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ling soul that you have in you for this wicked corporation up there, how can you look this man in the face?” Defendant objected to the foregoing Statements, and moved the court to exclude them from the consideration of the jury. The Objections and motion were overruled. The plaintiff’s right to recover in this action depended On the COmpany’s negligence and his Want Of contributory negligence. The amount of money which the corporation had and the number of accidents Which had happened in its mine Were matters about which no evidence was given, or could, with propriety, have been given. Counsel, in going OutSide of the record and bringing Such matters to the attention of the jury, could have had • no purpose other than to inflame the minds and excite the passions of the jury. This is not a case of one act of impropriety followed by an admonition of the court to the jury not to consider the Statement. It is a case Where the limits of legitimate argument Were transcended in a number of instances WithOut rebuke Or admonition from the COurt. Such violations of the propriety of debate have been condemned in a number of Cases and reversals ordered. Kentucky Wagon Mfg. Co. v. Duganics, 113 S. W. 128; L. & N. R. R. Co. v. Payne, 138 Ky. 275, 127 S. W. 993, Ann. Cas. 1912A, 1291; I. C. R. R. CO. V. Jolly, 119 Ky. 452, 84 S. W. 330, 27 Ky. Law Rep. 118; McHenry Coal Co. v. Sneddon, 98 Ky. 687, 34 S. W. 228, 17 Ky. Law Rep. 1261; L. & N. R. R. Co. v. Crow, 107 S. W. 807, 32 Ky. Law Rep. 1146; C., N. O. & T. P. Ry. Co. v. Martin, 154 Ky. 349, 157 S.W. 710; Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S. W. 1121; Knights of Maccabees of the World v. Shields, 162 Ky. 392, 172 S. W. 696. In none of these cases Was the language more objectionable than that used by Counsel in the present case. Indeed, if a reVersal were not ordered in this case, it would be difficult to find a case requiring a new trial because of improper argument. [7] But the point is made that the improper argument Of Counsel Was not Sustained by affidavits, as required by the Code. Section 340, subsec. 2, Civil Code, authorizes a new trial for misconduct of the jury, of the prevailing party, or of his attorney, Section 343 provides in part as follows: “The grounds mentioned in section 340, subsections 2, 3 and 7, must be sustained by affidaVits showing their truth; and may be controverted by affidavits.” In Our Opinion, this provision applies in those cases Only Where the misconduct of the counsel does not take place in the presence of the court, or, taking place in his presence, is the Subject of dispute. It does not apply to improper argument taking place in the Court's presence about which there is no dispute and to the happening of Which the court Certifies in the bill of exceptions. In the present case the improper argument is set

forth in the bill of exceptions and certified to by the court. This practice has always been regarded as sufficient. Bannon V. Louisville Trust Co., Adm’r, 150 Ky. 405, 150 S. W. 510; Southern Ry. in Kentucky v. Thacker's Adm'x, 156 Ky. 486, 161 S. W. 236. Judgment reversed, and cause remanded for a new trial consistent With this opinion.

DANIEL et al. v. DANIEL, * (Court of Appeals of Kentucky. Oct. 13, 1915.)



A complaint, alleging that defendant

breached a contract with plaintiff by failing to account for plaintiff's share of money derived from the sale of certain timber in accordance with the contract, is not indefinite because it averred that the names of the purchasers were unknown to the plaintiff, since such names must necessarily be known to defendant, whose duty it is to disclose them.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. 3:66.]

2. PLEADING 6:5193, 367 – GROUNDS OF DEMURRER—INDEFINITENESS—MOTION TO MAKE SPECIFIC. Where a petition states a cause of action, a general demurrer will not lie because of indefiniteness in some respects in the statement of the facts; the remedy being by motion to make the statements of the petition more specific, under Civ. Code Prac. [Ed. Note.—For other cases, see Pleading, Cent. Dig, §§ 64, 425,428-435, 437–443, 1173– 1193; Dec. Dig. (3:5193, 367.]

3. TRIAL Q->139 – PEREMPTORY INSTRUCTION –SUFFICIENCY OF EVIDENCE. It is not error to refuse a peremptory instruction directing a verdict for defendant if there is any evidence to support the plaintiff's cause of action. [Ed. Note.—For other cases, see Trial, Cent. # §§ 332, 333, 338–341, 365; Dec. Dig. G->

4. JOINT ADVENTURES @:25—SALES-ACTIONS ON CONTRACTS-INSTRUCTIONS. In an action for an accounting of profits on the sale of timber which by agreement the parties were to buy and sell, and, after payment of advances to share the profits, it was not error to charge the jury that if they believed from the evidence that there Was an agreement between the parties to buy timber for the purpose of resale, that timber was so bought, and sold by defendants at a profit, that under the contract plaintiff was to have half the profits less the money advanced by defendants for the original purchase, their finding should be for plaintiff for half the profits derived from any timber sold not exceeding the demand in the petition, but that if they believed that no timber so purchased Was resold at a profit they should find for defendants. [Ed. Note.—For other cases, see Joint Adventures, Cent. Dig, § 7; Dec. Dig. 3:5.]

Appeal from Circuit Court, Perry County.

Action by C. B. Daniel against K. F. Daniel and another for breach Of Contract. From a judgment for plaintiff, defendants, appeal. Affirmed.

Wootton & Morgan, of Hazard, for appel

lants. Jno. B. EverSole and W. C. EverSole, both of Hazard, for appellee.

Q->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SETTLE, J. The appellee, C. B. Daniel, by petition filed in the Perry circuit court, sued to recover of the appellants, K. F. Daniel and Elizabeth Daniel, $2,179.50 claimed as his half of alleged profits realized On a timber contract, it being alleged in the petition that in August, 1910, he made with them the contract in question, whereby he undertook to forthwith purchase for them certain standing timber on Willard and Forked Mouth Creeks, in Perry county, appellants agreeing to furnish the money to pay for the timber, and that they would sell the timber and, after repaying themselves the money they had furnished appellee to purchase it and deducting the cost attending its sale, give and pay appellee one-half the profits realized therefor; that pursuant to Such contract appellee purchased for appellants, with the money advanced by them for that purpose, 5,386 trees in the months of August, September, October, November, and December, 1910, at a cost of $2,647, which timber appellants at once contracted to the Hamilton Realty Company at the price of $7,034, by which sale, if appellants had permitted it to stand, they would have realized, after deducting the money they had adVanced to pay for the timber and the cost of taking it up, a profit of $4,359, one-half of which, $2,179.50, appellee was entitled to and Would have received; but that a controversy then arose between him and appellants over a division of the profits, his half of which they refused to pay, and, in Order to avoid payment of which, appellants by a fraudulent collusion with the Hamilton Realty Company induced the latter to rescind the contract of sale appellants had made with it. It was further alleged in the petition that, shortly after their rescission of the contract with the Hamilton Realty Company, appellants sold the timber in question for as great a profit as would have been made Out Of the Sale to that COmpany, tO Other persons to appellee unknown. The prayer of the petition asked, in substance, that appellants be made to account to appellee for his half of the profits realized from such sales, and that he be given judgment against them therefor to the amount Of $2,179.50. Appellants, by answer, traversed the averments of the petition, but by a subsequent paragraph admitted that they had employed appellee to purchase for them a part of the timber in controversy, and alleged that for such services as he rendered under this employment they had agreed to pay, and had paid, him at the rate of $1 per day. The affirmative matter of the answer Was controverted of record, and upon the issues thus formed the case went to trial, resulting in a verdict in favor of appellee for $600 damages. From the judgment entered upon that verdict, this appeal is prosecuted.

[1, 2] Appellants insist that the trial court erred in overruling their general demurrer to the petition, it being their contention that

the averments of the petition are not sufficiently Specific to authorize a recovery. The Contention is unsound. Considered as a whole, the petition, in meaning and effect rests appellee's right of recovery upon the grounds: First. That he is entitled to judgment against appellants for one-half the profits that Would have been realized from the alleged Sale by them Of all the timber to the Hamilton Realty Company, but for their fraud in inducing that company to rescind Such Sale in Order to enable appellants to avoid the payment to appellee of his half of the profits, which constituted a violation of their contract with appellee and made them liable to him for damages equaling in amount half the profits of the sale to the Hamilton Realty Company. Second. That, if the court . Should find this ground of recovery untenable, the Subsequent sales made of the timber by appellants to other parties at a profit, in any event, entitled appellee to his half of such profits. It is true the allegations of the petition as to the subsequent sales are indefinite, both as to the number and amounts, respectively, of Such sales. The averment, however, that the names of the purchasers are unknown to appellee, threw upOn appellants, as the names must necessarily be known to them, the duty of disclosing them; but as the petition was indefinite in failing to State that the number and amounts, respectively, of the subsequent Sales Were unknown to appellee, appellants Should have entered a motion requiring the petition to be made more Specific in the particulars mentioned. This they failed to do, hence they cannot complain that their demurrer to the petition was overruled. A general demurrer will lie when the petition fails to State a cause of action but Will not lie where there is indefiniteneSS in SOme respects in the statement of the facts constituting the cause of action. In such case the remedy is a motion to make the Statements of the petition more Specific. Civil Code, § 134. [3] It is a further contention of appellantS that the trial court erred in refusing the peremptory instruction asked by them at the conclusion of the evidence. The refusal of a peremptory instruction directing a Verdict for the defendant is not error, if there is any evidence to support the plaintiff's cause of action; hence in passing upon this contention consideration of the evidence will be necessary. In other words, it must be determined from the evidence: First, Whether appellee made with appellants the contract alleged in the petition; second, whether profits were realized from sales of timber by the latter. While there is a contrariety of proof as to this question, we think the weight of the evidence is to the effect that the COntract WaS substantially made as claimed by appellee. Appellee is a son of appellants, and it appears from the evidence that the appellant

K. F. Daniel, who has had 30 years' experience in handling timber, was conducting his operations in that line in the name of his Wife and coappellant, Elizabeth Daniel. Although the money used in the busineSS Was furnished by him, sales of timber and deeds therefor Were in eVery instance made to the Wife. Appellee testified not only that the Contract, as alleged in the petition, was made between himself and the appellants, but, in addition, that he purchased a large quantity of standing timber from one Tom Moore, by Whom it had previously been purchased under a number of contracts taken in the name of D. Y. Coombs, appellants furnishing the money With Which to pay for Same; that from the Sale Of the timber thus purchased appellants were to retain from the proceeds the money which they had furnished to pay for the timber and the cost attending its sale, and the profits were to be divided equally between them and appellee. The evidence in behalf of appellee cannot be Said to Sustain the allegations of the petition as to the Sale made by appellants of the timber to the Hamilton Realty Company, but does ShOW the making by the latter Of Other Sales of the timber, the prices realized therefor, and the profits to be divided between the parties. The appellant K. F. Daniel in testifying contradicted appellee as to the character and terms Of the contract, but admitted enough to ShoW that he had employed him to purchase some of the timber in question and agreed to pay him for his Services one-half the profitS realized thereOn. Indeed, a letter written by him to appellee, which appears in the record, Contains these statements: “When I told you you could have a interest in this timber, I didn’t mean that you should have a interest in all the timber that I could buy. I meant to give you a share of the timber which was taken up and branded With the letter K, after Betsy Daniel got all of her purchase money back.” The above statements corroborate the appellee that there Was a contract betWeen him and appellants, Whereby they Were to buy Some timber, sell it, and divide the profits, after repaying to the appellants the amount furnished in the purchase of the timber. It is patent, however, from the evidence, that, when the timber was sold, profits were larger than Was anticipated by the parties to the contract, Which, according to the testimony of appellee, so excited the avarice of the appellant K. F. Daniel, as to lead to his refusing a division with appellee of the profits at all. The evidence introduced by appellee, While not Sufficient to Sustain the averments of the petition as to the entire amount of profits claimed to have been realized for the timber purchased by him and sold by appellants under the contract, does fairly establish the following facts: That 449 trees purchased by appellee under the contract from

the Stacy land, 356 trees from the Baker land, and a considerable number from the Caldwell land, costing in the aggregate $642.50, were sold by the appellants for $1,991, which, after repaying to appellants the money they had furnished in the purchase of the timber, left a net profit of $1,348.50, to onehalf of which, $674.25, appellee was entitled under his contract with appellants; but the verdict of the jury only allowed him $600 Of this Sum. It further appears from the evidence that timber other than that last above mentioned, which had been purchased by appellee under the contract, was also sold by appellants for a profit, none of which they were made to account for by the jury; but, as appellee has not taken a cross-appeal from the judgment, we are not concerned with the loss of profits he sustained upon the Sale Of that timber. From Our consideration of the evidence We are unable to say that the verdict of the jury did the appellants any injustice. [4] Appellants’ complaint of the instructions cannot be sustained. But two instructions were given, both of which are Substantially free of error. They in substance advised the jury that, if they believed from the evidence that appellee and appellantS entered into an agreement With each Other to buy timber for the purpose of a resale, and did buy timber for that purpose in Perry County, Ky., the deeds to Which Were made to the appellant Elizabeth Daniel, that Such timber Or a portion thereof Was afterWardS SOld by appellantS at a profit, and that under the agreement between the parties they were, after repaying the latter the money they advanced to purchase the timber, to divide the profits equally, that is, one-half to appellee and One-half to appellants, their finding Should be for the appellee, in a Sum equal to one-half of the profits derived from the resale of the timber, or any part thereOf, not to exceed the amount claimed in the petition; but, upon the Other hand, if they believed from the evidence that no timber purchased under the contract Was resold at a profit, then the finding Should be for the appellants. The record discloses no prejudicial error in the admission or rejection of evidence. Judgment affirmed.

PHONE CO. et al. V. HATCH-
ER. et al.

(Court of Appeals of Kentucky. Oct. 13, 1915.)


Under Const. § 164, providing that franchises may be granted by municipalities only after due advertisement and to the highest and best bidder, and Ky. St. § 3636, providing that no franchise shall be granted by an ordinance passed on the day of its introduction nor Within five days thereafter, a franchise granted by an ordinance introduced and passed on April 2, 1906, was void, and was not validated by an ordinance introduced and passed on May 7, 1906, confirming the transfer of the franchise of April 2d, by the grantee of the council to an assignee, and also granting, the franchise to the assignee; such two ordinances not being legally equivalent to a single ordinance passed in conformity with the act.

[Ed. Note.—For other cases, see Telegraphs #" Telephones, Cent, Dig. § 5; Dec. Dig. 32

2. MUNICIPAL CORPORATIONS @:680, 681 GRANT OF FRANCHISE STATUTE-CONSTRUCTION. The purpose of Ky. St. § 3636, regulating the granting of a franchise by municipalities, being to protect the public interests, its provisions must be carried out according to their unmistakable terms.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1459–1466; Dec. Dig. Q:680, 681.]

Appeal from Circuit Court, Pike County.

Action by James Hatcher and others against the Eastern Kentucky Home Telephone Company and another for an injunction, which was granted. On motion by defendant in Supreme Court to dissolve. Motion denied.

J. J. Moore, of Pikeville, for appellants. Stratton & Stephenson, Of Pikeville, and J. P. Hobson & Son, Of Frankfort, for appellees.

MILLER, C. J. James, John H., and Richard Hatcher, as plaintiffs, brought this a Ction against the Eastern Kentucky Home Telephone Company (hereinafter called the Company for brevity) and N. Starkey, the Sole Owner of said company, for a mandatory injunction requiring them to remove a guy pole and a guy Wire running therefrom to a telephone pole planted on the main street of Pikeville, a city of the fifth class, and in front of plaintiffs' store, so as to greatly narrow the Sidewalk and interfere with its proposed improvement to the curb line of the Street. The circuit judge granted the injunction, and required the Company to remove the telegraph, pole, the guy pole, and the guy Wire, for the double reason that the planting Of the pole and iron guy rod in front Of the entrance of the Hatcher building was an unreaSonable interference With the use of their property, and the Ordinance under which the telephone company operated was invalid. The company has applied to me for a dissolution of the injunction; and, on account of the importance of the questions involved, all the judges of the court heard the argument, and COncur in the COnclusions reached.

The essential facts bearing upon this controversy are, briefly, as follows: The plaintiffs own tWO lots facing on Front Street and extending back to the Big Sandy river, upon which there is a business house. In making certain changes in connection with the remOVal Of its exchange from Front Street to a building on Grace avenue, the company set a telegraph pole near the Curb of the Street in front Of the Hatcher Store.

It also placed

an iron guy rod between the pole and the Store, and about six feet from the pole, and from this iron guy rod it ran a guy wire to the pole for the purpose of bracing it. As the distance from the Hatcher property line to the curb of the street is about twelve feet, the iron guy rod, being placed about midway of that distance, forms an obstruction to the Outer six feet. The inner six feet of this front is now Occupied by a brick Sidewalk; but, since the property owners upon the adjoining square have located their sidewalks along the Curb line, the Hatchers purposed to COnstruct a new Sidewalk along the curb line in front of their property, in order that the Sidewalks in the neighborhood might be uniformly located along the curb line. From what has been above stated, however, it is apparent that the telegraph pole and the guy Wire Will effectually obstruct a sidewalk, if built along the curbstone; and this is the principal complaint in this action. Two propositions were presented upon the argument: (1) That the Ordinance under Which the defendant is operating is invalid; and (2) if it is valid, the use the company has made of the sidewalk is an unreasonable One. [1] Taking up the first question it appears that the franchise under Which the telephone company is operated was bought by John F. Butler from the city of Pikeville under an Ordinance passed April 2, 1906, and the rights thereby acquired were subsequently assigned by Butler to Starkey, the present owner and Operator of the telephone Company. Section 3636 of the Kentucky Statutes proVides as follows: “No ordinance, and no resolution, granting any franchise for any purpose, shall be passed by the city council on the day of its introduc

tion, nor within five days thereafter, nor at any other than a regular meeting,” etc.

This Section Was passed pursuant to Section 164 of the Constitution, which provides:

“No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years, Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.”

The ordinance creating the franchise under which the telephone company is operating was introduced into the city council of Pikeville on the 2d day of April, 1906, and was passed by the council on the Same day. Acting under this Ordinance, the court's Commissioner sold the franchise therein granted to Butler, who thereafter assigned his bid to the Eastern Kentucky Home Telephone Company. Subsequently, on May 7, 1906, the city council of Pikeville passed an ordinance approving and confirming the Sale of the franchise by the commissioner to Butler; and, after reciting the assignment by Butler to the company, the ordinance of May 7th further provided as follows: “Now, in pursuance to said transfer from said J. F., Butler to the Eastern Kentucky Home Telephone Co., be and it is hereby granted the right, privilege, authority, and franchise to erect, operate and maintain lines of telephone and telegraph including the necessary poles, fixtures and electrical conductors upon, along and over the public roads, streets and highways of the city of Pikeville, for a period of twenty years, as the business of the purchaser, successors, and assigns may, from time to time, require.” The second clause of the Ordinance above quoted, as well as the succeeding five clauses thereof, Which relate to the details of the construction of the telephone system, the charges it shall be authorized to make, etc., are but repetitions and Copies of Similar clauses in the original ordinance of April 2, 1906. But this ordinance of May 7, 1906, Was also passed by the city council on the Same day of its introduction into that body. It is contended by counsel for the plaintiffs that the original ordinance of April 2, 1906, is Void, because it Violated Section 3636 of the Kentucky Statutes, supra, in that it was passed by the city council on the same day Of its introduction, and did not lie Over five days thereafter, as is required by the statute. The company attempts to avoid this criticism of the Ordinance of April 2d by relying upon the ordinance of May 7, 1906, above referred to, which passed the council on that day, and granted the franchise to appellant pursuant to the Ordinance theretofore introduced on April 2d.; and in support of this contention the company relies upon Cumberland Telephone & Telegraph Co. v. Hickman, 129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep. 730. In other words, the company would treat the two ordinances as One Ordinance which was introduced into the city council on April 2, 1906, and passed by that body on May 7, 1906. We do not, however, understand that the case of Cumberland Telephone & Telegraph CO. V. Hickman, above relied on, justifies this procedure. In that case certain promoters asked that they be permitted to install a public telephone exchange Within the municipality. Their proposition was submitted to an extra session of the council held on August 16, 1894, for the purpose of considering the proposition. The council determined to grant the franchise and directed its clerk to advertise a public sale of the franchise On September 3, 1894, which was the date Of the next regular meeting of the council. Furthermore, at the meeting on August 16th there was introduced an Ordinance setting forth the terms Of the telephone franchise to be granted, and this ordinance was laid over until the next meeting, to be held on September 3d. The Sale Was made as advertised, and, the bid having been reported to the council for its action on September 3,

G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

thereupon unanimously passed the ordinance Which had theretofore been introduced On August 16th creating the franchise. While the ordinance accepting the bid of the purchaser of the franchise was passed on September 3d, the same day it was introduced, the initial Ordinance creating the franchise Was introduced On August 16th, and WaS adopted at the regular meeting held on September 3, 1894. It will thus be seen that the initial Ordinance in the Hickman Case had laid Over more than the necessary five dayS from its introduction into the city council, as is required by section 3636 of the statutes, Supra. In the case at bar, however, the ordinance creating the franchise Was introduced into the city Council on April 2, 1906, and was passed and approved at the same meeting. It did not lie over for five days after its introduction, as required by the statute supra, or for any period of time. The ordinance of May 7, 1906, accepting the bid of Butler, evidently attempted to cure the defect connected with the passage of the ordinance of April 2, 1906, by attempting to regrant a franchise to the purchaser substantially identical in terms with the franchise theretofore granted by the ordinance of April 2, 1906; but this curative Ordinance of May 7, 1906, is subject to the same criticism as to its passage that is made against the ordinance of April 2, 1906. They Cannot be treated as One Ordinance introduced on April 2d and finally passed on May 7th, because they are two separate and distinct Ordinances, and, although they have several provisions which are substantially alike, they are not identical and do not purport to be the Same Ordinance. In the Hickman Case the court held, in Strict accordance With the terms Of the Statute, that the Ordinance creating the franchise must lie over five days after its introduction into the city Council. It also held that the Ordinance or resolution accepting the bid and formally granting a franchise to the purchaser could be passed at the Same meeting at Which it was introduced into the council; in other words, the court there held that, while the statute required the Ordinance creating the franchise to lie Over five days after its introduction into the council before it was finally passed, the statute nevertheless permits the ordinance accepting the bid of the purchaser and formally granting the franchise to him to be passed at the session of its introduction. * But all this is quite different from the method followed in the case at bar, since the initial Ordinance of April 2, 1906, Creating the franchise did not lie Over five days, and consequently was passed in violation of the express terms Of the Statute, Which are mandatory. East Tenn. Tel. CO. W. Anderson County Tel. Co., 57 S. W. 457, 22 Ky. Law

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