(182 P.) a right of action under the plain terms of the fendant on the 17th day of August, A. D. statute. 1917. "Proceedings for the recovery of compensa tion under this act shall not be maintainable * unless a claim for compensation has been made within three months after the accident. Gen. Stat. 1915, § 5916. See Smith v. Process Co., 100 Kan. 40, 163 Pac. 645. Plaintiff quotes some evidence which faintly tends to show that timely demands were made for compensation. The evidence for the defendant to the contrary was positive and convincing, and it was the function of the trial court to determine the truth of these disputed facts, and its findings thereon are conclusive on appeal. Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057; Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619, Ann. Cas. 1918B, 1168. Some of the evidence quoted to prove a demand would, under our decisions, tend to prove notice of the injuries (Gen. Stat. 1915, § 5916; Ackerson v. Zinc Co., 96 Kan. 783, 153 Pac. 530; Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167; Smith v. Process Co., 100 Kan. 40, 163 Pac. 645, L. R. A. 1916A, 244, 245), but the trial court's decision did not rest on the question of notice. Plaintiff testified to a conversation with Hamilton, the president of the defendant company, by whom he was offered $13 for injuries, which he declined to accept. This offer, he contends should be construed as a waiver of specific demand. One trouble with that contention is that Hamilton also testified as to that incident, and he said that the matter of an injury to the leg or to the eye was not involved, that he never knew of those injuries, and that this conversation related to the third injury, to plaintiff's back and shoulder, and that the offer was simply for the period which plaintiff himself estimated that his last injury would delay his return to work. Obviously the trial court accepted Hamilton's explanation of the offer as true; and consequently that incident did not answer the purpose of a demand nor serve as a waiver of demand for compensation for the earlier injuries. [3] Some complaint is made touching the admission and exclusion of evidence, but, as these matters relate to the alleged injuries of October, 1916, and June, 1917, for which no action would lie because of failure of timely demands, these errors need no consideration. [4] The only other error assigned which is worthy of note is plaintiff's complaint touching the paucity of the compensation allowed for his injuries sustained on August 17, 1917. The award or judgment was pursuant to the trial court's findings, viz.: "Court further finds on proof offered that the plaintiff's average weekly earnings for 10 months prior to the 17th day of August, 1917, amounted to $5 per week. "Court further finds as a result of said injury sustained by the plaintiff on August 17, 1917, plaintiff was totally disabled to do and perform manual labor for a period of 6 weeks. "Court further finds that the plaintiff was partially disabled to do manual labor as a result of said injury for a further period of 16 weeks. "Court further finds that the plaintiff is entitled to compensation, on account of said accidental injury for a period of 5 weeks at $6 per week and in the total sum of $30. "Court further finds that the plaintiff is endental injury for partial disability for a period titled to compensation on account of said acciof 16 weeks in the total sum of $84." (Total, $114.) Defendant argues that compensation for total incapacity should have been awarded for 416 weeks. He does not say why. He offered no evidence to prove that his injuries to his back and shoulder were permanent, nor that they would incapacitate him from working for any considerable length of time. Indeed, most of his evidence related to his alleged injuries of October, 1916, and June, 1917; and the compensation which he did receive for his injuries of August 17, 1917, were liberal, even generous, when measured by the evidence offered in support thereof. The judgment is affirmed. All the Justices concurring. Under Gen. St. 1915, § 7344 (Code Civ. "Court further finds on proof offered that the Proc. § 440), providing that land not exempt by plaintiff was injured in mine No. 6 of the de-law shall be subject to payment of debts and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes, liable to be taken on execution and sold in the In the case of a "judicial sale," as distinguished from a sale by virtue of a general execution, the court actually or presumptively adjudicates every matter essential to the propriety and validity of the sale decree. [Ed. Note.-For other definitions, see Words and l'hrases, First and Second Series, Judicial Sale.] [1, 2] The plaintiff made final proof under his homestead entry, and received a final receipt on November 22, 1912. The patent followed on March 25, 1913. On December 2, 1912, judgment was rendered by a justice of the peace in favor of the defendant and against the plaintiff, on a grocery bill then more than 6 months overdue. A transcript of the judgment was filed in the district court on December 4th. On January 29, 1915, the defendant caused execution to issue, which the sheriff levied on the land in controversy. The land was sold to the defendant, the sale was confirmed, and a sheriff's deed was duly issued and recorded. Immediately after receiving the sheriff's deed the defendant sold the building on the land, and later sold and conveyed the land itself. The defendant testified that at the time he filed the transcript in the district court he knew the plaintiff had filed on the land as a government homestead, had made final proof, and had received his final receipt. The plaintiff testified that at the time the legal proceedings described were taken he was absent from the state, and knew nothing of them until after the sheriff's deed was recorded. The plaintiff's position is that the proceedings were perfectly regular, in the sense they were conducted according to all the statutory formalities, but that the defendant abused legal process, and thereby de 6. EXECUTION 242-SHERIFF'S SALE-CON-prived the plaintiff of his homestead, con FIRMATION. When sheriff's return of sale comes before court for confirmation, the proceeding may be and commonly is ex parte, and confirmation may take place on motion of sheriff or of purchaser or on court's own motion, and at any time without notice to anybody, and it usually follows an inspection of writ and return. Appeal from County. District Court, Finney Action by Harry H. Brewer and another against A. H. Warner. Judgment for defendant, and plaintiffs appeal. Reversed, and remanded for a new trial. H. O. Trinkle, of Garden City, for appellants. Richard J. Hopkins, Asst. Atty. Gen., and R. W. Hoskinson, of Garden City, for appellee. BURCH, J. The action was one for damages for depriving the plaintiff of his government homestead, by means of a sale under execution, to satisfy a debt contracted prior to issuance of the patent. The defendant prevailed, and the plaintiff appeals. The petition tendered other issues than the one stated. They were either waived by the plaintiff, or were properly adjudicated against him, and will receive no further attention. trary to the express prohibition of the federal statute: "No lands required under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor." U. S. Rev. Stat. § 2296 (U. S. Comp. St. § 4551). The defendant's position is that confirmation of the sheriff's sale constituted an adjudication that the land was subject to sale and lawfully sold, and that the plaintiff is not at liberty to attack that adjudication collaterally, as by the present action. The statute provides that lands "not exempt by law" shall be subject to payment of debts, and shall be liable to be taken on execution and sold in the manner prescribed. Gen. Stat. 1915, § 7344 (Code Civ. Proc. § 440). The phrase "not exempt by law" includes federal as well as state law. The federal statute is open to interpretation. Under certain circumstances a government homestead may be sold to satisfy debts contracted before patent, nothwithstanding the declaration that "no lands * * shall in any event become liable," etc. In applying the statute questions of fact arise: When was the debt created, and when was the patent issued? There is abundant room, therefore, for exercise of the ju For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) * dicial function, and if, in exercise of that The present statute, enacted in 1909, function, it has been adjudicated that home-reads as follows: steaded land was subject to sale on execution, it is of no consequence that the court erred. The adjudication cannot be attacked except by direct proceeding in the same court or by appeal. Was confirmation of the sheriff's sale in this case such an adjudication? [3, 4] In considering the question just stated, the distinction between a judicial sale proper and a sale by virtue of a general execution must be kept in mind. Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, 100 Am. St. Rep. 459; Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61. In the case of a judicial sale the court actually or presumptively adjudicates every matter essential to the proprie ty and validity of the sale decree. Powers which the court possessed at the time of entering the decree may be exercised at the time of confirmation; and in a given instance It may be presumed that this occurred. In the case of a sale under general execution the sheriff does not act as the agent of the court. The court has not specified the property or adjudicated the lien, and has not otherwise been concerned with the course which the sheriff shall pursue. In executing the process the sheriff has no guidance but the law, and takes his chance of finding and levying on property which is not ex empt. [5, 6] The purchaser at a sheriff's sale is not an innocent purchaser. He knows the limitations on the sheriff's power, and buys what the sheriff can sell, and no more. When the sheriff's return of sale comes before the court for confirmation, the proceeding may be, and commonly is, ex parte. Confirmation may take place on the motion of the sheriff, or of the purchaser, or on the court's own motion, and at any time, without notice to anybody. Confirmation usually follows an inspection of the writ and the return, and, so far as the record discloses, confirmation in this case was typical. The order of confirmation is, indeed, an adjudication of all the facts involved in the inquiry (Carter v. Hyatt, 76 Kan. 304, 306, 91 Pac. 61); but how does the question of the exempt character of land seized and sold get into the case at that time? Formerly the statute relating to confirmation read as follows: "If the court, upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied on the legality of such sale, and order that the officer make to the purchaser a deed for such lands and tenements. Gen. St. 1868. c. 80, § 458. "The sheriff shall at once make a return of all sales made under this act to the court; and the court, * if it finds the proceedings regular and in conformity with law and equity, shall confirm the same, and direct that the clerk make an entry upon the journal that the court finds that the sale has in all respects been made in conformity to law, and order that the sheriff make to the purchaser the certificate of sale or deed provided for in this act." Gen. Stat. 1915, § 7404. Under the old law, if the proceedings were regular, that is, if the machinery of the law had been manipulated according to rule, the court was obliged to confirm the sale. Thus, inadequacy of price, unless so gross as to indicate no real sale, was not ground for setting aside a sale. The present statute was designed to give the court larger authority and larger discretion in dealing with sheriffs' sales, in order to promote jus tice. It is impossible to say that the statute of 1909 enlarged the issues presented by a motion to confirm to include the subject under consideration. The subject is purely one of legal, and not of equitable, cognizance, and is of precisely the same character as it was before 1909. The sheriff is forbidden to subject exempt property to execution process. The execution debtor's right is a legal right, and neither the creditor nor the purchaser, nor any one else, has any equities in the matter. The result is we are still confronted by the old question, in the old form: What does confirmation of a sheriff's sale made under a general execution adjudicate? The decisions of this court are uniform and unanimous to the effect that confirmation of an execution sale does not adjudicate the fact that the land sold was lawfully subject to seizure and sale. The sheriff may sell land not subject to execution, because it belongs to a person other than the execution debtor. In that event confirmation adjudiCapital cates nothing against the owner. Bank v. Huntoon, 35 Kan. 577, 11 Pac. 369, syl. 1. Indeed, the owner is not even concluded by denial of his motion to set aside the sale, interposed before confirmation. White-Crow v. White-Wing, 3 Kan. 276; Harrison & Willis v. Andrews, 18 Kan. 535, syl. 3; Mills v. Pettigrew, 45 Kan. 573, 26 Pac. 33, syl. 2. The case last cited is instructive. Pettigrew claimed title under a deed executed by the receiver of a railroad company. Mills claimed title by virtue of a sale made under an execution issued to collect a judgment against the railroad company. Pettigrew tried to enjoin the sale, but the proceeding failed, otherwise than on the merits. Pettigrew then contested the sale by motion to set it aside, was defeated, and the sale was confirmed. Pettigrew then commenced an [ go before a jury in an action of ejectment. It action of ejectment against Mills, and the decision of this court was that he was not concluded by the adjudication denying his motion and confirming the sale. The principle just discussed applies when exempt property is sold. The sheriff suffers from a defect of power. He has no more authority to seize and sell property of the judgment debtor which is exempt than he has to seize and sell property of a stranger. He cannot create a lien, to be adjudicated by confirmation, by simply seizing and selling land withdrawn by law from the scope of his official activity. The issues on confirmation are precisely the same in one instance as in the other. The judgment of confirmation adjudicates no more in one case than in the other, and this court has so decided. Gapen v. Stevenson, 17 Kan. 613, syl. 3. In the case just cited land was attached for the debt of Gapen, who moved to discharge the attachment on the ground the property was the homestead of himself and wife. The motion was denied, and after judgment a decree was entered for sale of the property to satisfy the judgment. After sale Gapen and his wife joined in a motion to set aside the sale, on the ground the land was their homestead. The motion was must be remembered that this decision on the motion is not conclusive as to the facts. If the conveyance was in good faith, and for a valuable consideration, or if the property is her homestead, these facts can be shown in defense to writ of assistance runs to put him in possession. an action of ejectment by the purchaser. No He must bring his action at law, and either party will then be entitled to a jury." 10 Kan, 180. There is no reason for saying that adjudication of the motions to set aside and to confirm would have been more inclusive, or of more force against Treptow, if he had presented the homestead question instead of his wife. Very clearly adjudication of the motion to confirm would not have foreclosed further litigation if the confirmation had been ex parte and the homestead question had not been presented at all. The defendant cites the case of Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385, 84 Am. St. Rep. 372, in which an administrator's sale and deed of a government homestead were collaterally attacked by a motion to set aside a subsequent sheriff's sale. The probate court, having jurisdiction over the subject, had adjudicated liability of the land to apdenied. In this court the wife's appearance propriation for payment of debts, and it was was disregarded, and the appeal was dispos- held the adjudication, even if erroneous, ed of as if Gapen alone had moved to set could not be collaterally impeached. The aside the sale. It was said the motion to defendant also cites the case of White v. set aside the sale was in effect a renewal of Houser, 98 Kan. 645, 158 Pac. 1123. In that the motion to discharge the attachment, and case Krouse obtained a judgment against so was virtually, but not strictly, governed White. Land was attached, the attachment by the doctrine of res judicata. Since, how- was confirmed, the land was sold, and the ever, the motion had once been denied, and sale was duly made and confirmed. Houser because the decision on the motion would was subrogated to the rights of Krouse. "not affect the ultimate rights of the parties The land sold in the Krouse Case was in a regular suit involving the same issues" White's government homestead. The sale (page 618 of 17 Kan.), the court saw no reason was upheld, not because the confirmation to interfere with the decision of the district adjudicated the homestead question adversecourt overruling the motion on the point ly to White, but because liability of the land presented, that the land was a homestead. to seizure and sale had been determined in In the case of Treptow v. Buse, 10 Kan. the principal judgment, and the sheriff, in 170, judgment was rendered against Trep-making the sale, acted pursuant to an order tow by a justice of the peace, an abstract of of the court itself establishing the lien and the judgment was filed in the district court, directing the sale. execution was issued, and land was sold. The court concludes that the order conTreptow's wife moved to set aside the sale, firming the sheriff's sale did not adjudicate on two grounds: First, that she owned the that the land was lawfully subject to approperty; and, second, that it was the home-propriation to satisfy the judgment on stead of herself and husband. The motion was denied, and a countermotion to confirm was allowed. In the opinion the court said: "We cannot say that the district court abused its discretion when it decided to let the question which the execution was issued. The judgment of the district court is reversed, and the cause is remanded for a new trial. All the Justices concurring. (105 Kan. 249) CARDWELL v. UHL. (Supreme Court of Kansas. (182 P.) (No. 22122.) (Syllabus by the Court.) 1. SALES 409 ANTICIPATORY BREACHACTION FOR DAMAGES. [1] 1. One of the contracts, entered into on October 16, 1916, called for a delivery within 60 days, or by December 15th. The action was begun on December 13, 1916. The defendant asserts that it was prema turely brought. There was evidence, which the jury must be deemed to have accepted, that the defendant on November 30th exWhere a seller who has agreed to deliver plicitly declared that he would not carry out goods within a certain time notifies the buyer either of the contracts. The plaintiff was that he will not perform his contract, the latter justified in treating this as an anticipatory may treat such action as an anticipatory breach and bring an action for damages without wait-breach, and there was no occasion to delay ing for the expiration of the period originally the bringing of the action until the time allowed for delivery. originally fixed for performance. 13 C. J. 701; 6 R. C. L. 102, 103, 106; Cooper v. 2. SALES 88-RULES OF Board of TRADE- Bower, 78 Kan. 156, 163, 96 Pac. 59; DraQUESTION FOR Jury. per v. Miller, 92 Kan. 695, 141 Pac. 1014. The plaintiff pleaded that the rules of the The other contract provided for a delivery Board of Trade had been made a part of a con- within a reasonable time, or as soon as the tract for the sale of grain to him. The dedefendant could procure cars. Complaint is fendant answered, denying the contract and al-made because the court did not instruct the leging that the Board of Trade was a gambling jury as to what constituted a reasonable concern. No reply was filed. Held that, as no proof was made of the rules of the Board of time and because there was no evidence as Trade, and as the plaintiff did not in any way to when the cars could have been procured. rely upon them, there was no occasion for sub- The contract having been repudiated by the mitting to the jury any issue concerning that defendant, these matters became immaterial. body. [2] 2. The petition alleged as to each contract that it was orally made, and that the plaintiff at once mailed the defendant a written confirmation "according to the rules of the Board of Trade which was made a 3. SALES 52(2)—PRACTICE OF CONFIRMING ORAL CONTRACTS EVIDENCE-CONFIRMATIONS. Where there is evidence of a practice among grain dealers, which had been followed in prior part of the said contract." The answer contransactions between the parties, to mail let-tained denials that the contracts had been ters of confirmation of oral contracts, such confirmations are admissible in corroboration of testimony that oral contracts to which they refer were made. 4. SALES 418(7)-BREACH OF CONTRACT BY BUYER-FAILURE OF SELLER TO BUY ELSEWHERE-COMPLAINT. One who, having agreed to deliver goods within a fixed time, renounces the contract, cannot complain that the buyer delays for a short time to purchase elsewhere (giving him the opportunity meanwhile to reconsider and carry out his agreement), at least where no increase in the market price is shown to have occurred in the interval. made, and "that the defendant ever had anything to do with the rules of the Board of Trade of Kansas City or elsewhere, and which he alleges is a gambling concern." No reply was filed, and no reference was made to the Board of Trade in the instructions. The defendant argues that his allegation that it was a gambling concern stood admitted, and that the trial court should have given an instruction regarding it. The statement concerning the Board of Trade was obviously inserted in the petition as a foundation for giving the letters of confirmation more force than they would otherwise have. No proof was made or attempted as to the rules of the Board of Trade concerning confirmation or Appeal from District Court, Shawnee anything else. There is nothing in the recCounty. Action by M. W. Cardwell, doing business as the M. W. Cardwell Grain Company, against Brigham Uhl. Judgment for plaintiff, and defendant appeals. Affirmed. Waters & Waters, of Topeka, for appellant. Tinkham Veale, of Topeka, for appellee. MASON, J. M. W. Cardwell recovered a judgment against Brigham Uhl on account of his failure to perform two contracts for the delivery of wheat. The defendant appeals. ord to suggest that the contracts sued upon, if made, did not contemplate the actual delivery of the grain. The character of the Board of Trade therefore could not affect the plaintiff's rights herein. [3] 3. The defendant complains of the instructions given upon the issue as to whether or not the contracts were entered into. Criticism is made of an instruction that no particular form of words is necessary to constitute an oral contract, but it appears to be unobjectionable. Complaint is also made of a reference in the charge to the letters of confirmation. These letters were not given the controlling force sometimes attributed to such communications. The court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |