(dissenting in part) :, I am not yet reconciled to the first decision of this case (96 Kan. 159, 150 Pac. 535), and the court could, in my opinion, still straighten out the matter, as it did do in Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556, when it overthrew its earlier decision in that case, recorded in 86 Kan. 911, 122 Pac. 1027. I do not deny that the present decision logically and necessarily results from an adherence to the judgment and decision in 96 Kan. 159; but, in furtherance of justice, I would wipe out both decisions and lay hold of the matter anew.