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was alleged to have been negligent in respect | claiming any, he should not have been allowof the affairs of the partnership. But it was held that, as Insley was also careless, he could not shirk his part of the responsibility and call upon Shire to make good the loss. It was said that it was the duty of the partners to devote their time and best endeavors to carrying on the business and promote its prosperity, and that, in the absence of any special agreement between them as to the division of labor, each should have given his time and attention to the conduct of the business without regard to the relative services of the several partners. It must be remembered that here the partnership involved but one venture-the handling of this land -and it was necessarily unlike an enterprise such as a general banking business to which the partners would be expected to devote their exclusive attention, and reason dictates a less strict requirement when a mere joint venture is undertaken as to one specific matter, otherwise those engaging in such an undertaking would be compelled to forsake all else and cleave only unto that.

ed to recover on account of the plaintiff's alleged neglect or misconduct (without establishing, by proper evidence, a loss accruing thereby to the firm). Caldwood v. Leiber, 7 Paige, 483; Tutt v. Land, 50 Ga. 340; McConnell v. Stubbs, 124 Ga. 1038, 53 S. E. 698. [2] The fifth finding is to the effect that each partner was to contribute one-half of the money to pay for the land and share equally in the profits and losses. The testimony shows that when the settlement was attempted on March 29, 1906, it was found that the firm had overpaid the former owner of the land something more than $7,200, and he gave the defendant a check for $3,600 as his part, and that this left him owing the plaintiff about the same amount, and that a division of certain firm money was made at that time between the plaintiff and defendant, and that afterwards, when the controversy came up over the commission, each party demanded to be allowed a certain amount for expenses, plaintiff claiming that he had done much advertising, and that the defendant had no more coming in the way of expenses than he had. Upon the trial, the defendant was allowed to prove and recover an expense account of $750. During the introduction of this testimony, the plaintiff asked to be permitted to reopen his case and introduce evidence concerning his expenses in connection with the partnership which was objected to by the defendant and denied by the court. The entire course of the deal indicates that the partnership agreement to di

The leading case of Marsh's Appeal, 69 Pa. 30, 8 Am. Rep. 206, concerned a partnership which carried on a foundry, grain drill, and stove business into which the partners entered upon an equal footing, and by verbal agreement one was to attend to the finances. He voluntarily withdrew, and for some years refused to render any services as a partner. It was found that the services would have been worth $1,000 a year, and that each partner had agreed to take a particular department of the business. It was found, how-vide the profits and losses equally was inever, that a loss was suffered by the firm during the absence of this member amounting to some $5,000. It was held that the other partners could not claim anything beyond an equal share of the common benefit for extra services rendered by them, but that they could charge the delinquent member with the loss occasioned by his refusal to render the services which he had agreed to perform.

- In Williams v. Pedersen, 47 Wash. 472, 92 Pac. 287, 17 L. R. A. (N. S.) 384, the Supreme Court of Washington held that one member of a partnership engaged in a logging business was not, in the absence of an agreement to that effect, entitled to a greater share of the earnings than the other by reason of the fact that the latter was frequently absent and the former did the greater amount of work. In a footnote a multitude of cases is cited from which it appears to be the unquestioned rule that ordinarily one partner is not entitled to compensation for extra services. The general rule is that inattention or misconduct by one of the partners does not entitle the other to an extra share of the proceeds unless damages to the partnership be shown, and, the defendant not being entitled to compensation for extra services and not

tended to be carried out, and, if either party is to be credited with expenses, there is no reason why the other should not be likewise credited. While the petition did not ask allowance for expenses, it did pray for an accounting, and the plaintiff should not be precluded from meeting the defendant's claim for expenses by one of his own, especially when he requested to open up the case and make the proof.

While complaints are made touching many other matters involved, and while the defendant insists that he is entitled to a decree against the plaintiff, we think, with the two exceptions already mentioned, the trial court reached a fair and equitable conclusion. We cannot, however, approve of the allowance of the defendant's expense account without permitting the plaintiff to prove and be credited for his, nor the finding and conclusion of law holding the plaintiff accountable to the defendant for one-half the supposed value of his services for four months of the time during the partnership, in the absence of evidence showing damages to the firm.

The cause is therefore remanded for further proceedings in reference to these two matters only; in other respects the decree is affirmed. All the Justices concurring.

(86 Kan. 826)

premium or other indebtedness of the insurWHITLAW v. ILLINOIS LIFE INS. CO.†ed to the association will be deducted from (Supreme Court of Kansas. April 6, 1912.) the sum insured."

(Syllabus by the Court.)

The contract between the insuring and the reinsuring companies contains provisions 1. Appeal and Error (§§ 90, 93*)-REVIEW-quoted in the answer which the appellee

STRIKING OUT ANSWER.

An order overruling a motion to strike out parts of an answer which does not involve the merits nor determine the action is not appeal able, and can only be reviewed in this court after final judgment in the action.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig §§ 599-611, 643-647; Dec. Dig. $ 90, 93.*]

2. APPEAL AND ERROR (§ 90*) — REVIEW APPEALABLE Order.

An order striking out parts of a reply containing new matter pleaded in defense of new matter contained in the answer, and which involves the merits of the action, and precludes the defense so pleaded, is appealable, and may be reviewed in this court before judgment in

the action.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 599-611; Dec. Dig. § 90.*] Appeal from Court of Common Pleas, Wyandotte County.

Action by Mary M. Whitlaw against the Illinois Life Insurance Company. Judgment for defendant, and plaintiff appeals. versed with directions.

alleges change the above provisions of policies of the class sued upon, so that the failure to make the quarterly payment of a premium when due works a forfeiture ipso facto.

Upon this statement it appears that the principal issue to be tried is simple. Briefly stated, it is whether the terms of the policy or of the contract between the two companies shall govern, conceding that such terms are in conflict. In an endeavor to present this issue, a voluminous answer, amended answer, and a lengthy reply have been filed, and the case is presented here upon 48 assignments of error, based upon rulings on demurrers and motions.

[1] The rulings upon various motions directed against the answer and amended answer will not now be considered, a reply thereto having been filed, and the orders Re-appealed from not involving the merits nor determining the action. Last clause section 565, Civil Code (section 6160, Gen. St. 1909), Stebbins ▼. and section 566 (section 6161). Laird, 10 Kan. 229; A. T. & S. F. Rld. Co. v. Brown, Adm'r, 26 Kan. 443; Ludes v. Hood, 29 Kan. 49. Such orders may be reviewed after final judgment. Hulme v. Differbacher, 53 Kan. 181, 36 Pac. 60.

T. A. Pollock and E C. Little, both of Kansas City, for appellant. A. L. Berger, of Kansas City, for appellee.

BENSON, J. The proceedings to be reviewed in this case relate to the pleadings. The action was to recover upon a contract for reinsurance attached to a life insurance policy. The petition contained a copy of the policy, the certificate of reinsurance, a letter signed by the president and secretary of the appellee, the reinsuring company, and a proposition marked "D" made to and accepted by the company which issued the policy. The amended answer contained, first, a general denial; second, a denial that the documents set out in the petition constituted a contract; and, third, a defense or defenses based upon a contract between the two insurance companies, approved by a federal circuit court in an action brought by a policy holder of the issuing company, in which both companies were parties. The policy provided: "The said association further agrees to continue this insurance without medical re-examination for other ensuing consecutive terms, of 12 months each, during the life of the insured, upon payment on or before the 28th day of February in each successive year of the annual premium.

The annual premium on this policy may, by the consent of the association, be paid in semiannual or quarterly equivalent,

The amended answer contained the following: "This defendant expressly denies that it executed and delivered to the plaintiff the certain writing attached to the said plaintiff's petition marked 'Exhibit D.' This defendant expressly denies that the said Exhibits B, C, and D constituted a reinsurance contract made by the said defendant' to and with Francis M. Whitlaw or the plaintiff herein."

This defense was verified thus: "That the second defense of the foregoing answer is true, and that the defendant denies the execution and delivery to the plaintiff of the certain writing attached to said petition marked 'Exhibit D.' "

A demurrer was filed to this paragraph on the ground that it did not state facts constituting a defense. The denial contained in this defense is not of the execution of the paper alone, but of its execution and delivery to the plaintiff. Delivery to the plaintiff who is the beneficiary only was not necessary; it should have been, and it appears that it was, delivered to the policy holder. It is true that the petition contained a gen* but failure to pay when due any eral averment, probably made through insuch semiannual quarterly equivalent will advertence, that all these papers were dethen terminate this policy, except as here- livered to the plaintiff, but this clause is inafter set forth. In case of claim by immediately followed by the qualifying death, any unpaid portion of the annual statement that the proposition, Exhibit D, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Rehearing denied.

on July 2, 1908. It was also alleged in the reply that the appellee received funds amounting to over $100,000, which as provided in the policy sued upon, and the provisions of the proposition "D," should have been applied to the payment of premiums, and that a share thereof is applicable to the payment of premiums upon this policy. which, when applied, will pay, and more than pay, any premiums otherwise appearing to be in default thereon.

osition "D" there is no statement of any change in the terms of policies with respect to the time of payment of premiums or in the consequences to follow a default, and the appellant contends that the statute under which the proceedings were taken gives no authority to bind policy holders otherwise than upon the proposition which was transmitted to them, and upon which they were authorized and required to vote. Chapter 336, Laws of 1903. The issues which could have been presented by concise statements of the facts, as the Code requires, are obscured by prolixity of pleadings.

was issued to the trustees and policy hold- | on which default is claimed was received by ers, and that the other papers were sent that company and credited upon its books to Francis M. Whitlaw (the insured) and the plaintiff. The concluding part of this defense is only the statement of a legal conclusion of the pleader that the papers referred to do not constitute a contract. This conclusion is erroneous, for they do import a contract of reinsurance, and the defense demurred to was insufficient. It is argued that under several decisions of this court the ruling upon the demurrer is not reviewable at this state of the case. Without considering that question under the The appellant contends that under the provisions of the present Civil Code, it is terms of the policy the certificate of reindeemed proper to express the views of this surance, the letter of confirmation, and the court upon the sufficiency of this part of the proposition submitted to and accepted by answer in view of further proceedings to be the insured, the default, if any, in the paytaken in the case. It should be observed ment due May 30, 1898, did not work a forin this connection that the statute, under feiture, but that any sum then due should which it is claimed that the federal court be credited on the amount due on the policy, proceedings were conducted, provides that while the appellee contends that under the the proposition of a company offering to re- agreement referred to between the cominsure the policies of another company shall panies, approved by the federal court, the be formulated and the substance transmit-policy lapsed by such default. In the propted to the policy holders. Laws 1903, c. 336. The answer in another paragraph avers that this was done, and that to the best knowledge and belief of the pleader Exhibit D of the petition is the summary of the proposition so submitted and transmitted. Thus it appears there was really no material dispute about the facts relating to Exhibit D. The new matter in the reply, pleaded as a defense to the allegations of the answer relating to the federal court proceedings and contract between the two insurance companies, was stricken out on motion of the appellee. The parts so stricken out stated in substance that the insured was not a party to the action in the federal court; that his rights as a policy holder were not in issue in that action; that any order or decree of that court changing the terms of the policy, or in any manner affecting it, except as stated in the proposition "D" were of no effect against the insured and his beneficiary; that, by that proposition and its letter set out in the petition the appellee induced the insured to believe that he would be and was reinsured upon the terms of his policy without change, upon the faith of which he paid his premiums to the reinsuring company, which is now estopped from claiming any such change; that the proposition contained in Exhibit D was authorized and issued by the appellee, and the insured with other policy holders gave his proxy to vote upon that proposition and no other; and that he never consented to, nor became bound to accept, any contract for any other or different terms of insurance than those stated in his policy, and that any contract embracing different terms was obtained fraudulently and deceitfully. The reply also pleaded a custom of the appellee to waive the payment of premiums at the exact date

[2] The appellant had the right to plead new matter of the nature already referred to, stated in his reply, in avoidance, or by way of defense, to that part of the answer setting up the proceedings in the federal court. That the reply was informal must be conceded, but that was a matter for correction in form, and not a sufficient ground for striking it out without ordering such changes. This order had all the force and effect of an order sustaining a demurrer. It involved "the merits of the action or a part thereof" (last clause section 565, Civil Code) and precluded the defense so pleaded to the new matter contained in the answer and is appealable. Had the motion related only to that part of the reply pleading a custom of receiving payments of premiums overdue, an order sustaining it would not have been erroneous since the custom or waiver, if relied upon, should be pleaded in the petition. Surety Co. v. Bragg, 63 Kan. 291, 65 Pac. 272.

The order striking out the reply is reversed, with directions to allow such amended pleadings to be filed as will clearly present the issues, and to proceed with the cause.

(86 Kan. 947)

HURST et al. v. DANA (STATE, Intervener). (Supreme Court of Kansas. Nov. 11, 1911. On Rehearing, April 6, 1912.)

(Syllabus by the Court.)

1. NAVIGABLE WATERS (§ 36*)-LANDS UNDER WATER-TITLE.

The title to the bed of the Arkansas river within the boundaries of Kansas is in the state. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 184; Dec. Dig. § 36.*]

(Additional Syllabus by Editorial Staff.) 2. EVIDENCE (§ 10*)-JUDICIAL NOTICE-GEOGRAPHICAL FACTS.

The Supreme Court takes judicial notice that the Arkansas river is the largest affluent of the Mississippi, except the Missouri, that it is 2,000 miles long, draining an area of 189,000 square miles, that it is navigable for more than 600 miles up from its mouth, that through its long course in Kansas both of its banks were meandered by the government surveyors, that its average width is about one-fourth of a mile, and that several appropriations, amounting in all to $59,000, for its improvement as far up as Wichita, have been made by Congress (Act March 3, 1879, c. 181, 20 Stat. 366; Act June 14. 1880, c. 211, 21 Stat. 187; Act March 3, 1981. e. 136. 21 Stat. 477), and that from Wichita up to the west line of the state it is substantiany the same in width, volume, and character as from Witchita down to the southern boundary.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 13; Dec. Dig. § 10;* Navigable Waters, Cent. Dig. § 12.]

3. EVIDENCE (§ 34*)-JUDICIAL NOTICE-LAWS OF UNITED STATES.

The Supreme Court takes judicial notice that in Act Cong. Feb. 20, 1811, c. 21, 2 Stat. 642, to enable the people of the territory of Orleans to form a constitution and state government, in Act April 8, 1812, c. 50, 2 Stat. 703, admitting Louisiana, in Act March 1, 1817, c. 23, 3 Stat. 349, creating the state of Mississippi, in Act March 6, 1820, c. 22, 3 Stat. 545, authorizing a convention to constitute the state of Missouri, and in the Ordinance for the Northwest Territory, it was provided that the Mississippi river and the navigable rivers and water leading into it or into the Gulf of Mexico should be common highways and forever free as well to the inhabitants of the state as to other citizens of the United States, without any tax, duty, import, or toll therefor imposed by the state.

to a patentee, it remains in the state, regardless of subsequent navigation or navigability. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 184; Dec. Dig. § 36.*] 6. EVIDENCE (§ 51*)—JUDICIAL NOTICE-MODE OF ASCERTAINING FACT.

The court may properly ascertain from sources open to all what knowledge can be gained as to the character of a stream as to navigability in days gone by.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 72; Dec. Dig. § 51.*]

7. NAVIGABLE WATERS (§ 42*) — TITLE TO ISLANDS. Islands in the Arkansas river not surveyed or claimed by the government belong to the state, and may be sold as school land under Laws 1907, c. 378.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 253; Dec. Dig. § 42.*] 8. BOUNDARIES (§ 13*)-WATERS AND WATER COURSES-MEANDERED STREAM.

The meandering of a stream by government surveyors does not fix the boundaries of the patented land, regardless of riparian rights; the meander line being merely for the granted and the water course. purpose of determining the quantity of land

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 95-101; Dec. Dig. § 13.*] Johnston, C. J., and Benson, J., dissenting.

Appeal from District Court, Reno County. Action by Fred Hurst and others against Helen Obee Dana, and the State intervenes. From the judgment, plaintiffs appeal. Reversed and remanded.

F. Dumont Smith, of Hutchinson, and Jno. S. Dawson, of Topeka, for appellants. Prigg & Williams, of Hutchinson, for appellee.

WEST, J. Plaintiff sued to recover possession of certain land in Reno county, bounded on the north by the Arkansas river. The defendant claimed a portion of the tract under a school land purchase and on the theory that it is an island in the bed of a navigable stream, and therefore subject under chapter 378, Laws of 1907, to sale as school land. The plaintiff contended that this portion of the tract was an accretion, and denied the navigability of the river and the existence of an island. All of these

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 49, 50; Dec. Dig. § 34.*] 4. NAVIGABLE WATERS (§ 1*)-TEST OF NAV-questions were submitted to the jury, who

IGABILITY.

Any water, to be navigable, must be susceptible of use for purposes of commerce, or possess the capacity for valuable floatage in transportation to market of the products of the country through which it runs, and must be of practical usefulness to the public as a public highway in its own state and without the aid of artificial means; a theoretical or potential navigation or one that is temporary, precarious, and unprofitable not being sufficient [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 7; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 5, pp. 4675-4684; vol. 8, p. 7728.]

5. NAVIGABLE WATERS (§ 36*)-TITLE TO BED OF STREAM.

If title to the bed of the stream was in the state when land bordering it was granted

found generally for the plaintiff. The defendant appeals, and insists that the court should take judicial notice that the Arkansas river is navigable in such sense as to

vest the title of the bed in the state. Instructions were requested to the effect that the beds of all rivers navigable or meandered belong to the state, and that a riparian owner has no interest in islands formed therein. The one clear question on which a decision is sought is, Who owns the bed of the river? It is argued that from public records, declarations, and enactments we should judicially regard the river as set apart for a public highway for interstate commerce; its bed thereby vesting in the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 122 P.-66

state. It is not pretended that the river is | 288, 19 L. Ed. 74. Section 5251 Revised now navigated or navigable in fact in Kan- Statutes of United States of 1878 (U. S. sas, and the court, as well as everybody else, knows that it is not. But does this conclude the matter?

[2] We take judicial notice that the Arkansas is the largest affluent of the Mississippi except the Missouri; that it is 2,000 miles long, draining an area of 189,000 square miles, and is navigable for more than 600 miles up from its mouth; that through its long course in Kansas both of its banks were meandered by the government surveyors; that its average width is about onefourth of a mile, and that several appropriations, amounting in all to $59,000, for its improvement as far up as Wichita, have been made by Congress. Act March 3, 1879, c. 181, 20 Stat. at Large, 366; Act June 14, 1880, c. 211, 21 Stat. 187; Act March 3, 1881, c. 136, 21 Stat. 477. We also take judicial notice that from Wichita up to the west line of the state it is substantially the same in width, volume and character as from Wichita down to the southern boundary of the state. While the evidence offered on the trial indicated that the north bank is not meandered, the records in the Auditor's office, of which we must take notice, show that the stream was meandered as stated along its entire course in this state.

Comp. St. 1901, p. 3522) provides that: “All the navigable rivers and waters in the former territories of Orleans and Louisiana shall be and forever remain public highways." In Hardin v. Jordan, 140 U. S. 371, 381, 11 Sup. Ct. 808, 811 (35 L. Ed. 428) it was said in speaking of a grant upon meandered navigable streams: "It has never been held that the lands under water, in front of such grants, are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees." In Kregar v. Fogarty, 78 Kan. 541, 545, 96 Pac. 845, 847, it is said: "In disposing of public land bordering upon rivers it is not the policy of the government to reserve title to the lands under water, whether the stream be navigable or not. The government parts with its whole title, leaving the question of boundary, whether the shoreline or the thread of the stream, to be determined by the local law. In case of navigable waters in this state the boundary is at the bank, and the title to the bed of the stream is in the state."

[4] The general test of navigability is well stated in the language quoted with approval in Kregar v. Fogarty, 78 Kan. 544, 96 Pac. 845, which in effect is that any water [3] We likewise take notice that in the act to be navigable should be susceptible of use of February 20, 1811, to enable the people of for purposes of commerce or possess the cathe territory of Orleans to form a Constitu- pacity for valuable floatage in transportation and state government, it was provided tion to market of the products of the counthat the Mississippi river and the navigable try through which it runs and should be of rivers and waters leading into same or into practical usefulness to the public as a pubthe Gulf of Mexico should be common high-lic highway in its own state and without ways, and for ever free as well to the inhab- the aid of artificial means; that a theoretiitants of the state as to other citizens of the cal or potential navigation or one that is United States, without any tax duty, import, temporary, precarious, and unprofitable is or toll therefor imposed by the state. Act not sufficient. Feb. 20, 1811, c. 21, 2 St. at Large, 642. Similar provision was found in the act admitting Louisiana (Act April 8, 1812, c. 50, 2 St. at Large, 703), in the act creating the state of Mississippi (Act March 1, 1817, c. 23, 3 St. at Large, 349), in the act creating the Missouri territory and in the act of March 6, 1820, c. 22, 3 Stat. 545, authorizing a convention to constitute the state of Missouri. A similar declaration was made in the Ordinance for the Northwest Territory. Ever since 1796 government surveyors have by Congress been directed to sectionalize the public lands, and to divide them by north and south lines to the true meridian, and by others crossing them at right angles so as to form townships six miles square, unless where "the course of navigable rivers may render it impracticable." Gould on Waters (2d Ed.) § 69, note. Act May 18, 1796, c. 29, § 9, 1 Stat. 464, provided that "all navigable rivers within the territory to be disposed of shall be deemed to be and remain public highways;" and this has been followed by many other similar enactments.

[5] But present navigability must not be confused with past navigability or setting apart for highway purposes, for we cannot conceive or concede that the title to the bed of a navigable stream to-day in the state will to-morrow be in the riparian owner, because the river has in the meantime filled up or ceased to flow. If, when this land was granted to the patentee, the bed of the stream was in the state, it is in the state now, regardless of present navigation or present navigability. Wood v. Fowler, 26 Kan. 682, 688, 40 Am. Rep. 330. The Supreme Court of Iowa in Wood v. C., R. I. & P. R. Co., 60 Iowa, 456, 459, 15 N. W. 284, 285, held that act of Congress declaring a navigable river unnavigable does not extend the fee of a riparian owner to the center of the stream. It was said: "We have been unable to discover any authority or principle upon which we could hold that the act had that effect. The case is somewhat like that of the vacation of a street. The boundary of the land abutting on the street is not changed. If the adjacent owner was

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