tion. This, however, does not prevent the use of the deposition for the purpose of contradicting the witness, if he makes a statement different from the one made by him upon the same subject in the deposition. [8] With the motion for a new trial, one of the grounds of which was that appellant was taken by surprise by the witness Thomas changing his testimony and testifying that he gave the engineer a come-ahead signal when in his deposition he had stated that he had not done so, the affidavit of Thomas was filed, in which he stated that he did not in fact give such signal to the engineer, but was induced to make a statement that he did through fear, which was caused by a threat made to him shortly before the trial by an agent of appellee, to the effect that, if he did not so testify, he would be prosecuted and put in the penitentiary, but that if his testimony on the trial was satisfactory, the agent would see him after the trial. The individual whom Thomas designated as having made the threat and promise denied doing so, and Thomas is not in any wise corroborated by any circumstance, except that the agent admits having sought Thomas out for the purpose of procuring him to sign a statement in regard to what he would testify upon a trial. The case does not seem to come within the rule declared in Liverpool, etc., v. Wright, etc., 158 Ky. 290, 164 S. W. 952. Hence, as appellant did not ask that the jury be withdrawn and the cause continued, but took his chances on a trial, he cannot complain of a surprise. Remley v. I. C. R. R. Co., 151 Ky. 796, 152 S. W. 973;

a witness was taken and filed, and upon the first trial of the action the deposition was read, but upon a second trial, after it had been read, a motion was made to exclude its contents as evidence, upon the ground that the witness was then living within 20 miles of the place of the trial, but this court held that the objection came too late, as no written exception was filed to the deposition before the swearing of the jury or the commencement of the trial, and cited in support of this conclusion section 587, Civil Code. It has also been held that an exception to a deposition, in an action at law, on account of defective certificate of the officer or the officer before whom it was taken, comes too late if not made before or during the first term of court after the deposition is filed. L. & N. R. R. Co. v. Shaw, 53 S. W. 1048, 21 Ky. Law Rep. 1041. Section 587, supra, provides that an exception must be filed to a deposition, to be available, before or during the first term of court after the filing of the deposition, and a condition might exist which, under section 554, supra, would entitle the deposition to be read. at the first or a subsequent term after it was filed, and the condition might cease to exist before another term at which it is offered to be read. Hence it would seem that sections 587 and 554, supra, must be read and construed together. Section 587, supra, it will be observed, does not require that an exception to the competency of the witness or to the competency of the testimony to be filed or noted on the record before the commencement of the trial and before or during the first term of the court after the filing of Travelers' Insurance Co. v. McInerney, 119 the deposition, but an exception to the competency of the witness or the competency of the testimony may be made during the trial. Subsection 2, § 587, supra. When the deposition of a witness is taken in an action at law, it becomes in legal contemplation the witness, and is not competent, unless at the time it is offered to be read one of the conditions exist, touching the author of the deposition, which is provided for by section 554, supra. A deposition of a witness in an action at law is taken subject to the contingency that the witness who gives the deposition a witness of appellant, that he had no right will not be present in court at the trial, and to impeach him, and, having stated that he is never competent when the witness is pres- gave a come-ahead signal to the engineer, ent at the trial and able to testify. 8 R. C. the case for the appellant is destroyed and L. 1136, 1137. If the rule stated in Houston, the peremptory was proper. It would hardetc., v. Smith, 166 Ky. 74, 178 S. W. 1145, ly be contended that, if Thomas had not Edmonson v. Kentucky Central Railway Co., been introduced as a witness at all, the case 46 S. W. 679, and City of Louisville v. Mul- should not have been submitted to the jury. doon, 49 S. W. 791, 20 Ky. Law Rep. 1576, is If appellant, instead of reading the examcontrary to that herein expressed, it is no ination in chief of Thomas in the deposition, longer adhered to. Hence the court erred had called him and examined him orally in in overruling appellee's objection to the read- open court, and he had made the statement ing of the deposition of Thomas when he that he gave the signal, as he did upon his was present in court and able to testify, as, cross-examination, thus stating a circumwhen in the trial of an action at law a wit- stance which appellant did not expect that ness is present and in court, every reason he would state, the appellant would have the

S. W. 171; Thompson v. Porter, 4 Bibb, 70; Monarch v. Cowherd, 114 S. W. 276; Shipp v. Suggett, 9 B. Mon. 5.

[9] The question now remains whether there was any evidence of facts proven and inferences reasonably to be drawn therefrom which would go to prove the appellant's cause of action. It is insisted that, inasmuch as the deposition of Thomas was improperly permitted to be read, it should, upon the motion for a directed verdict, be treated as not having been read, and, as Thomas was

to disprove the truth of that statement by | tradictory statement was already in evidence putting the deposition in evidence, to the through the error made in admitting it as extent that it would have shown that he had evidence when it was not competent as such, theretofore stated or sworn that he did not and when it was really only competent for give any such signal. While a party may the purpose above stated, and the only error not impeach his own witness by proof of his as it turned out was as to the time at which bad reputation, and if he introduced a wit-it was introduced, so far as it served to ness to prove certain facts by him and the contradict the statement of Thomas that he witness denies that they existed or denies gave the signal to the engineer. The stateknowledge of them, the party introducing ment of Thomas in his oral cross-examinahim cannot offer evidence showing that the tion did not entirely destroy the plaintiff's witness had theretofore made statements, cause of action made by the facts to which which were different, for the purpose of proving the existence of the facts, but when ferences to be drawn therefrom, when the he and Higgason had testified and the ina party introduces a witness who makes an affirmative statement prejudicial to the inter- truth of the statement made by Thomas was est of the party, he may disprove the truth contradicted flatly by a previous sworn stateof the statement by showing that the witness ment, and besides, in addition to this, the has theretofore made a statement different appellee made a strong attack upon the credand contradictory to the one made by him as ibility of Thomas by showing that he had a witness. Dukes v. Davis, 125 Ky. 313, 101 made at least one statement in regard to S. W. 390, 30 Ky. Law Rep. 1348; Bergman the matter, previous to the time of his tesv. Solomon, 143 Ky. 581, 136 S. W. 1010; tifying, which was contradictory to that Nicholson v. Rust, 52 S. W. 933, 21 Ky. Law made by him as a witness upon the trial. Rep. 645; Loving v. Commonwealth, 80 Ky. The credibility of witnesses is always a 507; Blackburn v. Commonwealth, 12 Bush, question for the jury. Hence it could not be said that, after all of the evidence was heard it was without contradiction and failed to support, to any extent, appellant's cause of action, and hence the court was in error in peremptorily directing the jury to find a verdict for the appellee.

181.

[10, 11] The appellant, in the instant case, laid the foundation for the contradiction of Thomas' statement that he had given the signal to the engineer after Thomas had so testified in his oral examination by asking Thomas if he did not testify in his deposition The judgment is reversed, and cause rethat he did not give the signal to the engi-manded for proceedings consistent with this neer. The deposition containing the con- opinion.

agent of the company before the expiration, any maintenance or guaranty of the work the of the year that no further bond would be contract premium will be paid annually until required or premium paid.

[1-3] We do not know what the provisions of the bond are, except as they are recited in the allegations of the pleadings, but it appears that it was conditioned that the contractors should faithfully perform the contract. As has been said, the application was so prepared as to be adapted for a bond of any kind, and its provisions must, of course, be construed most strongly against the company. It was not improper for the court to consider the character of the contract to cover which the application for the bond was made. It was in the contemplation of the parties that the contract would be completed in 7 working months, which was shown to be ordinarily less than 12 calendar months, and the work was not completed within that time because of the default of the improvement district. Its funds became exhausted, and the work was stopped on that account, and has not been resumed. Under these circumstances the contractors had the right to notify their surety that the bond was no longer required, and that notice was given.

the indemnitor furnishes the surety with like evidence of the completion of the contract, which will be the commencement date of maintenance and maintenance premium."

It is conceded that no notice was sent to the home office of the company at Denison, Tex.; but it is not denied that notice was given to the local agent who took the appli

cation.

No contention is made that the bond of the contractor contained any provision for the maintenance or upkeep of the road, or that there was anything in connection with the contract for the construction of the improvement which would have extended the liability of the contractor beyond the time of the completion of the contract, and clause 4 is therefore of no controlling importance.

Upon a consideration of all the testimony in the case, we think the court was warranted in the finding made that the application did not contemplate that a bond would be required for a greater period than one year, for the contract was not one under which any liability could ordinarily have arisen after the first year. There are, of course, many [4] It is not of controlling importance that contracts the performance of which would the blank space in which the amount of the necessarily or likely extend over a period of premium was later written was not filled by more than a year and where liability of the the applicant or by the agent who took the surety might accrue in one year or in anothapplication, because the parties contemplat-er, and it was the evident purpose of the proed that the application would become effective upon its receipt at the home office of the company and its approval there and the execution of the bond which the improvement district required, so that, if it was essential to fill this blank, authority so to do was impliedly conferred upon the company. Etna Indemnity Co. v. Ryan, 53 Misc. Rep. 614, 103 N. Y. Supp. 756; Geo. Knapp & Co. v. Wilks, 105 Ark. 243, 151 S. W. 280; WhiteWilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208.

[5] Printed directions on the application blank required the agent to fill all blanks, and it was not improper for the court to hear testimony that the blank in question was not filled as tending to show that it was not regarded by the parties as being applicable to the character of bond for which application was being made.

[6] The agent testified that the premium was arrived' at by calculating a given per cent. on the face of the bond. Appellant insists, however, that the clause set out above should be read in connection with clause 4 of the bond, which reads as follows:

"4. The contract premium, if there be no maintenance or guaranty, will be paid annually as above until the surety shall be discharged or released from any and all liability and responsibility upon said bond, and all matters arising therefrom, and competent written legal evidence of such discharge or release, satisfactory to the surety, is served thereon at its office in Denison, Texas. Where the contract bond covers

visions of the application which we have set
out to require the payment of a premium as
long as this liability continued, and to make
the notice given to the company at its office
at Denison the evidence of the termination
of this liability. But to hold this clause 4
applicable to the facts of this case would be
to construe it as imposing a penalty for the
failure to give this notice. The contractor
had no further need of a bond, and had so
notified the agent of its surety. If there
was any liability under this bond, that lia-
bility had already accrued, and the premium
raid covered the assumption of that risk, and
the judgment prayed by the company was
therefore properly refused.
Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
203 S.W.-37

Replevin by J. R. King and wife against Charley Mogk and another. Judgment on Judgment on verdict for plaintiffs, and defendants appeal. Affirmed.

Appeal from Circuit Court, Clay County; that the corn in controversy grew on this W. J. Driver, Judge. part of the farm. They denied that they pointed out a crib on the farm, and told Harlan that it contained the rent corn; that they finished burning the stumps in February, 1917; that most of the stumps were Other witnesses corroborated their testimony pulled off of the land during the year 1916. and said that between 20 and 25 acres had been stumped. Other testimony will be stated or referred to in the opinion. the plaintiffs, and fixed the value of the

This is a suit in replevin by J. R. and MaThis is a suit in replevin by J. R. and Matilda King against Charley Mogk and M. G. Ort to recover possession of 225 bushels of corn alleged to be worth $225. On the 25th day of September, 1915, J. R. and Matilda King, by a written contract, leased to Charley Mogk and M. G. Ort 80 acres of land in Clay county, Ark., for the term of five years, beginning the 1st day of January, 1916, and ending the 1st day of January, 1921. It was agreed that the rent should be one-fourth of all the corn grown on said premises the first year and one-third each year thereafter, onefourth of the cotton, and one-half of the hay. The corn was to be delivered in a crib on the premises, the cotton at the gin, and the hay in a stack or barn. The clause of the lease which caused this lawsuit is as follows:

"It is agreed by and between the parties hereto that the parties of the second part shall not subrent or lease any part of said premises without the written consent of the parties of the first part, and it is further agreed between the parties that the parties of the second part are to have the free use of the land that they take the stumps off level with or below the surface of the land for the year 1916, but are to pay rent as herein specified thereafter."

During the year 1916 the tenants made a corn crop on about 382 acres of the land. They gathered one load of corn of about 25 bushels, and put it on another farm of the landlord's about two miles away. The remainder of the rent corn was placed in a crib on the place where it was grown. The tenants both pointed out the pen in which the corn was cribbed to an agent of the landlord, and stated it was the rent corn.

According to the testimony of I. W. Harlan, the agent, he accepted the corn in the crib as rent on about the 31st day of December, 1916. He never attempted to remove any of it until the 14th day of February, The defendants then forbade him to remove the corn, and informed him that the plaintiffs had all the rent that they were entitled to for that year.

According to the testimony of Harlan, he made and signed the contract for the owners. He was the agent to look after the farm. He stated that none of the ground was stumped in 1916. The defendants claimed the right to remove the stumps at any time during the term of the lease. Harlan denied them this right under the contract. He told them that they had no right to remove the stumps under the contract after the first of the year 1917, but that he would advise them to remove them for their own benefit after that time. On the other hand, the defendants testified that they had pulled the

The court directed a verdict in favor of

the sum of $200. The court thereupon rencorn to which the plaintiffs were entitled in dered judgment in favor of the plaintiffs against the defendants for the 225 bushels of corn sued for, or, in the event that it was not delivered to the plaintiffs, that they should recover of the defendants the sum of $200.

The defendants have appealed.

E. G. Ward, of Piggott, for appellants. W. E. Spence, of Piggott, for appellees.

HART, J. (after stating the facts as above). We have copied in the statement of facts that part of the lease in regard to taking the stumps off of the land. It is the contention of the plaintiffs that under the terms of the lease that the defendants were only to have rent free the land from which they took the stumps off level with or below the surface of the earth during the year 1916. On the other hand, it is the contention of the defendants that they could take the stumps off at any time during the term of the lease. They insist that the lease failed to mention any specific time in which to remove the stumps. The court in its instructions to the jury limited the time to January 1, 1917. This action of the court is assigned as error.

[1] We think the construction put upon the contract by the court was correct. Such construction seems to be borne out by the language of the lease contract. It provides that the tenants are to have the free use of all the land that they take the stumps off of level with or below the surface of the land for the year 1916, but are to pay rent thereafter. The year 1916 was the first year of the lease, and it seems to have been the intention of the parties to require the stumps to be removed or cut off during that year. This is shown by the fact that the tenants. are to pay rent thereafter. It is not reasonable that it was the intention that the tenants should have the land rent free for 1916, and have the balance of the term within which to remove the stumps. It was the manifest intention that they should only have rent free the land from which they took the stumps. If they did not remove the stumps during the year 1916, it could not be known how much of the land they were to have rent free. On the other hand, the rent