade and business of producing oil through the said contract. That the said the Prairie Oil & Gas Company owns and operates a large number of oil and gas leases in Butler county, Kan., all of which are operated under one management and by one set of workmen, who are shifted from lease to lease, and from one duty to another as occasion demands."

The petition further alleged that the Prairie Oil & Gas Company employed more than five workmen in conducting its business; that the plaintiff had offered to arbitrate; and that arbitration had been refused.

[1] 1. So far as the Prairie Oil & Gas Company is concerned, this case is controlled by the decision of this court in Farmer v. Pur

it into a chute through which by an endless chain it was conveyed to an elevated bin from ty. He contracted with a person to take it which it could be loaded into wagons by gravifrom the bin as fast as should be necessary to prevent such accumulation there as to delay the work, and remove it to a designated place, in consideration of the payment of a fixed price was injured while attempting to load a wagon per hour. A driver employed by such person from the bin, and sued the mill owner under the Compensation Act. It is held that such person was an independent contractor, and the plaintiff was not an employé of the defendant."

Earl Blue was an independent contractor, and the plaintiff was not an employé of the Prairie Oil & Gas Company.

[2] 2. The order sustaining the demurrer of Earl Blue rests on a different foundation. Section 1 of chapter 226 of the Laws of 1917, the Workmen's Compensation Act as amended, must be examined. That section, in part, reads:

"This act shall apply only to employment in the course of the employer's trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain.”

covered by any part of the Workmen's ComThe work being done by Earl Blue was not pensation Act, unless his work was building or engineering as defined in section 2 of chapter 226 of the Laws of 1917. The parts of section 2 material for consideration read:

tion, construction, extension, decoration, alter"Building work' means any work in the erecation, repair or demolition of any building or ing work' means any work in the construction, structural appurtenances. * 'Engineeralteration, extension, repair or demolition of a oil or gas well."

*

Earl Blue was hauling pipe between the place where it was being used and the place where it was being repaired, a distance of 20 miles. He was not building anything, nor was he doing any part of engineering work. Others may have been engaged in building or engineering work, but he was not.

Another statute that should be considered, so far as Earl Blue is concerned, is section 5902 of the General Statutes of 1915. That section, in part, reads:

"It is hereby determined that the necessity for this law and the reason for its enactment,

exist only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers

included herein."

(203 P.)

The petition did not allege that Earl Blue employed five or more workmen, nor that he had elected to come within the provisions of the Workmen's Compensation Act. He employed only one man. Under these statutes, the plaintiff had no cause of action against Earl Blue under the Workmen's Compensation Act.

by whom five or more workmen have been (em- executed on June 1, 1918, by which the ployed) continuously for more than one month plaintiff let a tract of land to defendant for at the time of the accident: Provided, how the purpose of mining for oil and gas for ever, that employers having less than five work- a period of five years and as much longer men may elect to come within the provisions as oil and gas could be profitably produced of this act in which case his employés shall be by the defendant. The consideration for the lease was $900, which is designated as a bonus and the rental for one year. The defendant was to pay plaintiff a royalty of one-eighth of the oil produced and certain cash payments in case gas was found. It contained a provision that if no well was commenced before June 1, 1919, the failure would operate as a termination of the lease, unless the defendant paid the sum of $220, which would operate as a rental and cover the privilege of deferring the commencement of a well for the succeeding year, and that like postponements might be secured thereafter by the annual payments of rentals of that amount. There were other provisions in the lease which are not material in this controversy.

The judgment is affirmed.

All the Justices concurring.

(110 Kan. 260)

TOWEL v. FLUHARTY. (No. 23414.)

(Supreme Court of Kansas. Jan. 7, 1922.)

(Syllabus by the Court.)

On the same day and immediately after the execution of the lease, another agreement, relating to the same property, was

1. Mines and minerals 59-Lease held mod- made between the parties, called the drillified by subsequent agreements.

An oil and gas lease is held to have been modified by subsequent agreements, and all are to be considered together in determining the rights of the parties.

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ing contract. It stipulated as a part of the consideration of the lease mentioned that the defendant should commence a test well upon the traet within 90 days from the date thereof, and carry on the drilling until the completion of the test well, unavoidable accidents and delays excepted, and that if the defendant failed to put down the test well within that time the plaintiff might at her option declare the lease at an end, in which even all rights under the lease should terminate. No test well was commenced within the time stipulated, and upon June 14, 1919, a third agreement was made, which recited that, as defendant had been unavoidably prevented from carrying out the contract on account of being called into the military service, it was agreed that the lease should be reinstated and renewed upon condition that the defendant should complete a test well for oil and gas within 60 days from June 14, 1919. There was no compliance with the extension agreement, and the plaintiff refused to make further extensions. On October 2, 1919, this action was brought by plaintiff for the cancellation of the lease, and to quiet her title against the defendant because of the breach of the drilling and extension agreements.

It appears that prior to the time the extension agreement was made the defendant paid and the plaintiff received a payment of the rental of $220, and he contends that this

JOHNSTON, C. J. In this action an oil and gas lease given by plaintiff to defendant was canceled, and from the judgment defend-operated as a waiver of his failure of perant appeals.

The controversy involves the consideration of three agreements between the parties, one of which is designated as a lease which was

formance; and it is further contended that there was no consideration for the extension agreement, and therefore no ground for the cancellation of the lease.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

All the Justices concurring.

[1] The lease first drawn cannot be treat-, effect that she refused to grant further exed as an independent contract. It was modi- tensions after defendant's final failure, and fied first by the drilling contract and later told him that she considered the lease at an by the extension agreement. All of these end. This was practically admitted by the stipulations must be considered together. defendant, and there is no substantial ground While the first stipulated that the drilling for holding that there was a lack of notice. of weils might be postponed by the payment An examination of the evidence, in which of rental, it was modified by the second, there is but little conflict, satisfies us that which specifically provided that a test well the court reached a correct conclusion when should be begun within 90 days, and that it held that the rights of defendant under the failure to drill one would be a ground the lease had been forfeited. for terminating the lease. But for the sec- Judgment affirmed. ond and supplemental contract the payment of rentals would have excused the failure to develop the land during the five-year period. The parties, however, chose to modify the lease in respect to development by agreeing that the drilling of a test well should be begun within 90 days, and that a default would give plaintiff the option to terminate the lease. Although the defendant failed to comply with this stipulation plaintiff did not choose to declare a forfeiture, but later was induced to enter into the extension agreement. This agreement served to excuse the previous default, but coupled with the reinstatement of defendant's rights was the agreement that a test well should be completed within 60 days after the agreement was made. This plain limitation was made a part of their contract. There is no claim of fraud or mistake in making it. The payment of rentals that had been made was not

to relieve from the drilling of a test well

VOGLER v. VOGLER et al.
(Supreme Court of Kansas.

(110 Kan. 208) (No. 23379.) Jan. 7, 1922.)

(Syllabus by the Court.j

Homestead 57(3)-Record held to sustain judgment that plaintiff is entitled to her homestead interest.

Record examined, and held to sustain the findings and judgment that the plaintiff is entitled to her homestead interest in the property involved, and that her stepson is not own

er thereof, or her landlord in respect thereto.

Appeal from District Court, Marshall
County.

Vogler and wife and others for partition.
Action by Anna M. Vogler against Max
Judgment for plaintiff, and defendants ap-

peal. Affirmed.

Bennett & McFarland and Charles Smith, all of Washington, Kan., for appellants. W. J. Gregg, of Frankfort, and W. W. Redmond, of Marysville, for appellee.

under either the supplemental or extension agreements, and evidently in order to get the extension agreement the last payment of rent was made. From the recital in the extension agreement the call of the defendant to military service was treated as an excuse for his previous failure to drill a test well, and if the contract had not been renewed the plaintiff might have had some difficulty in enforcing a forfeiture. In the last agreement the time to complete the well was fixed, and compliance of this stipulation was necessary to the protection of defendant's rights. The previous payment of rental did not ex-place for $800, paying $50 down, and takcuse the defendant's failure to complete the test well at the time prescribed in the extension agreement.

WEST, J. This action was brought by the plaintiff against her stepchildren and others to partition a piece of town property claimed by her as a homestead. She alleged that in 1907 her husband, Joseph Vogler, bought the

ing a written agreement of conveyance to him on payment of the balance of the consideration, and that she and her husband went into possession and occupied it until October 6, 1917, when her husband died; that she thereafter continued in possession until January, 1919, when she went on a visit, and while gone Max Vogler forcibly took possession; also, that her husband, Joseph Vogler, paid the balance of the purchase price, but without his knowledge, consent, or

[2] It is contended that there was a lack of consideration for both the supplemental and extension agreements. The supplemental agreement is to be regarded as a part of the original lease, and the consideration for the first is adequate for the second. There is abundant consideration for the extension agreement in the mutual promises of the parties and the advantages and in-approval the deed was made to Max Vogler, conveniences stipulated for in the renewal of the lease.

[3] Some contention is made that notice of the termination of the lease was not given by the plaintiff. There is testimony to the

who took it with the full knowledge of the facts and circumstances.

Max Vogler answered that with the full knowledge of the plaintiff and her husband he took the deed, and has ever since been the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

WEBER v. GARDNER
(203 P.)

705

legal and equitable owner of the property; [ "Q. I mean all that he has had since was in
his father and stepmother being his tenants
by sufferance.

The court found the allegations of the petition true, and that the defendant Hugo P. Vogler had tendered a quitclaim deed to the defendant Max Vogler, and gave the plaintiff an undivided one-half of the property involved, and ordered partition.

The plaintiff testified, among other things, that she married Joseph Vogler in 1903, and in 1907 moved into the property, and lived there until they both got sick, when her son came and got her and Theodore Vogler got his father.

"When we went away we left our furniture in the house. In January after my husband died, Max notified me he had rented the house. I have never taken the furniture out. That is the only home we had."

Mr. Cottrell of whom the place was bought, testified that when it came to making out the deed he looked it over, and saw that it read Max instead of Joseph, and Max spoke up and said, "Never mind; the deed is all right;" further, that he received the full purchase price, the balance after the first payment being paid by check. know who signed it, but to the best of his He did not recollection it was handed him by Max Vogler.

Max Vogler testified to a considerable supervision of the affairs of his father and the handling of checks and the like, and that in 1914 he sent him $2,000, which his father mailed back to him. His brother Theodore Vogler testified that his father came down to see him in August, 1917, and he (Theodore) told Max he wanted money and to give him $2,000, and Max said he did not owe him $2,000, just $1,800; that after this he still collected the rents for his father. Max testified that he did not know when he got this $1,800, but that he began to handle it in 1910 or 1912, "along in there some time," and handled the rents until his father died.

"Q. You used $100 of his money to build a barn on his farm? A. Yes, sir; well, perhaps; I don't know.

"Q. You claimed you did when he asked for a settlement before he died, didn't you? A. Yes, sir; according to agreement.

"Q. You got him to sign a receipt, saying it was all right for you to use that $1,000; you claimed you did? A. Yes, sir

"Q. That was out of that $1,800? sir.. * A. Yes, "Q. You never paid any of that $1,800 back to him? A. No, sir.

"Q. Now, Mr. Vogler, all the real estate that he had since he married her was in your name, wasn't it? A. No, sir; he had 160 acres that was not in my name.

your name when he died; everything that he owned had passed into your name in the way of real estate? A. Yes, sir.

"Q. This piece of property here in town was in your name? A. Yes, sir.

his money? A. It was his request.
"Q. What was your purpose in handling all

"Q. He wanted you to do the business?
Yes, sir.
A.
made that request? A. Sir?
"Q. Was that after he was married that he

"Q. After he was married, was it, that he made the arrangement? A. I have handled his years old when I commenced to handle famoney almost since I was born. I was five ther's business.

"Q. When you were five years old? A. Yes, sir; commenced when I was five years old. you? A. It's a fact; yes, sir." "Q. Well, you were quite precocious, weren't

We think the court was fully justified in stating:

in possession of $1,700 of Joseph Vogler's mon"The testimony shows that Max Vogler was ey up until 1917, and that is not explained."

abstract fully convinces that the judgment
An examination of the abstract and counter
rendered by the court was abundantly sus-
intent to deprive the stepmother of her home-
tained by the evidence, and that the manifest
stead was eminently improper.

The judgment is affirmed.
All the Justices concurring.

WEBER v. GARDNER et al.
(Supreme Court of Kansas.

(110 Kan. 295) (No. 23450.) Jan. 7, 1922.)

I. Bastards 6-Recognition by father held
(Syllabus by the Court.)
general and notorious.

of collateral heirs against the illegitimate son
In an action to quiet title by the grantee
of the deceased owner, the evidence examined,
by his father was "general and notorious,"
and held to support the trial court's finding
and judgment that the recognition of the son
which an illegitimate son can inherit from his
within the rules prescribed by the statute under

father.

2. Quieting title

51-Unsuccessful plaintiff held entitled to compensation for improvements.

Plaintiff purchased a town lot from the col-
improvements on the property which enhanced
lateral heirs of the deceased owner. He made
his title against the illegitimate son of the de-
its value. Plaintiff brought an action to quiet
ceased owner.
ous" recognition by his father was established,
The son's "general and notori-
and the son's title prevailed. Held that, before

"Q. When he married her? A. Yes, sir; when the plaintiff can be dispossessed, he is entitled
to receive compensation for the enhanced value

he married her.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
203 P.-45

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