said in the contract about rye, and that the wheat furnished was clean wheat. The contract was made first by conversation over the telephone, and afterward a confirming letter was sent by each party to the other. The letters disagreed as to the terms of the contract. Stephans denied receiving the plaintiff's letter, but there was evidence which indicated that he did receive it. Neither party objected to the terms outlined in the letter of the other. The rule contended for by Stephans was clearly stated in Shear Co. v. Thompson, 80 Kan. 467, 102 Pac. 848, where the court said: "The construction of written instruments is a question of law for the court, and ordinarily it is error to submit such a question to the jury." This language was quoted in Frazier v. Railway Co., 97 Kan. 285, 288, 154 Pac. 1022, where a number of other decisions are cited. The rule itself implies that there is an exception to it. The exception was stated in Frazier v. Railway Co., supra, in a quotation taken from 9 Cyc. 591, as follows: "But where the construction of a written contract depends upon extrinsic facts as to which there is a dispute, its construction is a mixed question of law and fact, and is for the jury under proper instructions from the court." Under the evidence, there was nothing for the court to do but instruct the jury to find what the terms of the contract were, and base the verdict thereon. 13 C. J. 781; 6 R. C. L. 249, 250; 2 Page on Contracts, § 1129. There was no error in giving the instruction. [2] 2. Complaint is also made of the following instruction: livery was $2.91 a bushel; that the amount The judgment is affirmed. (105 Kan. 198) MARKHAM v. WATERMAN et al. (No. 22041.) (Supreme Court of Kansas. July 5, 1919.) (Syllabus by the Court.) BANKRUPTCY 303(3)-PUTTING PROPERTY BEYOND REACH OF CREDITORS EVIDENCE. The facts concerning the acquisition of a farm by a wife, some 15 months prior to the bankruptcy of her husband, examined, and held to show no basis for the contention that the farm was purchased with the moneys of the husband with the design of putting his property beyond the reach of creditors. Appeal from District Court, Washington County. Action by Harvey Markham, as trustee in bankruptcy of the estate of William L. Waterman, against William L. Waterman and wife. Judgment for defendants, and plaintiff appeals. Affirmed. See, also, 181 Pac. 621. Edgar Bennett, of Washington, Kan., for appellant. "The jury are instructed that, if you find for the plaintiff, the plaintiff's measure of damages is the difference between what said wheat would have been worth at Bloom, Kan., for seed wheat, if it had been free from rye, on the J. R. Hyland, of Washington, Kan., C. L. date of its delivery at Bloom, Kan., and what Hunt, of Concordia, F. C. Baldwin, of Washit was worth on the market at Bloom, Kan., |ington, Kan., and Clyde L. Short, of Concoron that date in the condition in which it was dia, for appellees. actually received. To any amount of damage you allow plaintiff you will add 6 per cent. per annum from September 1, 1917. Plaintiff cannot recover more than the amount of damage claimed in his petition, with interest added thereto." Stephans argues that the plaintiff "must prove that the failure of the appellant to comply with the contract resulted in damage to the appellee, and it must introduce evidence as to just how much that damage was." The plaintiff did what Stephans contends should have been done. It introduced evidence to prove that the contract price for the wheat was $2.85 a bushel; that the market price for seed wheat of the kind contracted for at the time and place of de DAWSON, J. The plaintiff is the trustee in bankruptcy for the estate of the defendant William L. Waterman. The defendant Mary K. Waterman is William's wife. In this action the plaintiff asserts his ownership, as trustee in bankruptcy, of a farm acquired by Mary in January, 1916, some 15 months before the bankruptcy of her husband. This claim is founded upon plaintiff's assumption that the farm was purchased with the moneys of William, with the design of putting his property beyond the reach of creditors; he being then heavily in debt. Plaintiff was defeated in the trial court, and his appeal here is simply the contention that the judgment below should have been in his favor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 63-COSTS-PARTIES. The costs of the proceeding cannot be adjudged against persons not before the court. Quo warranto proceeding by the State of Kansas, on relation of the Attorney General to oust the Combination Oil & Gas Company from exercising corporate privileges and franchises within the state. Jurisdiction retained until election of a new board of directors of respondent, etc. (182 P.) We think not. There is no question of 13. QUO WARRANTO law in the case. It all turns on the question of fact, and that question is singularly free from difficulty. That portion of the evidence which the trial court saw fit to believe -and which was not contradicted, although inferences seeking to discredit it are attempt ed-shows that William and Mary were married over 20 years ago, that on her marriage her father gave her a small start in cattle, and that for many years she and her husband did not keep a strict record of what part of the increasing herd belonged to her and what part to him; but in 1910 she received $300 from her father's estate, and in 1912, she received $100 from the same source. Still later she received additional sums, $50 and $240. She loaned $400 of this money to her husband. This money was to be repaid on her demand. In 1916, William's financial embarrassments impelled Mary, for her own protection, to deal more formally with her husband in business affairs. She caused him to purchase this farm for her. The price was $6,400. She raised $5,000 of the purchase price by mortgaging the farm for $5,000 and she borrowed $1,000 from her brother, and her husband repaid to her the $400 which he owed her. Other minor incidents need not be narrated. Her crops were good, and she has thereby reduced her indebtedness for the farm to some extent. No shadow of error appears, and the judgment is affirmed. All the Justices concurring. (105 Kan. 340) STATE ex rel. ATTY. GEN. v. COMBINA- (Syllabus by the Court.) Richard J. Hopkins, Atty. Gen., S. M. Brewster, of Topeka, T. F. Railsback, of Kansas City, and Monroe, McClure & Monroe, of Topeka, for plaintiff. Wilson, Madalene & Hudson, of Wichita, for defendant. JOHNSTON, C. J. This is a quo warranto proceeding brought by the state on the relation of the Attorney General to oust the Combination Oil & Gas Company from exercising corporate privileges and franchises within the state. [1, 2] Upon application of the plaintiff, a receiver was appointed who took possession of the property of the defendant and is conducting its business during the pendency of this proceeding. On February 6, 1919, Hon. F. Dumont Smith was appointed as a commissioner to hear and record the testimony and to make findings of fact and law thereon. At the end of a hearing in which testimony was taken as to the abuse of privileges granted to the defendant, and of certain violations of law by it, the commissioner found as a matter of mixed law and fact that the state had made a case in the following particulars: "(1) That the corporation had no right to change its plan of sale and increase the selling price of its stock without the consent of the Blue Sky Board. "(2) I find that the sale to Groth was a sale FORFEITURE OF in good faith of its stock, but that Groth as 1. CORPORATIONS Courts proceed with caution in declaring a forfeiture of the privileges and corporate capacity of a corporation, and where innocent owners of the property, as well as the public, would sustain severe losses from a dissolution, and the purposes of the law can be subserved by a partial ouster, the latter will be adjudged. 2. CORPORATIONS 613(7)—FORFEITURE OF CHARTER-DISCRETION OF COURT-PARTIAL OUSTER. agent of the company was guilty of the grossest kind of fraud and misrepresentation and the company is responsible for his fraud. "(3) I find that the defendant failed to file with the Blue Sky Board copies of its advertising matter, and therein violated the law, and its advertising matter was misleading. "(4) I find that the defendant declared a diviIdent which was not warranted by the condition of the corporation, and was a violation of law." As a remedy the commissioner recommendIn a proceeding in quo warranto in which ed to the court that the drastic remedy of a a corporation is charged with abuses of the complete ouster be not applied as the disfranchises granted to it, and with unlawful solution of the corporation, and the dispopractices by its board of directors, the charges sition of its assets would result in severe are found to be in part sustained, and exercis ing the discretion vested in the court, it is ad- loss to innocent stockholders and in some judged that there be a partial ouster by the measure to the public, and that in his opinprohibition of the abuses and unlawful prac-ion the purposes of the law would be subtices and the selection of efficient and law-ob- served by a partial ouster; that is, by the serving directors. ousting of the directors of the corporation For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and the prohibition of the unlawful practices not before the court. The costs of the case, employed by the directors and agents of the including the fees of the commissioner and defendant. attorneys, will be adjudged against the defendant. It was suggested that the defendant should take the steps necessary to change its official management, and to that end there should be supervision of the election of directors soon to be held as well as the transfer of the property and business of the corporation to the new board of directors. It was also recommended that the defendant pay the costs of the proceedings; the same to be charged against the stock of the offending directors. The state moves for the confirmation of the report of the commissioner, and the defendant asks for a modification of it in respect to the making of the present directors ineligible for election, and also as to the supervision of the annual election. There is also objection to the proposed order of charging the costs of the proceeding against the stock of the present directors. The report of the commissioner, which was well considered, meets with little objection from the parties, and there is not much dispute between them as to the judgment Judgment accordingly. (105 Kan. 305) HORVILLE et al. v. LEHIGH PORTLAND (Supreme Court of Kansas. July 5, 1919.) (Syllabus by the Court.) 1. APPEAL and Error 655(4), 766-RIGHT OF APPEAL-STATUTE. The Code provision that "a case appealed shall be docketed in the appellate court with the same title that the case had in the trial court, except that the parties shall be designated as appellant and appellee" (Code Civ. Proc. § 579 [Gen. St. 1915, § 7483]), considered and in this case the court declines to order appellant's abstract and brief stricken because of the violation of the rule, but in the future may be obliged to compel its strict enforcement. that should be entered. The courts administer the drastic remedy of dissolution with caution, and we do not think that the facts developed in the present case warrant the application of that remedy here. The state is not insisting on a dissolution and final disposition of assets, but is asking for refor. mation in business methods. The owners of the property as well as the public would sustain substantial losses if the company was deprived of corporate capacity, and it is the view of the court that the wrongs and practices complained of can be correct-3. APPEAL AND ERROR 197(3), 889(3) ed and the public protected without resort to so harsh a remedy. In an action to quiet title which involves the validity and effect of a single instrument (a deed conveying oil and gas), the petition which relies upon the ground of abandonment, and also that the instrument was fraudulently altered, and is void because it was not recorded within 90 days after its execution and was not listed for taxation, states but one cause of action. The evidence as to the unlawful practices of the present board of directors and its agent makes it manifest that they should not continue to administer the affairs of the corporation, and this change can be effected at the annual election to be held in August of this year. To aid in effectuating the change the annual election will be supervised by the state bank commissioner, who shall give due notice of the election to all stockholders of the corporation. Stockholders, if they desire to do so, may send their proxies to him, authorizing him to act for them at that election. The court will retain jurisdiction of the case until a new board of directors has been chosen, when, if the circumstances warrant, the receivership will be closed and the property of the corporation transferred to the new board. [3] The recommendation that the costs of the proceeding be charged against the of fending directors cannot be adopted, as they were not made parties to the action and are AMENDMENT REGARDED AS MADE - CON On the trial of such an action the proof showed that the instrument had never been recorded, and, without the petition having been amended, and over defendant's objection, plaintiffs were permitted to prove that defendant and its predecessor had never listed the instruinent for taxation. Held, that the petition will be considered as amended to conform to the proof, and further held that, in the absence of any request for a continuance, or claim that meet the evidence, and neither claimed below defendant was not prepared at that time to nor in this court that the property had, in fact, been listed for taxation, its rights were not prejudiced by the admission of the testimony, notwithstanding the court gave judgment for plaintiffs on the express ground that the instrument is void because of the failure to record it within 90 days from its execution, coupled with the failure to list it for taxation, under the provisions of section 11280, Gen. St. 1915. Appeal from District Court, Allen County. Action by L. E. Horville and others against the Lehigh Portland Cement Company. Judg For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) ment for plaintiffs, motion for new trial de- [ submitted the case to the jury to answer a nied, and defendant appeals. Affirmed. number of questions of fact. Baxter D. McClain, of Iola, for appellant. The jury was unable to agree upon the questions, and was thereupon discharged, the court reserving the questions of fact as well as the questions of law for determination at PORTER, J. The action was one to cancel a subsequent time. Later, and at the same and set aside an instrument described as a term, the court made findings of fact. The deed for gas, and to quiet plaintiffs' title to court found that neither the defendant nor a tract of land owned in Allen county. The the Iola Portland Cement Company had petition, after stating the ownership of the caused the deed to be recorded down to the plaintiffs, alleged that on the 8th day of time of the commencement of the action, and March, 1907, they executed and delivered the that from the date of the instrument to the instrument to the Iola Portland Cement Com- commencement of the action neither the Iola pany, a copy of which was attached to the Company nor the Lehigh Company had listed petition; that the instrument has never been the instrument for taxation in Allen county; recorded by the grantee or its successor, the that the defendant and also the original Lehigh Portland Cement Company, and is grantee had refused a demand made by the held by defendant unrecorded. plaintiffs prior to the commencement of the The grounds specifically alleged for cancel-action to cancel the deed. The court expressing the instrument were: First, that the in- ly stated that no finding was made as to the strument had been altered and changed by issue respecting the alleged alteration of the the grantee or its agents, without the consent instrument, but held that, inasmuch as the of the plaintiffs, and with intent to deprive grantee and its successor, the defendant, had plaintiffs of their oil rights in the land (the failed and neglected to record the instrualleged alteration being the interpolation of ment, and "likewise failed and neglected the words "oil and" before the words "natur- during such period to list for taxation the al gas"), so that the instrument, after being property" conveyed by the instrument, it was altered, purported to convey not only the void at the time of the commencement of the natural gas, but the oil rights in the land; action, and, being void, the plaintiffs were second, that after using the lands for the entitled to have it canceled and their title purpose of obtaining natural gas, the grantee quieted. A motion for a new trial was overand its successor had abandoned the premis- ruled, and the defendant appeals. es for more than ten years, and had failed and neglected to reconvey the premises as provided in the instrument, and it was alleged that the instrument constitutes a cloud upon plaintiffs' title. The defendant demurred generally to the petition and specially on the ground that two or more causes of action were improperly joined. The demurrer was overruled, and defendant answered, admitting its interest as the successor of the original grantee, claimed to be the owner and holder of the conveyance and of the rights incident to the use and production of oil as well as natural gas, alleging that it was continuously in the ownership and possession of the oil and gas rights in the land. The other allegations of the petition were denied. The issues having been joined, the court called a jury, and submitted to them certain questions of fact to aid the court in determining the legal questions involved. [1] The plaintiffs insist that defendant's abstract and brief should be stricken, because the defendant has changed the title of the case in this court, and reversed the parties, so that it appears upon the docket as an action brought by the Lehigh Portland Cement Company, as plaintiff, against the owners of the land, as defendants, contrary to the express provisions of section 579 of the Code of Civil Procedure (Gen. Stat. 1915, § 7483), which reads: pellate court with the same title that the case "A case appealed shall be docketed in the aphad in the trial court, except that the parties shall be designated as appellant and appellee." One of the reasons for the change in the Code in 1909 was the confusion which always resulted from the practice of altering the original title of an action by reason of the appeal being taken by the defendant. Notwithstanding the length of time since the Before the case was submitted to the jury Code was changed, briefs and abstracts and and after the evidence was closed, the plain- other papers are not infrequently filed here tiffs called the county assessor, who had with the appellant marked as plaintiff, when, charge of the record of the assessment rolls in fact, the appellant is the defendant, reof property listed for taxation, and, over the sulting in more or less confusion in the objection of the defendant, showed that the clerk's office, and imposing upon the court instrument under which the defendant claims additional labor in order to discover which had never been listed for taxation. Evidence party brought the action. Up to this time was also offered, but apparently without ob- the court has never imposed so harsh a penjection, to show that the instrument in ques-alty for the carelessness as to strike the tion had never been recorded in the office of briefs and abstracts from the files, but in the the register of deeds. Thereupon the court future may be obliged to adopt some method to bring about a strict enforcement of the statutory rule. In the present case the suggestion that the abstract and brief be stricken will not be followed. [2] The first four specifications of error are based upon the contention that there were two causes of action, one going to the validity of the instrument, and the other relating to the possession of the property. It was a suit to quiet title for a number of reasons, and there was nothing inconsistent in the grounds alleged. The plaintiffs could rely upon the ground of abandonment, and at the same time claim that the lease had been fraudulently altered. Only one instrument was involved, although it was alleged to be void on two separate grounds. There was nothing to prevent the plaintiffs from showing both. Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530, 30 L. R. A. (N. S.) 194. The demurrer was rightly overruled. The fifth assignment of error relates to the sufficiency of plaintiffs' evidence tending to show an alteration of the instrument. That issue was not passed upon by the trial court, and the error complained of needs no further comment. It was within the discretion of the trial court to permit the plaintiffs to open up the case and introduce additional evidence after they had once closed their case. Matters of this kind are always within the sound discretion of the court. The court might have refused it without abuse of discretion. "The lease does not become void by the mere failure to record it, but only when there is the additional delinquency of omitting to list it for taxation. If it is recorded as the statute en joins, the taxing officer has an opportunity to and if the owners omit to record the lease and find and assess the property conveyed by it; also omit to list it, and thus bring it to the attention of the taxing officials within the time fixed for listing property, the lease then becomes void, and may be so declared by the court at the instance of any interested party." 83 Kan. 143, 109 Pac. 1005. In that case the owner of the mineral fail ed to record the lease within the prescribed time, and also failed to list the property for taxation, and the judgment deciding that it was void was affirmed. Here, likewise, it took not only the failure to record the lease within 90 days from its execution, but also the failure to list it for taxation. The petition alleged the failure to record, but did not allege the failure to list for taxation. At any time before the case was closed, and even after the judgment, it was within the discretion of the court to allow the plaintiffs to amend their petition to conform to the facts. Technically, without an amendment to the petition, evidence that the defendant had failed to list the minerals for taxation was not within the issues. But, in the absence of any claim that defendant, in fact, had listed the property for taxation, or that another trial would bring about a different result, it would be folly to order a reversal merely because the evidence was admitted without an amendment. In furtherance of justice, the petition should be considered as amended to conform to the proof. This should be the rule in the instant case, because defendant made no objection to the introduction of the proof on the ground that it was not prepared at that time to meet it with other evidence; it made no request for a continuance, nor any showing why an inquiry as to whether it had listed the property for taxation might not have been tried at that time as well as at another. The defendant, for these reasons, wholly fails to show that the mere admission of the evidence, without an amendment, prejudiced its rights. [3] The instrument in question, reading as the plaintiffs contend that it should read, expressly grants, bargains, sells, and conveys to the grantee, "its successors and assigns, all the natural gas in and under" the premises in question; and, reading the instrument as the defendant claims it should read, it grants, bargains, sells, and conveys the "oil and natural gas," etc. It cannot be questioned that the instrument separates the minerals from the surface, and comes within the provisions of section 1 of chapter 244 of the Laws of 1897 (Gen. Stat. 1915, § 11280), which reads: "That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or It is said, however, that upon a new trial in others, the right to such minerals shall be valued and listed separately from the fee of said the defendant "would be enabled to avail itland, in separate entries and descriptions, and self of all defenses at hand, as, for instance," such land itself, and said right to the minerals that the property was included in other proptherein, shall be separately taxed to the own-erties returned for taxation by its predecesers thereof respectively. The register of deeds sor. There was nothing to prevent the deshall furnish to the county clerk, who shall furnish on the first day of March each year, to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: Provided, that when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation." fendant from introducing testimony of this character, unless it was taken by surprise and was not able to procure its evidence at that time. If that were the situation, it was the duty of the defendant to ask for time in which to obtain the testimony. It is suggested that the following questions were all available as defenses if a new trial In Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. should be granted: (1) Is the action barred 1002, it was said: by the statute of limitations, or are the plain |