ment of the debt, except this land. He denied liability on the note, and threatened that if Cox did not compromise and accept a certain proposition which he made he would never pay him anything; and there are circumstances connected with the transfer of the land to his sister which tend to impeach his good faith. It is argued that there is no evidence directly connecting Martha A. Cox with any fraud in the transfer. It is true, as contended, that honesty and fair dealing are presumed, and that one charging fraud must prove the same; but direct proof of a dishonest transfer of property can seldom be procured. "A fraudulent purpose is known only to the parties to the transaction, and they do not hasten to tell it. As a rule, fraud, therefore, only is disclosed by the condition of the parties, the details of the transaction, and the surrounding circumstances." Kurtz v. Miller, 26 Kan. 314; Gollober v. Martin, 33 Kan. 252, 6 Pac. Rep. 267. In this case, the plaintiff below depended largely upon the testimony of E. B. Cox, the husband of Martha A. Cox. He acted for his wife in the transaction, and she is bound by his knowledge and conduct concerning the same. He says his wife purchased the land from her brother for $1,000, paying $500 in cash, agreeing to pay two other smaller amounts, but a large part of the balance was to be credited on the board and washing of Kennedy. His attempt to show his wife's ability to purchase, and the source from which she derived the $500, was not a success. He stated that she had a few head of young cattle; but when it was run down, he only accounted for $45 derived by her from that source, out of which she had paid for a sewing-machine. He then undertook to account for the amount by stating that it was largely furnished by himself, some of which he derived from the sale of cattle, and some he borrowed. A considerable part was borrowed before the purchase of the land and when it was not anticipated. When asked his purpose in borrowing it, he said it was to use, but could not state to what use he intended to put it. Subsequently, he stated that the money was Dorrowed with the intention of building a house at some future but indefinite ime. According to his statements, he was borrowing money when he had a considerable sum on hand and not in use. Kennedy lived with him, and together they went to Kingman the day before the sale to obtain the final receipt given by the United States land department, and although Cox claimed to have about $500 on hand, Kennedy was compelled to borrow the money from a neighbor with which to pay the government charges in obtaining the final receipt. On the morning when the alleged sale was made, E. B. Cox and his wife formally executed and delivered a note to Kennedy for $500, although they claimed to have the amount on hand at the time, and in the evening of the same day, when Kennedy delivered the deed, they say the sum was paid and the note taken up and canceled. William M. Cox was endeavoring to enforce the collection of his debt by attachment proceeding, and Martha A. Cox stated in substance to a witness that her brother was being wronged by William M. Cox; that the amount that he had given in payment for the improvements on the land was too much; and that her brother ought to keep the land, and she would fight for him. It is true, E. B. Cox testified that the transaction was honest, and that the purchase price was actually paid, but the court evidently did not believe him; and there are facts and circumstances in the case-only a part of which have been mentioned-which tend to show that there was neither good faith nor consideration to support the alleged transfer. In that view o' the case, it is our duty to affirm the finding and judgment of the court, which will be done.

All the justices concurring.

(39 Kan. 193)

GODFREY v. BLACK.

(Supreme Court of Kansas. April 7, 1888.)

1. LANDLORD AND TENANT-LEASE-SUBLETTING

INJUNCTION TO PREVENT.

Where a building is designed and constructed for use as an hotel, and the owner leases it to another for such purpose, and stipulates that the lessee shall not lease or underlet the premises unless the written consent of the owner is first obtained; and where the lessee, during the term, and without the consent of the lessor, sublets a portion of the hotel office to be used for carrying on a real-estate and brokerage business, which business detracts from the reputation and popularity of the house, and impairs its value as an hotel,-equity will interfere, on the application of the lessor, to prevent by injunction the lessee or sublessee from continuing such unauthorized use of the premises.

2. SAME.

Although the lessor may have the right to re-enter, he is not confined to this remedy. He may insist that the covenants of the lease shall be observed; and the action for the recovery of possession is not so ample as to preclude him from obtaining equitable relief to prevent a forbidden use of the premises.

3. SAME.

Neither is the right of the lessor to bring an action to recover compensatory damages for the trespass of the sublessee a sufficient ground for withholding the remedy of injunction.

(Syllabus.by the Court.)

Error to district court, Sedgwick county; C. REED, Judge.

Action of injunction, commenced by Robert Black against F. S. Roberts and M. O. Roberts, partners as Roberts Bros., and C. E. Godfrey, to restrain Roberts Bros. from subletting any portion of the Manhattan Hotel, situated in the city of Wichita, and to restrain C. E. Godfrey from occupying the hotel office as a real-estate and brokerage office. In his petition, Black stated, in substance, that he was the owner of the premises, and had constructed the building thereon to be used as a first-class hotel, and that he let the same to the Roberts Bros., to be used as an hotel, from the 1st day of July, 1885, to the 1st day of July, 1886, for a stipulated rent, payable in monthly installments. It was further provided in the lease, which was in writing, that Roberts Bros. might elect to take the premises for the further period of four years after July 1, 1886, upon the same terms, by giving to Black a written notice of such election at any time prior to the 1st day of May, 1886. In pursuance of that stipulation, Roberts Bros., within the time, elected to retain the lease for the additional four years, and gave written notice to that effect to the plaintiff. It was further provided in the lease that Roberts Bros. might carry on any business in the building incident to the hotel business; but it was expressly stipulated that they should not lease nor underlet, nor permit any persons to occupy the premises, without the consent of the plaintiff in writing having been first obtained. He alleges that he has never given Roberts Bros. any consent to occupy the building for any purpose other than that of an hotel, nor to lease or underlet the building or any part thereof, nor to permit any persons to occupy the same except as guests of the hotel. He alleges that the premises were to be occupied only as an hotel, and that it is injurious to the hotel to carry on, in the office thereof, the business of a real-estate agency and brokerage, and that it is such an injury as cannot be compensated in damages. Notwithstanding the premises, he avers that Roberts Bros. have leased to C. E. Godfrey a portion of the hotel building used as the hotel office; and that Godfrey, his agents and employes, are occupying the same as a real-estate office and place of business. He further states that Roberts Bros. are threatening and intending to continue said lease and underletting to Godfrey, and that Godfrey intends to occupy the room in the transaction of the real-estate business, against the protest and without Black's consent, and to his irreparable injury. He asks that injunction issue prohibiting Roberts Bros. from leasing or underletting the hotel building and premises, or any part thereof, v.17p.no.9-54

to Godfrey for a real-estate office, and restraining Godfrey and his agents and employes from occupying the office of the hotel, or any part thereof, as a realestate office. The petition was verified and introduced in evidence in support of the application for a temporary injunction. In addition, the affidavits of several persons were offered, tending to show that the carrying on of a real-estate business in the office of a first-class hotel brings a crowd and an excitement which interferes with the convenience and comfort of guests, and tends to drive them away, and to render the hotel unpopular. C. E. Godfrey testified that he had leased from Roberts Bros. a space 8 by 20 feet, in the corner of the hotel office, and put a railing around and furnished the same, and was carrying on a real-estate business therein. Upon a hearing had upon due notice, a temporary injunction was granted against Godfrey during the pendency of the action, enjoining him, and his agents and employes, from further using any portion of the office of the hotel as a real-estate office. To reverse the order granting the temporary injunction, C. E. Godfrey brings the case to this court.

Sankey & Campbell, for plaintiff in error. Campbell & Dyer, for defendant in error.

JOHNSTON, J., (after stating the facts as above.) We see no reason to disturb the order granting the temporary injunction. The building in question was constructed for use as a first-class hotel, was rented for that purpose, and it was expressly specified in the lease that the lessee should not sublet the premises, or permit any one else to occupy the same, without the consent in writing of the lessor having first been obtained. In direct violation of the terms of the lease, Roberts Bros. sublet a portion of the hotel office, to be used by Godfrey in carrying on a business inconsistent with the hotel business, and which, the testimony says, detracts from the reputation and popularity of the house. They had no right to sublet or permit the hotel to be used by Godfrey, and he acquired no right by the agreement made with them.

It is claimed that injunction is not the proper remedy in such case; and actions to recover possession and to recover damages for trespass, where the defendants could have the issues submitted to a jury, are suggested. The lessor is not confined to these remedies, nor are they adequate. He has a right to insist that the covenants of the lease shall be observed, and that the premises shall be used only for the purposes agreed upon. It does not appear that the lease was to terminate upon a breach of the covenants; but, even if the lessor had a right to re-enter, that would not preclude him from obtaining equitable relief to prevent a forbidden use of the premises. Presumably, the continuance of the lease for the full term is beneficial to the lessor, and he is entitled to a performance in accordance with the contract made. Upon this ground the mere re-entry is held to be an inadequate remedy, as it does not leave the lessor in as good a position as the enforcement of performance by the tenant would leave him in. Bodwell v. Crawford, 26 Kan. 292, is cited as an authority against maintaining the action. The two cases are very dissimilar. There no contractual relation existed between the parties, and the possession of the premises by the defendant was wholly unauthorized. In · giving the opinion in that case, the writer carefully distinguished it from those like the present one; holding that injunction to restrain parties from putting leased property to a use not authorized by the lease could be maintained. In speaking of a re-entry by the landlord, it was there remarked: "True, he may perhaps declare the lease forfeited, and recover the property; but he may not desire to do this. He may not be able to lease for the same rent, or to an equally responsible tenant; and the lessee ought not to be permitted to compel the lessor either to take back the property or tolerate a forbidden use." Stees v. Kranz 32 Minn. 313, 20 N. W. Rep. 241; 2 High, Inj. 88 1188, 1144.

Neither is the right of the lessor to bring an action to recover compensatory damages for the trespass a sufficient ground for withholding the remedy of injunction. Equitable relief may be properly extended in some cases against trespass. An action at law against the trespasser here would not be an adequate remedy. A new cause of action would arise every day for the constantly recurring grievance, which would lead to a multiplicity of suits; and the necessity of preventing these is an exception which warrants the exercise of the equitable jurisdiction of the court. Besides, the lessor has a right to insist upon his property being used in the manner fixed by agreement in the lease; and the testimony tends to show that the carrying on of the real-estate business in the office of the hotel will deteriorate its value, and seriously injure the hotel; and in such cases equity will interfere to restrain the continuance of the injury. 2 High, Inj. § 1142; Steward v. Winters, 4 Sandf. Ch. 587; Macher v. Hospital, 1 Ves. & B. 188; Stees v. Kranz, 32 Minn. 313, 20 N. W. Rep. 241.

Under the pleadings and the proofs, the temporary injunction was properly allowed, and the order granting the same will be affirmed. All the justices concurring.

(Supreme Court of Kansas. April 7, 1888.)

1. APPEAL-REVIEW-Weight and SufFICIENCY OF EVIDENCE.

Where a question is submitted to a jury, and there is some competent evidence submitted to support the findings and verdict thereon, held, such findings and verdict, when approved by the trial court, are conclusive.

2. NEGOTIABLE INSTRUMENTS-ACTION ON-DEFENSES-NOTICE OF EQUITIES BY HOLDER. Where H. and L. are partners, and for the purpose of protecting the partnership property from being attached by the creditors of L., a contract is made between them that H. shall conduct the business in his own name, and account to L. for onehalf of the proceeds thereof, and H., to secure L. in such arrangement, executes to L. his promissory note, and L. indorses said note as collateral security to G., and afterwards H. and L. make a settlement of their partnership, by the terms of which settlement L. is to turn over said note to H., and G. received the note with full knowledge of all the facts, held, in an action by G. against H., such allegations, if true, are a complete defense to the note.

3. SAME-INSTRUCTION-BURDEN OF PROOF-WAIVER OF ERROR.

Where, in an action on a promissory note claimed to have been transferred by the payee before maturity, without notice of any defense thereto, and the court instructs the jury that the burden is upon the plaintiff to establish such facts, held error; and further held that, where no exceptions are saved to the instructions, the error is waived.

(Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Republic county; E. HUTCHINSON, Judge.

This was an action brought by J. A. Gafford, Jr., against L. B. Hall, defendant in error, on a promissory note executed by Hall to one Leslie, and afterwards transferred by Leslie as collateral security to the plaintiff in error. The defendant admitted the execution of the note sued on, but alleged, as defense thereto, that at the time of the execution of the note, and for a long time thereafter, he and Leslie were partners doing business under the firm name of Hall & Leslie; that Leslie had become involved in a grain speculation, and for the purpose of preventing said partnership from being disturbed, and the defendant from being annoyed by attachment proceedings, an agreement was made by and between defendant and Leslie by the terms of which the business was to be carried on in the name of the defendant, and Leslie was not to be known in the business, but was to retain his interest in the business and share in the profits; that this note was executed as security that defendant would so conduct said business and account for the proceeds; that afterwards said business was wound up, and a satisfactory settlement made by and be

tween said defendant and Leslie, and Leslie was to surrender and deliver up said note; that the note was given without any other or further consideration; that all of said facts were known to said plaintiff long before the pretended transfer of the note from Leslie to plaintiff; and that said note was transferred by Leslie long after the settlement of said partnership business between defendant and Leslie. All of which was denied by the reply of the plaintiff. Trial by jury, and judgment for the defendant. Plaintiff now brings the case here.

W. D. Webb, A. E. Taylor, and T. S. C. Cooper, for plaintiff in error. Lowe & Smith, and Hogin & Dillon, for defendant in error.

CLOGSTON, C., (after stating the facts as above.) The plaintiff now insists that the record presents three substantial errors, either of which is sufficient to and requires a reversal of the judgment: First, that the evidence does not support the special findings of the jury; second, that the court committed error in refusing to render judgment on the pleadings, notwithstanding the verdict of the jury; and, third, that the court erred in the instructions to the jury.

The jury found substantially on all the issues in favor of the defendant, and found, in answer to the questions submitted to them, that the plaintiff did not take this note in question as collateral security for a bona fide indebtedness due from Leslie to him, and that plaintiff did not take the note in good faith, without knowledge, and that there was collusion and fraud between the plaintiff and Leslie at the time plaintiff received the note from Leslie. It is true that there is but little testimony to support these findings. The weight of evidence seems to be against them. But under the rule adopted by this court, that, before the findings of a court or jury will be set aside, it must be shown that there was no evidence to sustain such findings, all that is necessary to sustain the findings is that there be some competent evidence submitted to the jury upon each question found by them. Plaintiff claims that he was in possession of this note for about two years after it became due before he presented it for payment. There was evidence showing that fact. This was a circumstance that was competent to go to the jury. It was a question for them to answer whether or not, under the circumstances, a party holding a note as collateral security would hold the same two years after it became due, without making any demand or presenting the note for payment. The evidence shows that the plaintiff was on several occasions at the store of the defendant, and that he made no mention of the note, and did not ask for payment. He gave as a reason that he was requested by Leslie not to present it. This was a circumstance that the jury might say showed bad faith. Again, there was evidence tending to show that in the preparation of this case for trial, in the taking of depositions, that Leslie appeared at the different times when depositions were taken, prompted the attorneys, furnished information, and seemed to be interested in the result; while the plaintiff, being present only a part of the time, seemed to take no interest in the proceedings. This was substantially all the evidence the record discloses tending to show that there was any collusion between plaintiff and Leslie, or a knowledge on the part of the plaintiff of the circumstances surrounding the giving of this note; evidence upon which a jury, who saw the witnesses, their demeanor and appearance on the witness stand, might find sufficient to answer the questions as they did.

As to the second proposition, the answer, we think, discloses and sets out that which, if true, was a defense to the action. It alleged that this note was given in a transaction between defendant and Leslie. It is true, the note was given under such circumstances as would have rendered the transaction void under the statute of frauds. It was given in a transaction to prevent the collection of claims against Leslie, but afterwards this transaction was annulled,