ord as presented, we cannot assume that the motion for a new trial in this case was the same as the one filed in the Kepley Case. The rulings in the trial court assigned for error must be shown by and embodied in the transcript or case made, and it cannot be shown by any other, or by extrinsic evidence. Parker v. Sewing Mach. Co., 24 Kan. 31; Snavely v. Buggy Co., 36 Kan. 106, 12 Pac. 522; Jones v. Kellogg, 51 Kan. 263, 33 Pac. 997. A cause can only be determined in this court upon a transcript or a case made. No transcript is here, and the case made shows the presentation of a motion for a new trial in the Kepley Case, but no motion for a new trial in this case. We cannot go outside of the record, and ascertain if any motion was actually filed in this case, or what such motion, if filed, contained. The omission of the motion in this case, whether omitted by mistake, accident, or otherwise, is fatal to our consideration of the merits discussed in the briefs. It is suggested that the motion contained in the record was filed in this case, and that it was so regarded by all the parties and the court below. If the court had sustained the motion, we might act upon the suggestion, but the motion was overruled. The reasons therefor are not given. All the presumptions are favorable to the ruling of the trial court, and, as it overruled the motion, we cannot say that the motion now appearing in the record was considered as a sufficient motion in this case by the court. Therefore, upon the record as presented, the judgment will be affirmed.

(54 Kan. 519)

PIERCE et al v. STATE. (Supreme Court of Kansas. Jan. 5, 1895.) CONTEMPT-DISCHARGE FROM PUNISHMENT.

1. It is within the power of a district court to permit a party committed for contempt for not obeying an order of the court, or the judge thereof, to purge himself from such contempt.

2. Where a defendant is found by a district judge guilty of contempt in violating an order of injunction issued against him in a civil action, and on account of such contempt there is imposed upon him a fine of $25, and he is also required to make restitution of a certain county warrant issued in violation of the order of injunction, and is committed to jail until he complies therewith, and subsequently he is tried and convicted upon the criminal charge of unlawfully issuing the county warrant, and thereafter he appears before the district court and gives a full statement under oath of his property, shows that he is insolvent, that he cannot make restitution, that he acted upon the advice of two reputable lawyers in issuing the county warrant, disclaiming any intention of committing a contempt of the court or the judge thereof, or any purpose to destroy or impair his authority, and offers to pay the fine, and all of the costs of the proceedings against him, held, the court has jurisdiction to discharge such party from imprisonment, and if, after his imprisonment for a considerable length of time, there is no other alternative than his perpetual imprisonment, it is the duty of the court to discharge such party upon his purging himself of such contempt, and paying the fine and costs imposed. (Syllabus by the Court.)

Error from district court, Barber county; G. W. McKay, Judge.

D. L. Pierce was found guilty of contempt of court, and sentenced to imprisonment. From a judgment of district court denying bis discharge, defendant brings error, and makes application for writ of habeas corpus. Reversed, and prisoner discharged.

On the 7th day of July, 1892, the county attorney of Barber county commenced an action against the board of county commissioners of that county, of whom Daniel L. Pierce was chairman, to enjoin the board from purchasing certain bridges in the county, and from issuing bonds or scrip in payment therefor. On the same day a temporary injunction was granted by the district court, which was personally served by the sheriff upon Pierce. A summons was also issued in the action by the district clerk, on which the words "Injunction allowed" were indorsed. Subsequently, Pierce signed scrip for $1,738.68, payable to R. Lake, for his alleged interest in the Lake City bridge. On the 12th day of July, 1892, the district judge of Barber county, finding that Daniel L. Pierce was guilty of contempt in having violated the order of injunction issued against him, imposed a fine of $25, and required him to make restoration of the county scrip alleged to have been issued in violation of his order, and ordered his commitment to the jail of Barber county until he complied with his order, or was otherwise discharged by law. Thereupon Pierce appealed from the order of the district judge finding him guilty of contempt and sentencing him therefor. This court affirmed the order. The opinion was handed down on April 8, 1893. State v. Pierce, 51 Kan. 241, 246, 32 Pac. 924, and 33 Pac. 368. On the 30th of July, 1892, there was filed in the district court of Barber county an information against Daniel L. Pierce charging him with the unlawful issuance of a county warrant or order, in favor of R. Lake, for $1,738.68, without any account having been presented to the board of county commissioners of that county, as prescribed by the statute. A trial was had at the May term of the court for 1893, and Pierce was convicted. His conviction was affirmed by this court, the opinion having been handed down on December 9, 1893. State v. Pierce, 52 Kan. 521, 35 Pac. 19. After the decisions of this court in State v. Pierce, 51 Kan. 241, 246, 32 Pac. 924, and 33 Pac. 368, and on October 24, 1893, Pierce filed his motion in the district court of Barber county for an order discharging him from imprisonment in the contempt case, and also asking permission to allow him to purge himself of the contempt, and alleging, among other things, his insolvency and inability to make restoration of the county scrip issued by him. This motion was heard before the district court of Barber county on the 24th of October, 1893, upon oral and written testimony. Pierce offered, upon the hearing of the motion, to pay

the fine of $25 and all the costs of the proceedings against him, amounting to $46.50. The court took the motion under advisement, and on the 9th of November, 1893, overruled the same, "upon the ground that the court had no jurisdiction to make such discharge." Pierce excepted. On January 2, 1894, he filed in this court his appeal, containing all of the testimony, oral and written, introduced upon the hearing of that motion. He filed his application in this court on October 3, 1893, for a writ of habeas corpus, asking to be discharged from imprisonment, and alleging that he is ready and willing to pay his fine of $25 and the costs of the proceeding against him, amounting to $46.50, but that it is not within his power to comply further with the order of the district judge to perform the matters recited therein, and "that he is wholly unable to make restoration to Barber county of $1,738.68, and is unable to restore the scrip or order referred to." These cases were heard before this court at its January session for 1894, and on April 5th, of that term.

Chester I. Long and E. Sample, for plaintiff in error. John T. Little, Atty. Gen., and Leon E. Beals, for defendants in error.

HORTON, C. J. (after stating the facts). After an order had been entered by the district judge of Barber county against Daniel L. Pierce, finding him guilty of contempt, and sentencing him to pay a fine of $25 and make restoration of certain county scrip, Pierce filed his motion to set the injunction aside for alleged irregularities of the order. These alleged irregularities were not embraced in the appeal disposed of in State v. Pierce, 51 Kan. 241, 246, 32 Pac. 924, and 33 Pac. 368. Subsequently, he appeared before the court below, asking to be discharged from imprisonment, and to purge himself of contempt. He offered to pay the fine of $25 imposed, together with all the costs of the pro-ceedings against him, amounting to $46.50. He also showed his insolvency, and his inability to make restoration of the county scrip. If the court below had made a finding that the evidence introduced was not satisfactory concerning his insolvency or his inability to do the act commanded, a very different question would be presented than the one we now have for consideration. The court, however, placed its refusal of the application of the defendant "upon the ground that it had no jurisdiction to discharge him." Upon the testimony presented, unless the defendant is permitted to purge himself of contempt, the alternative is perpetual imprisonment. This, of course, cannot be favored. The order of the district judge of the 12th of July, 1892, had a twofold operation,-it was in the nature of a remedy to compel the performance of a duty, as also a penalty for the wrong done. It was intended for the benefit of Barber county and for the vindication of the

district judge for the violation of his order. It appears that the defendant, in signing the scrip, acted upon the advice of R. A. Cameron and A. J. Jones, two reputable lawyers, whom he consulted. One of them was the late county attorney. This advice was no justification, but may be considered in the application to purge the contempt. It also appears that the defendant is now out of office, that he is insolvent, and unable to make restoration. Since the order was entered punishing him for contempt, he has been tried and convicted upon the criminal charge of unlawfully issuing the county warrant. He has appeared before the court below and given a full statement under oath of his property, and of his inability to do anything further to comply with the order of the court. He has attempted, as far as ho could do so, to disavow the contempt, and, drawing the reasonable inferences from the testimony, we do not think that there is any legal justification for his further imprisonment. In re Hilles, 13 Phila. 340; Ex parte Thurmond, 1 Bailey, 605; O'Callaghan v. O'Callaghan, 69 Ill. 552. The judgment in these cases will not prevent the board of commissioners of Barber county from recovering from the defendant in a civil action any damages they may be entitled to on account of his malfeasance or misfeasance while in office. The defendant will be discharged upon the payment to the sheriff of Barber county. of $25, his fine, and the costs of $46.50, all of which were tendered by him. All the justices concurring.

DICT-BURGLARY-LARCENY.

1. In the trial of a criminal case, where the testimony of the state as to the guilt of the defendant was clear and convincing, and no testimony whatever was offered on behalf of the defendant, and where his counsel even declined to argue the case to the jury, and where from the whole record it appears clear that any fair, honest jury must have returned a verdict of guilty, upon an appeal such verdict should not be disturbed, upon objections to the qualifications of jurors, unless error is clearly shown.

2. Some of the jurors had impressions or beliefs as to the commission of the offense charged which were not of a positive and fixed character, but were derived solely from rumor and newspaper statements, and they appeared to have been free from any bias or prejudice, and to be able to fairly consider the testimony, and Held, render an impartial verdict in the case. that the overruling of the challenge to the retention of such jurors is not sufficient ground for reversal.

3. Where an information charges burglary in the first degree, a verdict finding the defendant guilty as charged, without specifying the degree of burglary of which they found the defendant guilty, is fatally defective, and no judgment can be legally entered thereon.

4. Where the information also charges larceny in a dwelling house, of which there are no degrees, a verdict that he was guilty as charged

is valid, and a separate judgment entered thereon may be sustained.

(Syllabus by the Court.)

Appeal from district court, Lyon county; W. A. Randolph, Judge.

A. B. Treadwell, convicted of burglary and larceny, appeals. Conviction for larceny affirmed. Conviction for burglary reversed.

J. Jay Buck, for appellant. John T. Little, Atty. Gen., and W. C. Simpson, for appellee.

JOHNSTON, J. The defendant was prosecuted upon an information which charged that on March 3, 1894, he feloniously and burglariously broke and entered the dwelling house of C. Hood in the nighttime, with the intent to commit a larceny, and he did steal and carry away a gold watch, of the value of $150, which was the property of C. Hood. He was found guilty of both burglary and larceny, and the judgment of the court was that for the crime of larceny the penalty should be imprisonment in the penitentiary for the period of 3 years, and for the crime of burglary he should be imprisoned in the penitentiary for a term of 20 years. One of the grounds for appeal is the action of the court in overruling challenges for cause made against several of those who were called as jurors. The testimony of the state as to the guilt of the defendant was clear and convincing, and there was no testimony offered on behalf of the defendant. His counsel declined to argue the case to the jury, and from the whole record it is clear that from any fair, honest jury a verdict of guilty was inevitable. Under such circumstances, the verdict should not be disturbed, upon objections to the qualifications of jurors, unless error is clearly shown. While the defendant made no defense, he was entitled to an impartial jury, constituted as the law requires. But we cannot say that any of the jurors retained were disqualified to fairly try and decide the case. As in the case of State v. Treadwell (just decided) 38 Pac. 799, some of them had impressions or beliefs that a burglary and larceny had been committed, but they were derived solely from rumor and newspaper statements, and were not of such a fixed and positive character as to disqualify. The jurors appeared to be free from bias or prejudice, and no reason was shown why they could not fairly consider the testimony and render an impartial verdict in the

case.

A more serious objection is urged against the verdict. The information contained a single count, which charged burglary in the first degree and larceny in a dwelling house. The verdict returned by the jury was fatally defective in failing to specify the degree of burglary of which they found the defendant guilty. He was charged with burglary in the first degree, under section 61 of the crimes act, and the jury might, under that charge, have found him guilty of burglary

in the second degree, under section 63 and section 65 of the same act. Cr. Code, §§ 121, 122; State v. Behee, 17 Kan. 402. The sufficiency of the verdict was duly challenged by motion of the defendant, but the court erroneously overruled the motion, and entered judgment upon the defective verdict. It is well settled in this state that a verdict in such a case, although not absolutely void, is so defective that no sentence can be legally entered thereon. State v. Reddick, 7 Kan. 143; State v. Huber, 8 Kan. 447; State v. Jennings, 24 Kan. 642; In re Black, 52 Kan. 64, 34 Pac. 14. This ruling will not disturb the judgment as to the larceny. It was competent to charge both offenses in the same count, and in such a case the defendant may be found guilty of either or both offenses. State v. Brandon, 7 Kan. 106. He was charged with larceny in a dwelling house, and as any larceny in a dwelling house is a felony, without regard to the value of the property stolen, and as there are no degrees of such a larceny, the verdict that he was guilty of larceny, as charged in the information, may be sustained. The burglary and larceny are separate and distinct offenses, and, as a separate penalty was adjudged for the larceny, that judgment may stand. It follows that the judgment convicting the defendant of burglary must be reversed, and the one convicting him of larceny must be affirmed. All the justices concurring.

(54 Kan. 579)

ELERICK v. REID. (Supreme Court of Kansas. Jan. 5, 1895.) ACTION FOR DECEIT-SALE OF GOODS-MISREPRESENTATIONS OF FACT-EVIDENCE.

1. An action for damages on the ground of fraud cannot ordinarily be based on representations of value, or of the price paid for the property by the seller, where there is no relation of confidence between the parties, and the property is subject to full inspection by the purchaser.

2. Where a stock of merchandise kept for sale in a retail store was marked with price marks, both in letters and in figures, and where the price indicated by the letters was known only to the seller, representations as to what the private marks indicated are not representations as to value nor expressions of opinion.

3. Where the owner of a stock of merchandise by fraudulent acts, conduct, and represen tations caused a purchaser to understand and believe that the private letter marks on the goods in his stock represented the wholesale cost price and carriage of the goods, and induced him thereby to enter into a written contract for the purchase of the stock of merchandise at such private mark, and where it was shown that such private mark represented the vendor's retail selling price, which was very greatly in excess of the original cost and carriage, hild, that representations as to what such private mark represented are representations of fact, for which, if false and fraudulently made, the buyer may obtain relief, and that under the facts in this case a verdict in favor of the buyer for moneys advanced on the faith of the contract should be sustained.

4. In such an action, testimony showing the general custom of retail merchants with reference to marking their goods with private marks and in figures is competent.

5. For the purpose of showing a fraudulent purpose of the seller, the testimony of a

witness, who was negotiating for the purchase

from the defendant of the same stock of goods at about the same time that the contract between the parties to this case was made, as to the statements, conduct, and representations of the defendant with reference to said stock of goods, said private mark, and his declarations and offers with reference to a sale thereof, are competent evidence in this case.

(Syllabus by the Court.)

dicated the original cost of the goods and carriage. The jury found in favor of the plaintiff, that he was induced to enter into the contract by fraud.

The principal contention in this court on behalf of the plaintiff in error is that all the statements and representations charged to have been made by Elerick were mere expressions of opinion as to value, which any seller has a perfect right to make; that such

Action by Dent Reid against C. F. Elerick to recover $3,000, which defendant obtained by fraud. From a judgment for plaintiff, defendant brings error. Affirmed.

Fuller & Randolph and Morris Cliggitt, for plaintiff in error. W. R. Biddle, for defendant in error.

ALLEN, J. This action was brought by Dent Reid against C. F. Elerick to recover $3,000 and interest, which it is claimed was obtained by the defendant from the plaintiff by fraud. Elerick was a merchant at McCune, Kan., owning a miscellaneous stock of merchandise. Reid had been a farmer in Illinois. He came to Kansas for the purpose of becoming a merchant. He wished to trade a farm, belonging to his father-inlaw, in Hardin county, Ill., for a stock of goods. At Kansas City he learned through a real-estate agent of Elerick's stock, and went down to see it. He arrived there on the morning of the 19th of February, 1889, and on the morning of the 20th of February a written contract was signed by the parties, by which it was agreed that Reid should buy Elerick's stock of goods, to be invoiced at Elerick's private letter mark, the key to which was copied in the contract, and in payment therefor was to furnish a deed to the Illinois farm, which was to be accepted as a payment of $9,000 on the goods, and was to deposit on that day, in the bank of J. L. Ward, $3,000, to the credit of Reid. The deposit was so made. The parties were to commence invoicing the goods on the 4th of March following. It was agreed that whatever difference there might be between $12,000, the amount of the farm and money deposited, and the invoice of the goods, should be paid in cash to the party entitled to it. When the parties proceeded to make the invoice it was discovered that Elerick's private letter mark indicated a price far in excess of original cost and carriage of the goods, and the sum total of the invoice as made by Elerick was $25,123.61. The plaintiff contends that he bought the goods for cost and carriage, and that Elerick represented to him that the private letter mark represented cost and carriage of the goods. The defendant contends that the goods were to be invoiced at the private letter mark, that a key to that letter mark is contained in the contract, and denies that he ever in any manner represented to the plaintiff that the letter mark in

become the basis of an action for fraud. While there is much diversity in the cases as to what is the limit to which a seller may lawfully go in his representations as to the quality and value of his goods, we do not think this case rests on mere expressions of opinion. It is urged also that statements as to the price paid by the seller for the article sold are immaterial, and that the buyer has no right to rely on such statements. This may be true in a general sense, for the matter which concerns both buyer and seller is merely what is the present value of the article sold. Ordinarily, where the goods are open to the inspection of the buyer, he is presumed to be as competent to judge of their value as the seller. "Venditor vendit quam maximo potest emptor emit quam minimo potest," is the maxim of the law stating the usual and permissible course of dealing where there is no fraud or relation of trust or confidence. On the one hand, it is held to be permissible for the seller to puff and extol the commodity, and, on the other, for the buyer to disparage and detract. However wrong in morals it may be for either party to express anything other than an honest opinion, the courts deem it the wiser and better rule to require each party to a trade to rely on his own judgment, rather than to be permitted, after having made a bad bargain, to come into court on the claim that he relied on the judgment and opinion expressed by the adverse party. In this case the stock of merchandise was not sold for an aggregate: sum agreed on by the parties. The value of the stock of goods as a whole was to be determined by a private mark used by the defendant. The plaintiff had no knowledge as to what the letters used in making that. private mark represented until they were inserted in the written contract. The defendant himself, on the witness stand, testified that Reid did not ask what the private letter mark was, and that he did not tell him, and that the private letter mark in fact represented the selling price of the goods. It appears also from the defendant's own testimony that the goods were also marked in figures at a higher price, and he states that this was done for the purpose of aiding him in selling the goods. The substance, then, of the defendant's claim is that he sold these goods to the plaintiff at prices concerning which the plaintiff had no knowledge in fact whatever at the time he signed this contract; that he neither knew the price of any one.

article nor the price of the stock as a whole, but that that price was to be determined by cabalistic marks on the goods, with which the defendant was familiar though the plaintiff knew nothing. It must be apparent that his statements as to what these letters represented are not statements of value in any sense, but are statements of fact. Neither is a statement as to what the gross valuation of the stock of goods, computed according to the private letter mark, would be, the mere expression of an opinion as to the value of the goods. That sum would depend on quantity and price. The question here is whether there was fraud and deceit through which the plaintiff was entrapped into signing a contract to buy at a scale of prices, greatly in excess of the scale of prices he in fact assented to. The jury, both by their general and special verdicts, have found that the plaintiff was so deceived; that the defendant, by his acts and conduct, fraudulently induced the plaintiff to believe that the private letter mark indicated cost and carriage, when in fact it indicated a price greatly in excess. That this was a fraud is clear. Retail merchants in the country buy goods in the cities of wholesalers. The profit of the retail merchant is the difference between the cost at wholesale, with carriage added, and the retail price. Elerick admits that the private letter mark was his selling price, and also admits that the selling price marked on certain articles was from 50 to 100 per cent. more than the original cost. Other witnesses testified that the selling price of certain other articles represented a still greater advance on the cost price. The main issue in the case was as to whether the plaintiff was purposely deceived by the defendant as to the private mark, and the jury resolved the question in favor of the plaintiff. We think this is a finding of such a fraud as is recognized by the law to be a fraud. Lord v. French, 61 Me. 420; Cofer v. Moore (Ala.) 6 South. 306; Simar v. Canaday, 53 N. Y. 298; Griffin v. Farrier (Minn.) 21 N. W. 553; Handy v. Waldron (R. I.) 29 Atl. 143; Speed v. Hollingsworth, 54 Kan., 38 Pac. 496.

Having determined that the fraud charged is actionable, and there being ample proof to support the verdict, the other questions discussed in the briefs appear of minor importance. At the time the invoice was being taken, Mr. Hayes, a hardware dealer, was called in by the plaintiff to assist him in determining the cost price of some of the goods. The plaintiff, over the objection of the defendant, was permitted to state, "I think the sprinklers, according to Hayes' mark, was $1.00; according to the private cost mark $2.25." is objected, and with reason, that this is not a proper mode of proving value; but the defendant, on cross-examination, testified with reference to this same matter: "When we went to invoicing, I told Mr. Hayes to put down what he thought was the actual cost of the goods." It appearing that Hayes was

It

acting in the matter for both the parties in placing a valuation on the goods, there was no error in admitting proof as to what he did in the presence of the parties in accordance with their request. C. A. Giles and H. P. Grund, both merchants, were examined with reference to the custom of merchants in marking goods with private marks and figures. Grund testified that he thought he could see an object in marking goods in the way they were marked by Elerick, but was not asked to explain what the object would be. He further stated that he did not think it would subserve any purpose in the ordinary way of transacting retail business. We perceive no error in the admission of this testimony. The custom of merchants with reference to the use of private marks on their goods was a proper subject of inquiry. The statement of T. H. Riddle, with reference to the valuation placed on the stock of merchandise by Elerick in a letter, which was not shown to have been lost or destroyed, was improperly admitted; but, in the view we take of this case, the statement was quite unimportant. Riddle's statement was that the valuation placed by Elerick on the stock was about $12,000. As Riddle was acting for Elerick in finding a buyer for the goods, and especially in view of the fact that all of the testimony in the case seems to indicate that the stock was regarded by every one who knew anything about it as about a $12,000 stock, and as Elerick nowhere swears that it was worth more than that sum, we think the error in admitting the testimony unimportant. C. M. Walker, a witness for the plaintiff, testified concerning negotiations between himself and Elerick with reference to the sale of the same stock of goods to him. He stated that Elerick gave him the key to his private mark; that he examined the goods and the marks on them; that Elerick stated to him that the private mark represented the actual cost of his goods with freight added; that, after examining the goods, he called Mr. Elerick's attention to the fact that the goods were marked at more than wholesale cost; that he found some of them, in his judgment, marked five or six hundred per cent. above cost and carriage. The witness was permitted to go into the details of his negotiation with the defendant. His testimony was important, and doubtless had its weight with the jury. Was it admissible in a case of this kind? The transaction was almost contemporaneous with that of Reid. Walker's first interview with the defendant was in the forepart of February, 1889, and he was there again on the 20th and 21st of February, just after Reid left. We think the evidence of this witness was proper for the purpose of showing fraud. In actions of this kind the range of inquiry must necessarily be wide. The efforts of Elerick to sell to Walker at his private letter mark, and his statements to him as to what that letter mark represented, bore directly on