Volume 190 — Kentucky Reports

<p>1. Forcible Entry and Detainer — Form of Writ. — A warrant of forcible detainer is not a pleading of the complainant and is sufficient if it conforms substantially with the form prescribed by the Code.</p> <p>2. Forcible Entry and Detainer — Form of Writ. — Such a warrant is therefore not defective because it does not allege a refusal after demand to surrender possession although proof of such a refusal is necessary to a judgment of restitution.</p> <p>3. Forcible Entry and Detainer — Description of Property. — A description of the property in the warrant as, “one house and lot at No. 603 St. Ann Street, in Owensboro, Daviess County, Kentucky,” is sufficient.</p>

<p>1. Insurance — Assignment of Policy Payable io "Wife. — Where a life insurance policy was made payable to the wife of the insured in case she survived him; otherwise to the insured, his executors, administrators or assigns, and the wife died before the insured, an assignment by him during her lifetime to- his children “in case of my wife’s prior death to mine” was valid although ithe wife did not consent to the assignment; and although the insurer did not upon notice consent thereto; and although there was no actual delivery by the assignor of the assignment or policy to his children who were infants of tender years.</p> <p>2. Insurance — Assignment of Policy. — A provision in a life insurance policy that “no assignment of this policy shall take effect until written notice shall have been given the company” is for the benefit and protection of the insurer and does not affect the validity of an assignment as between the assignor and assignee.</p> <p>3. Insurance — Gift by Assignment. — A gift by assignment of a life insurance policy by a father to his infant children is not invalid because of the absence of an actual delivery to and acceptance by the children, where by his acts and conduct he constitutes himself their trustee in retaining possession of the policy.</p>

<p>1. Contracts — Construction.'—The cardinal rule in the construction of contracts is to ascertain from all of its terms the intention of the parties and give it such construction as will carry out that intention; but the intention to be administered is the one expressed by the words employed in the contract and not a secret, unexpressed and only mentally entertained intention.</p> <p>2. Mines and Minerals — Lease—Construction.—A coal operating lease provided for the payment of a stipulated minimum royalty and in another clause of the contract it was agreed that if the lessee was prevented from mining sufficient coal to produce the minimum sum at the agreed rate because of certain enumerated causes and interruptions: Held, that if the lessee in any month was prevented by any of the interruptions from producing enough coal to pay the minimoim royalty that sum should be reduced ■ as provided for in the contract, since the clause providing for such interruptions operates upon and modifies the provision for the payment of a minimum royalty as much so as any other part of the contract.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>1. Waters and Water Courses — Overflow—Measure of Damages.— Where a permanent obstruction is erected by a railroad company in a river which caused the water to overflow the lands of another, the measure of damages to which the landowner is entitled is (the difference in the reasonable market value of the lands immediately before the obstruction was placed in the river and immediately thereafter.</p> <p>2. Waters and Water Courses — Damages—Cause of Action. — In such case a plaintiff can have but one recovery, for he must sue for all damages past, present and prospective or' contingent, and his cause of action accrues when the structure is completed, or at least when first injury is occasioned.</p>

<p>Appeal from Barren Circuit Court.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Oldham Circuit Court.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>1. Appeal and Error — Breach of Contract to Sell Lumber — Evidence. —Evidence examined in suit bY purchaser against seller for breach of contract to sell lumber and held that plaintiff made out his ease and the court erred in directing a verdict for defendant.</p> <p>2. Damages — Anticipated Profits — Special Damages. — Anticipated profits are recoverable as special damages for breach of contract for sale of lumber where it is pleaded and proven that same were in contemplation of the parties when the contract was executed.</p>

<p>1. Divorce — Review of Alimony. — Tbis court is without power to reverse a judgment of divorce, but the evidence upon that question will be reviewed when necessary to determine the question of alimony of which we have revisionary control.</p> <p>2. Divorce — Duty of Husband to Provide Home. — It is both the right and the duty of the husband to provide a home for himself and wife; and, when reasonably exercised to decide where it shall be located, but be cannot exercise the right of choice of location and impose upon the wife the duty of providing a suitable home at the place of his choice when he is amply abl'e to do so.</p> <p>3. Divorce — Duty of Husband to Provide Home. — The wife does not have to sell her home left her by a former husband in one place and with the proceeds purchase a new home in another place where the husband reasonably elects to reside; and where he leaves her and lives apart from her for one year because she will not do so and does not provide or offer to provide her a home where he elects to reside with his own means although amply able to do so, the court did not err in granting her a divorce and alimony.</p> <p>'4. Divorce — Alimony.—An allowance to the wife of $100.00 a month alimony was not excessive upon the evidence in this case.</p> <p>5. Divorce — Attorneys’ Fees.- — An allowance of $500.00 to attorneys for the wife was not excessive and was properly allowed as costs against the husband, since under our statutes the husband is required to pay same unless the wife is both in fault and has ample means of her own, and the wife here was not in fault.</p> <p>6. Divorce — Attorneys’ Pees. — The complaint of the wife that the allowances to her and her attorneys are- too small cannot be considered since she has not prosecuted a cross appeal.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>1. Appeal and Error — Verdict.—A verdict of a jury will not be disturbed by filis court unless it be palpably against the weight of the evidence.</p> <p>2. Appeal and Error — Evidence.—Where there is clear and satisfactory evidence in support of the verdict it will not be disturbed by this court even though this 'court would have made a different finding on the facts.</p>

<p>1. Railroads — Duty to Protect Freight Consigned — Negligence—Loss of Property By Mob. — A railroad company’s employees 'in charge of its yards are charged with the duty of protecting freight consigned therein. In such case the railroad company is an insurer and it cannot relieve itself from liability merely hy pleading and showing that a mob was in progress unless it further shows that the destruction of property did not result through its negligence.</p> <p>2. Railroads — Loss of Property in Transit Through Mob. — A railroad company may contract against liability for loss of goods in transit through a mob but it cannot contract against its own negligence, and it cannot relieve itself by showing that the fire was started by a mob, if it appears -that by ordinary care it could have saved the property between the starting of the fire and its destruction.</p>

<p>1. Negligence — Evidence.—Where the plaintiff relies upon the negligence of the defendant for recovery every fact necssary to show negligence must be proved or admitted — it can not be presumed.</p> <p>2. Negligence — Actionable Negligence — Trespasser or Licensee.— Where a trespasser or licensee was killed by a descending elevator ear while attempting to pass through an elevator shaft, and it is shown by the evidence that when the elevator was in about one foot of his head he gave an alarm, but there was no evidence to show how fast the elevator was going at the time, nor whether it could have been stopped by the operator by the exercise of the means at hand in time to have averted the danger, no actionable negligence was shown.</p>

<p>1. Infants — Indivisible Property — 'Sale of. — Where the interest of an infant in real property was sold because of its indivisibility, there being no exceptions to the report of the commissioners, the rights of appellants are- concluded in their claim upon appeal that the property is divisible.</p> <p>2. Infants — Sale of Indivisible Property — Correction of Judgment.— Where an infant’s interest in real property was ordered sold because of its indivisibility, there should have been adjudged a lien for an amount incurred for street improvement, and the judgment to the extent of the lien should be corrected.</p>

<p>1. Railroads — Railroad Commission — Powers of.' — Tbe railroad commission being a creation of tbe statute can exercise no power», except those conferred by tbe statute.</p> <p>2. Railroads' — Stations—Powers of Court in Respect to. — A court has no independent jurisdiction to order a railroad company to build or repair a station as tbe legislature has conferred on tbe railroad commission powers in respect to stations, and when power in relation to specific matters has been given to an administrative body this body must take appropriate action concerning tbe matter delegated to it before tbe courts have jurisdiction to act.</p> <p>3. Railroads — Power of Court in Respect to Stations and Other Matters Concerning Railroads. — A court may have independent jurisdiction to compel a railroad company to do the -things needed to enable it to perform tbe purposes for which it was created when the authority to require it to do these things has not been conferred by the legislature on some administrative body.</p> <p>i. Railroads — Power of Railroad Commission in Respect to Stations. —.Section 772 of the Kentucky Statutes gives the railroad commission power to order stations “burned or otherwise destroyed” or that “¡become unfit for the accommodation of the .public” to be rebuilt or repaired as the case may be.</p> <p>5. Railroads — Power of Railroad Commission in Respect to Stations. —The railroad commission has no power to order a new station to take the place of an existing one. It can only order it so repaired as to make it fit for the public accommodation. But when a station has been “burned or otherwise destroyed” it may order a new station built.</p> <p>6. Railroads — Stations—“Burned or Otherwise Destroyed” — 'Definition of. — A station is “burned or otherwise destroyed” when from fire or other cause it has become totally unfit for use.</p> <p>7. Railroads — Penalties for Failing to Comply with Orders of Commission. — If a railroad company fails to comply with proper orders of the railroad commission in respect to stations it may he punished under section 793 of the Kentucky Statutes.</p> <p>8. Railroads — Railroad Commission — Powers Under Section 830 of Statute.' — Section 830 of the Kentucky Statutes gives the railroad commission no power to enforce any orders or directions it may make under this section. It can only lay the facts before the attorney general and report to the legislature what it has done.</p>

<p>Appeal from Greenup Circuit Court.</p>

<p>1. Vendor and Purchaser — Bonds for Title. — A title bond is a contract to convey and can not take the place of a recorded deed, and while it is insufficient to pass a legal title it gives to the holder an equitable right superior to the claim of title on the part of a subsequent purchaser with notice.</p> <p>2. Vendor and Purchaser — Bonds for Title. — Actual possession of land under a title bond is notice to would be purchasers of the fact that the possessor who claims to own it has an interest in the property.</p> <p>3. Vendor and Purchaser — Bonds for Title. — A subsequent purchaser with actual notice of the claim of one in possession under a title bond takes subject to the rights of such possessor.</p>

<p>1. Mortgages — Failure to Execute Note. — A provision in. a mortgage to secure the payment of a stated indebtedness which provides that the sum is to be paid four months from date, imports a promise to pay, and though the parties failed to execute a note as provided, the mortgagee is entitled to a personal judgment against the mortgagor in a suit for the consideration.</p> <p>2. Dandlord and Tenant — Rent.'—Though there was no writing, as required by Ky. Stats., sec. 470, evidencing the assignment or transfer of a lease for a longer term than one year, where,it is shown that the lease had been considered as cancelled, the assignees who had attorned to the owner, occupied the premises as tenants at will and were liable for the rent during the period of their occupancy.</p> <p>3. Landlord and Tenant — Rent.—In a Suit instituted by the landlord to collect rent, to which only the original lessees were made parties, it cannot be said those who' purchased from the lessee the personalty which was sold, were deprived of their property without due process of law, where they had notice of the suit, were present at the sale, and purchased the property, besides, at the time the suit was filed and the property sold said purchasers were occupying the premises as tenants of the plaintiff, and the rent sued for was for the period covered by their occupancy.</p>

<p>Pleading — Exhibits.—Where an exhibit,, which is the basis of the action, is filed with the petition, the exhibit will control; and where there is a variance between the exhibit and the pleading the exhibit will prevail.</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>1. Assault and Battery — Provocation—Mitigation of Damages.— Under section 73a of the Kentucky Statutes the defendant in an assault and battery case may plead as a defense to the claim for punitive damages, provocation preceding the assault and battery.</p> <p>2. Assault and Battery — Provocation—Sufficiency of. — Under this statute the provocation that caused the defendant in an assault and battery suit to bring on the difficulty may arise out of recent abuse or misbehavior by the plaintiff towards the defendant or some member of his family.</p> <p>3. Assault and Battery — Threats—'Competency of. — It is admissible for the defendant in an assault and battery suit where self defense is pleaded to introduce evidence of previous threats made by the plaintiff against him.</p> <p>4. Assault and Battery — Threats—When Party May Testify as to. — ■ It is competent for the defendant in an assault and battery case to testify that threats were communicated to him 'before the difficulty and to give the names of the persons who furnished the information, but if he wants to prove the nature of the threats ■he must introduce the witnesses to whom the threats were made -and who communicated them to him and should not be permitted to relate what these witnesses told him unless he shows they are dead or their evidence cannot be procured.</p> <p>5. Assault and Battery — Character of Plaintiff.- — In an assault and battery suit it is admissible for the defendant to show the violent, quarrelsome character of the plaintiff.</p>

<p>Appeal from Boyle. Circuit Court.</p>

<p>. Railroads — Injuries to Persons on or Near Tracks — Negligence— Contributory Negligence — Questions for Jury. — In an action against a railroad for injury to a child at a place where the company owed the duty to maintain a lookout and to give reasonable warning of the train’s approach, evidence examined and questions of negligence and contributory negligence held for the jury.</p> <p>2. Appeal and Error — Railroads—Injuries to Persons on or Near Tracks — Trial—Instructions.—Where defendant did not offer a qualification of a given instruction or another instruction presenting the theory -that defendant was under no duty to warn plaintiff of the approach of the train if plaintiff knew of its approach, defendant cannot complain of an instruction in the usual form telling the jury that it was the duty of defendant to give reasonable warning of the train’s approach where 'there was substantial evidence that plaintiff did not know of its approach, although there was some evidence to the contrary.</p> <p>3. Railroads — Injuries to Persons on or Near Tracks — Trial—Instructions. — In an instruction telling 'the jury that if they believed from the evidence that the plaintiff, after receiving or having warning or notice of the train’s approach, ran upon the track or so close to it that the injury to him could not have been averted .by those in charge of the engine, if reasonably sufficient lookout had been observed, they should find for the defendants, '.the use of the words, “if reasonably sufficient lookout had been observed,” was proper where there was evidence tending to show ■ that plaintiff went upon the track so far ahead of the train that a proper lookout would have enabled defendant to have warned him of the danger, or to have stopped the 'train in time to have prevented the accident.</p> <p>4. Railroads — Collisions—Negligence—Last Clear Chance. — Where the accident occurs at a place where the defendant is under the duty to maintain a lookout, plaintiff’s, contributory negligence in going upon the track with knowledge of the approach of the train will not defeat a recovery if the defendant, by the exercise of ordinary care, could have discovered his peril in time to have prevented the injury.</p> <p>5. Railroads — Injuries to Persons on or Near Tracks — 'Trial—Instructions. — An instruction telling the jury that, although they believed from the evidence that the defendant was. guilty of negligence in the operation of the train and in the injury to plaintiff, yet, if they should further believe from the evidence that plaintiff, when at a safe distance from the track, knew of the approach of the train and with this knowledge went upon the track and was injured, he assumed the risk of the injury, was .properly refused because it relieved defendant of all liability even though it might have discovered plaintiff’s peril in time to have avoided the injury by the exercise of ordinary care.</p> <p>6. Appeal and Error — Railroads—Injuries to Persons on or Near Tracks. — Instructions..—It is not error to refuse an instruction where there is no substantial evidence on which to base it.</p> <p>7. Appeal and Error — Railroads—Injuries to Persons on or Near Tracks — Instructions.—In an action for personal injuries occurring at a place where a lookout duty was owing, it was not error to refuse an offered instruction telling the jury that if they believed from the evidence that the fireman was engaged in coaling his engine, the defendant was not liable because of his failure to keep a lookout, it being the settled rule in this state that in cities, towns and .thickly settled communities where a lookout duty is required, and the physical conditions are such that a lookout by the engineer alone is not effective, then it is the duty of the fireman 'to keep a lookout unless engaged in the performance of a duty no less urgent and necessary for the protection of human life, and the putting in of coal is not such a duty.</p> <p>8. Damages — $15,000.00 for Loss of Foot Not Excessive. — Considering the increase in the cost of living and the decrease in the purchasing power of a dollar, a verdict for $15,000.00 for injury to a seven year old boy, resulting in the loss of his foot, was not excessive.</p>

<p>Insurance — Payment of Premiums — Failure to Deliver Policy.— Where a payment on the first premium on a life insurance policy accompanies the application for insurance, and is to be applied to ¡such, premium in case the application is accepted and the policy ■issued, but to be returned in case the application is rejected, and the application is accepted and policy issued and forwarded by the company to its local agent for delivery to the insured and the •collection of the balance of the premium, but the agent negligently fails to deliver the policy although requested so to do by the ' insured or his agent, the policy is nevertheless in full force, for the agent of the insurance company in such case is the agent of the -insured and holds the policy for his use and benefit.</p>

<p>1. Appeal and Error — Evidence.—A party, upon appeal, cannot complain of evidence u-pon tlie trial to which he neither objected nor excepted, at the time.</p> <p>2. Criminal Law — Submission to Jury. — In a trial of one accused of a crime or misdemeanor, where there is any evidence, of guilt, although circumstantial, it is the duty of the court to submit the issue ito the jury.</p> <p>3. Criminal Law — Setting Verdict Aside. — A verdict of a properly ■ instructed jury in a criminal trial will not be set aside, upon the ground, that it is against the evidence, unless it ds palpably against tbe weight oí the evidence.</p>

<p>1. Railroads — Change of Location — Obstruction of Streets.- — One who acquires real property in a city at a time when a preliminary survey of a railroad company is located a block or more away, may recover damages of the railroad company if it changes its location so as to obstruct the street in front of property acquired and cut off the means of egress and ingress, or the railroad company in the operation of its trains casts cinders and smoke upon the premises and • otherwise interferes with the enjoyment of the premises.</p> <p>2. . Railroads — Obstruction of Streets. — Where the facts are controverted it is for the jury to determine whether the plaintiff has made out his cause by showing that the streets have been obstructed, or that the railroad in its operation has cast cinders and smoke upon the house.</p>

<p>Appeals from Franklin Circuit Court.</p>

<p>1. Rape — Carnal Knowledge of Female Under 16 Years of Age.— Carnal knowledge of a female under 16 years of age is prohibited by section 1155, Ky. Stats., and one who admits having had such relations with a female whose age is shown not to have exceeded 16 years at the time, is guilty of the crime condemned by the statute aforesaid.</p> <p>2. Rape' — Extent of Proof of Which Defendant Should Be Apprised —New Trial. — Other than the information conveyed through the charge set out in the indictment, the Commonwealth is not compelled to apprise defendant of the nature of the proof it intends to introduce and defendant is not entitled to a new trial'on the ground of surprise when, assuming the prosecuting witness would claim she was not 16 years old on a given date, he prepares his case accordingly, hut upon the trial said witness admitted she was over 16 years old on said date. The only question for the jury was whether the girl was over 16 years of age at the time the crime was committed.</p> <p>3. A party taken hy surprise during the progress of a trial should ask for a continuance and postponement of the case; he cannot go on with the trial and take his chance of a verdict and failing in that then seek a new trial.</p> <p>4. Criminal Law — New Trial. — Claim of surprise first made on a motion for a new trial comes too late.</p> <p>5. Criminal Law — New Trial — Newly Discovered Evidencé.- — The courts should grant a motion for a new trial on the ground of newly discovered evidence when, on account of its materiality and probable effect, a manifest injustice would result from a failure to allow its introduction.</p> <p>6. Criminal Law — New Trial — Newly Discovered Evidence. — Newly discovered evidence of an impeaching and cumulative nature and not of so controlling a character as is reasonably calculated to have a decisive influence on a retrial, is not ground for a new trial.</p> <p>7. Criminal Law — New Trial — Newly Discovered Evidence. — To entitle a party to a new trial on the ground of newly discovered evidence, the new evidence must he important and have been discovered after the rendition of the verdict.</p> <p>8. Criminal Law — Misconduct of Jury — Discharge of Jury.- — On a motion to discharge the jury on the ground of misconduct o£ one of their number where evidence was heard on the motion and this evidence is not before us, the presumption prevails that the conclusion of the trial court in overruling the motion is correct.</p>

<p>Appeal from Boyle Circuit Court.</p>

<p>Appeal from Washington Circuit Court.</p>

<p>Appeal from Boyle Circuit Court.</p>

<p>1. Receiving Stolen Goods — Indictment and Information — Variance. —In an indictment for receiving stolen goods it is only necessary that the owner of the goods be named and a variance is immaterial where the indictment specifically describes the property-stolen which it charges the defendant with receiving.</p> <p>2. Receiving Stolen Goods — Indictment and Information — -Sufficiency. —In an indictment for receiving stolen goods it is not necessary to allege that it was the purpose of defendant to permanently deprive the owner of the use thereof, where it is averred that the receiving of the goods was done unlawfully, wilfully and feloniously.</p> <p>3. Criminal Law — Accomplices—Corroboration.—The case was - properly submitted to the jury as the evidence of the accomplice was sufficiently corroborated.</p>

<p>Appeal from Pendleton Circuit Court.</p>

<p>1. Municipal Corporations — Quorum or Number Required to be Present to Act. — A quorum of a representative body, wi'tb a definite membership, sufficient 'to authorize the transaction of business, in the absence of statutory provisions to the contrary, must consist of a majority of the membership of the body, which should include all of the members provided for whether they be filled or not; but it is competent for the legislature or that department of the state creating the board or body, to provide what shall constitute such a quorum, or to authorize the body itself to determine what shall constitute a quorum.</p> <p>2. Municipal Corporations — Quorum or Number Required to be Present to Act — -Election of Health Officer. — The statute (section 2054a-21, vol. 3, Kentucky Statutes) providing for a board of health in cities in this Commonwealth having more than ten thousand population, prescribes that the board shall consist of six members appointed by the council of the city, and that the mayor of the city shall be an ex-officio member thereof, and that the board as so constituted should elect a health officer for the city. Held, that the mayor as an ex-officio member of the board has all the power and authority of any other member and should be estimated in counting a quorum; and further, that for the purpose of electing a health officer for the city the board had a membership of seven (the health officer to be elected not to be estimated in counting a quorum although after his election he became an ex-officio member of the board) and that at a meeting where four members of the board, including the mayor, were present and elected a health officer his election was valid, since the four members present including the mayor constituted a quorum of the board for that purpose.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p>

<p>Receivers — Title to and Possession of Property — Waste.—In an action, wherein the title to land is involved, a receiver should not he appointed for the land, when it is not shown, that the party-applying for the receiver, is not in the enjoyment of all the land and all the rights which he claims in it; and if a party to the action is shown to be in possession and claiming the ownership of it, a receiver should not be appointed, unless, it appears, that the party in possession is insolvent and committing waste thereon; and if the land is jointly owned, a receiver should not be appointed unless the one in possession is committing waste, or excluding the other joint owners, or at least doing something in derogation of the rights of the others interested, and there is no other available remedy to protect the rights of all.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Fraud — Actionable Fraud — Want of Consideration. — A promise unsupported by a consideration and to be performed in the future made by a son to his aged father held to be actionable fraud where it was fraudulently made by the son to defeat his father’s right to .redeem his land purchased by the son at execution sale for less than one-third of its value, and was relied upon by the father until his statutory right of redemption had expired.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>Appeal from Simpson Circuit Court.</p>

<p>Appeal from Hardin Circuit Court.</p>

<p>(Common Pleas, Third Division). Appeal from Jefferson Circuit Court.</p>

<p>1. Officers — County Road Engineer — Term.—The amendment of 1918 to the act of 1914 creating the office of county road engineer did not definitely fix the time at which the term of office of county road engineer should expire as the first of January, but expressly provides that such engineer shall serve a period of two years from and after the first day of January, and until his successor is appointed and qualified.</p> <p>2. Officers — Holding Over — De Jure Officer. — Salary.—Where one is holding^an office for a specified term and until his successor is elected and qualified, if at 'the expiration of the specified term no one capable of holding the office has been elected and qualified, the incumbent may hold over, and the hold over period is as much a part of his term of office as was that before the expiration of the specified term, and during such period he is a de jure officer and as such may maintain an action for his salary.</p> <p>3. Judgment — Plea in Bar. — An attempted plea in bar which does not show such identity of the issues involved in the instant case and those involved in the former action, the judgment in which is relied on in bar, and which does not allege facts showing that the matter in issue was actually and necessarily litigated in the former action, is an -insufficient plea in bar.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p>

<p>Appeal from Allen Circuit Court.</p>

<p>1. Contracts — Alteration.—A written contract may be altered, modified or even -substituted by a subsequent oral one in all cases where the law does not require the contract to be in writing; but for the oral alteration or modification to be effective it must be supported by a legal consideration which need not be the payment of money or delivery of property, but it may be anything which is of benefit to the promisor or detriment to the promise. And, “benefit” in this connection means that the promisor has in return for his promise acquired some legal right to which he would not otherwise have been entitled; while the word “detriment” as so used means that the promisee has in return for the promise forborne some legal -right which he otherwise would have been entitled to exercise.</p> <p>2. Contracts — -Failure of Consideration. — In the absence of the payment of money or the delivery of property, or an agreement to do so, and in the absence of -some such benefit or detriment as above defined there is a failure of consideration and no legal rights accrue to the parties.</p> <p>3. Contracts — -Construction—Intention of Parties. — In the interpretation of contracts courts are chiefly concerned as to the intention of the parties as expressed by the terms they employ, which is always -to be administered if it can be ascertained from the entire contract.</p> <p>4. Contracts — Intention of Parties. — In arriving at the intention of the parties words may be discarded as surplusage when necessary to effectuate the intention, and if a contract is equally susceptible to two constructions, the one being equitable and just to the parties, while the other is oppressive and inequitable, to one of them and places him -at the mercy of the other, the more equitable interpretation will be adopted; likewise in such cases if necessary to reconcile the ambiguity and to administer the intention of the parties it will be construed more strictly against the one who prepared and printed it and who employed the words in which it is expressed.</p> <p>5. Contracts — -Construction.—In case of an irreconcilable conflict between written words and fi-gures in a contract the figures will ■surrender to the written words and the latter will prevail.</p> <p>6. Contracts — Construction.—Where a written contract with a real estate agent for the sale of land provided that he should have until “60 days” in which to sell it and then provided that the sale should be at auction and held not later than a stipulated day which was far short of the “60 days:” Held, that the term “60 days” should be discarded, since it was plainly the intention of the parties to provide for only one sale, which was at “auction” and which \yas to occur on or before the day fixed in the contract for it.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>Appeal from Livingston Circuit Court.</p>

<p>1. Negligence — Fires.—A vendor who has sold and conveyed his property to another, and who remains in possession under an agreement, is liable if he negligently causes a fire which destroys improvements thereon.</p> <p>2. Negligence — Fires—Actions Between Individuals. — The liberal rules of evidence permitted by the courts in actions against railroad companies for damages caused from fires resulting from the escape of hot cinders, will not be applied in actions between individuals for the negligent causing of a fire in a dwelling house.</p> <p>3. Negligence — Fires—Vendor Remaining in Possession. — A vendor so remaining in possession of a house by agreement and using the same only in such manner as is customary, and in such way and for such purposes as it is generally used, is not guilty of negligence and consequently not liable.</p> <p>4. Negligence — Fires—Burning of Refuse. — The burning in an open grate, in small quantities, of paste board boxes or other refuse customarily destroyed in that way by housewives, is not negligence.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>1. Fraud — Actionable Fraud — Deceit.—To constitute actionable fraud it must appear (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should -be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. It is not necessary that the fraudulent misrepresentation be in writing; as in such case the right of action arises out of the fraud and deceit of the defendant, it is not affected by the statute of frauds.</p> <p>2. Fraud — Misrepresentation.'—The gis't of a fraudulent misrepresentation is the producing of a false impression upon the mind of the other party, and if this result is actually accomplished, the means of accomplishing it are immaterial.</p> <p>3. Fraud — Misrepresentation.—The rule requiring investigation by •the person to whom a misrepresentation is made, does not apply if any relation of trust or confidence exists between the parties, so that one of them places peculiar reliance in the trustworthiness of the other; but in such case the latter is under a duty to make full and truthful disclosure of all material facts, and is liable for fraudulent misrepresentation or concealment.</p> <p>4. Appeal and Error — Pleading.—As in this case the averments of the appellant’s petition state a cause of action for fraud, the ruling of the circuit court in sustaining a general demurrer to and dismissing the petition, constitutes reversible error.</p>

<p>Deeds — Reconveyance—Contemporaneous-, Collateral Agreement to Convey. — One who sells and conveys land by a general warranty deed without reservation therein cannot have a reconveyance of the land in the absence of fraud unless there be a contemporaneous, collateral agreement to reeonvey and then only upon clear and convincing proof of the existence and contents of the collateral agreement.</p>

<p>Appeal from Bourbon Circuit Court.</p>

<p>1. Criminal Daw — Acts Occurring in Different Counties — Jurisdiction. —The court of a county, in which a crime is wholly committed alone has jurisdiction of it, but, if the acts and effects constituting a crime occur in different counties, the courts of either have jurisdiction of the crime.</p> <p>2. Receiving Stolen Goods — Elements of Crime. — To constitute the crime of knowingly receiving stolen property, the property must theretofore have been the subject of a larceny by one other than the receiver of the goods; the reception must have been with the knowledge of the recipient, that the property had been stolen; and the reception must have been with the intention to deprive the owner of it.</p> <p>3. Receiving Stolen Goods — Place Where Crime Committed. — The crime of knowingly receiving stolen property under the statute is a crime complete in itself, and the place of its commission is not controlled by the place of the larceny, but, is committed where the stolen property is received, with knowledge of its character.</p> <p>4. Receiving Stolen Goods — Elements of Offense — Evidence.—To sustain a conviction for the crime of knowingly receiving stolen property, a guilty knowledge must be shown on the part of the recipient, but, it is not necessary to prove an absolute knowledge from express information received or personal observation of the larceny, but, if such facts are shown, as from which a reasonable man of ordinary observation would morally know, that the goods had been stolen, this will constitute such evidence as from which the jury may infer, that the recipient had full knowledge of the character of the property, but, mere suspicion or belief, in the absence of suck, circumstances as above described will not sus tain a conviction.</p> <p>5. Receiving Stolen Goods — Knowledge of Pact. — The rule in equity, wbicb provides that one shall be deemed to have knowledge of a fact, when such circumstances are brought to his attention, as would cause a man of ordinary prudence to be upon his guard, ■ and when diligently pursued would result in a knowledge of the fact, does not apply to knowledge of the stolen character of goods, as such rule would make one liable to criminal punishment for want of ordinary prudence or negligence.</p> <p>6. Receiving Stolen Goods — Evidence.—Guilty knowledge in the reception of stolen goods, as well as the fact of receiving such goods, can be proven by evidence of circumstances, as any other facts may be proved.</p>

<p>Aplpeal from McCracken Circuit Court.</p>

<p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p>

<p>Appeal from Fulton Circuit Court.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>1. Criminal Law — Setting Aside Verdict. — A verdict of guilty in a criminal case will not be set aside on the ground of the insufficiency of the evidence to support it, unless it be so flagrantly against the weight of the evidence as to indicate that it was returned through passion and prejudice on the part of the jury; and this rule applies where the evidence is only circumstantial in which case the verdict will be upheld unless the circumstances proven are such as to have but little or very remote probative qualities and amount to no more than a mere suspicion of guilt.</p> <p>2. Witnesses — 'Impeachment.-—Before a witness who is not a party to the suit may be impeached by proving contrary statements which he made out of court a foundation must be laid for the introduction of such contrary statement by inquiring of the witness concerning the statement with the circumstances of time, place and persons present, and this rule applies in criminal as well as civil cases.</p> <p>3. Searches and Seizures — Warrant.—Under section 10 of our present Constitution, and article 4 of the amendments to the Federal Constitution, it is unlawful for an officer to search the premises, •houses or possessions of a suspected offender without a duly issued search warrant authorizing him to do so, and evidence seized as a result of such unlawful search may not be used against the supposed offender in his trial on a charge subsequently brought. But if the search, though made without a warrant, is done with the permission, voluntary agreement and consent of the one rightfully in possession of the thing searched, the above rule will not apply and articles found as a result thereof may be relied on by the Commonwealth as evidence against the offender.</p>

<p>Appeal from Madison Circuit Court.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Criminal Law — Account Books — Entries—Evidence.—An account book kept and owned by a person other than the accused, though containing an entry of a date relating to the latter’s whereabouts when the crime charged was committed, properly could not be introduced, or its contents read as evidence against him when oh trial for the crime. But it was competent for the owner of the book and maker of the entries therein, when testifying as a witness, to refresh his recollection as to the material date shown by the entry in the book by examining the book and entry in the presence of the jury and then state, independently of the book, as was permitted by the court, such date and any fact showing its relevancy to the case known to him.</p>

<p>1. Municipal Corporations — Sewers—Damages.—The legal obligation of a municipal corporation to construct sewers is one to be voluntarily assumed, and if it does not undertake to create a system of sewers it is not responsible for damages caused by freshets. But when the municipality assumes the obligation of constructing a sewer it must keep the same in good order and repair, and is liable in damages for injuries caused by its failure so to do.</p> <p>2. Municipal Corporations — Sewers—Overflows.—If the municipality owns or controls a sewer, its duty goés no farther than to see that it is so constructed and maintained as to carry off sewage emptied into it and prevent such overflows of the premises of property holders of the city as may be caused by ordinary rainfalls, i. e., such heavy rainfalls as might reasonably be expected in the locality. The city will not be responsible for overflows from extraordinary rainfalls, such as are not reasonably to be expected.</p> <p>3. Municipal Corporations — Sewers—Damages.—Where in an action brought against a city by a property owner to recover damages for an overflow of his lot and building from a sewer, caused, as alleged, .by the defectiveness of the sewer, and the answer of the city denies its ownership and control of the sewer; also that it was defective and controverts the plaintiff’s right to damages, the issues thus made are to be determined by the jury under proper instructions of the trial court, from all the evidence introduced by the parties; and where, as in this case, the evidence is conflicting and the instructions correctly give the law, a verdict for the city will not be disturbed unless found to be flagrantly against the evidence, which does not appear.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>Appeal from Bell Circuit Court.</p>

<p>1. Appeal and Error — Matters Appearing of Record- — -Regularity of Proceedings — Presumption.—'Where there is nothing in the record of a road proceeding to show that the order of the county court selecting the route recommended by the viewers was entered in vacation, it will be presumed that the order was entered at the proper time.</p> <p>2. Highways — Proceedings for Alteration — Notice to Landowners Before Order is Entered Selecting Proposed Route. — Under Kentucky Statutes, section 4-301, providing that ‘if the court decides to undertake the proposed work, the county judge shall appoint a day for hearing the parties interested and cause notice thereof to be given'to the proprietors and tenants of the property which would have to be taken or injured to show cause against the same,” it is not necessary that the court -should give such notice before selecting the proposed route. The order is merely interlocutory and subject to change after the hearing, and all that is necessary is, that those affected be given an opportunity to be heard.</p> <p>3. Highways — Proceedings for Alteration — -Sufficiency of Report of Viewers on Disadvantages to Landowners. — Under Kentucky Statutes, section 4301, providing that the viewers shall report in writing the advantages and disadvantages, which, in their opinion, will result as well to individuals as to the public from the proposed work, etc., a report by the viewers fixing the amount of damages to be paid t-o tlhe lan-d-ow-ners w-as -a substantial compliance with the -statute on the question of disadvantages.</p> <p>4. Appeal and Error — Highways—-Proceeding for Alteration — When Point That Proposed Route Ran Through Orchard Cannot be Raised on Appeal. — -Where, in a proceeding for the alteration of a road, the viewers reported that the proposed route would not take any orchard or part thereof, and this statement was not contradicted by answer or exceptions, it is too late to insist for the first time in the Court of Appeals that the proceeding should be dismissed, because the evidence on another issue tended vaguely to show that the proposed route did pass through the edge of an orchard.</p> <p>5. Appeal and Error — Eminent Domain — Highways—-Damages—Evidence. — Where in a proceeding for -the alteration of a road, witnesses for the land-owners stated that the opening of the road • would injure the remainder of their lands, the petitioners were entitled to rebut this evidence by showing that no injury would result, and -the general statements by the witnesses, that the improvement would benefit the remainder of the land, cannot be regarded as prejudicial in view of the fact that the jury were told to exclude from consideration any enhancement or benefit to the land not taken by reason of the opening or use of the road.</p> <p>6. Appeal and Error — Highways—Eminent Domain — Damages— Question for Jury. — -Where in a proceeding for the alteration of. a road the evidence -of the landowners showed that the damages were in excess of the amount fixed by the jury, while the evidence of the petitioners showed that the damages were even less than those allowed, the question was for the jury, and it cannot be said that its finding was flagrantly against the evidence.</p> <p>7. Appeal and Error — Errors Claimed By Appellee Not Reviewable. —That part of a judgment making the county liable for costs in a road proceeding cannot be reviewed on appeal, where the county is an appellee and does not prosecute a cross appeal.</p>

<p>1. Taxation — Failure to Assess Land — Forfeitures and Penalties.— In an action under the provisions of article 111, chapter 108, Ky. Stats., for the forfeiture of titles to lands, for the non-assessment and non-payment of taxes, and the owners and claimants are unknown to the Commonwealth’s attorney, and 'the defendants to the action are designated as “unknown owners and claimants,” and the proper warning order and publication are made as required by the statute, supra,- the owner or claimant o.f a title to t-he lands, has a right to file answer and resist the forfeiture of kiis title or ciarán.</p> <p>2. Taxation — Falure to Assess Land — Forfeitures and Penalties.— In a proceeding under article 111, chapter 108, Ky. Stacs., for the forfeiture of title to lands because of the non-assessment and non-payment of taxes thereon, the court is not required to adjudicate upon the validity of the title of a claimant, nor is the Commonwelath’s attorney authorized to make an issue between the Commonwealth and a claimant as to the validity of the claimant’s title; nor will the court be required to adjudicate as between the titles of different claimants, until after a judgment of forfeiture has been rendered and counterclaims are filed by claimants desiring to redeem the titles forfeited, as provided by section 4076e, Ky. Stats.</p> <p>3. Taxation — Forfeitures and Penalties.- — In a proceeding under article 111, chapter 108, Ky. Stats., before a judgment of forfeiture is rendered, the only issues are between the Commonwealth and the owners or claimants of titles, and the issue relates, -alone, to the question, whether the titl-e or claim of an owner or claimant, is liable to forfeiture for tlie non-assessment and non-payment of the taxes.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>1. New Trial — Time for Application. — A motion for a new trial must be made at the term in which the verdict or decision is rendered and within three days thereafter unless unavoidably prevented, and this means three days after the entry of record of the verdict of the jury, or the decision of the court when the jury is waived and the law and facts submitted to the court; and does not mean three days after the rendition of the judgment upon the findings of fact either by a jury or "by the court.</p> <p>2. New Trial — Review.—In order to enable this court to review errors occurring at or during the trial, held by the court without the intervention of a jury, a motion for a new trial is necessary.</p> <p>3. New Trial — Time for Application. — The requirement of section 342 of the Code as to the time within which the motion for a new trial should be made is mandatory, and unless made within the required time the only question before this court on appeal is whether the pleading's sustain the judgment.</p> <p>4! Appeal and Error — New Trial. — Record examined and — Held that the motion for a new trial in this case was not made in time nor was defendant unavoidably prevented from doing so.'</p>

<p>1. Trial — Instructions.—Brevity in statement and clarity of expression should be employed in the drafting of instructions.</p> <p>2. Trial — Conduct of. — Courts should disregard such errors or mistakes as do not affect the substantial rights of the complaining party.</p> <p>3. Appeal and Error — Instructions.—Inaptness of statement is not a reversible error where the instructions given are substantially correct.</p> <p>4. Appeal and Error — Instructions.—Instructions if not prejudicial will not authorize a reversal unless so contrary to law and the evidence as to bring about an unjust verdict.</p>

<p>1. Wills — Limitation Over. — Where there is an absolute devise of the whole estate, a limitation over by way of remainder of the undisposed of estate, is void.</p> <p>2. Wills — Intention of Testator. — Testator’s intention as gathered from what is written in the will as an entirety, will control where the intention so gathered does not conflict with some positive rule of law.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>1. Criminal Law — Defendant Charged With Different Offenses— Election. — A defendant who is chargeable with several different acts any one of which, if proven, would sustain a conviction of the crime charged in the indictment, can be tried for only one of the acts at a time, though proof of other acts in corroboration of the act relied upon for a conviction may be heard, and the Commonwealth’s attorney should be required to elect which act he will rely upon for a conviction, and if he fails so to do the law makes the election for the Commonwealth of the act of which substantive evidence is first introduced.</p> <p>2. Criminal Law — Accomplices.—A child 13 years old who is under the domination of her father and who permits or acquiesces in the commission of a crime out of fear of her father and against her will, is not an accomplice of her father in the commission of the crime though she participated in it.</p> <p>3. Criminal Law — Confession.—A confession of the defendant made out of court is insufficient in the absence of other proof of the commission of the crime to sustain a conviction.</p> <p>4. Criminal • Law — Reasonable Doubt — Instructions.—In giving an instruction on reasonable doubt in criminal cases the trial court should follow closely the language of section 238, Criminal Code, and should not enlarge thereon by saying the law presumes the innocence of the defendant and that it is the duty of the jury, if it can reasonably do so, to reconcile all of the facts and circumstances of the case with that presumption, for this comes more properly in the argument of counsel.</p>

<p>Appeal from Warren Circuit Court.</p>

<p>1. Drains — Special Benefits. — Special benefits arising from the construction of a ditch for which a landowner may be assessed, as distinguished from general benefits for which he may not be assessed, are those which increase the value of the land, relieve it from a burden, or make it especially adapted to a purpose which enhances its value.</p> <p>2. Judgment — Drains—Conclusiveness—Matters Concluded. — "Where in the original proceeding it was finally adjudged that the establishment of a ditch was a benefit to plaintiff’s land, the judgment is res judicata as to that question in a subsequent áttack on an assessment to maintain the ditch, unless it be made to appear that since its establishment the ditch has been so changed or altered by official action taken pursuant to legislative authority that the original benefits no longer exist.</p>

<p>Appeal from Simpson Circuit Court.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>Appeal from Carter Circuit Court.</p>

<p>Appeal from Jessamine Circuit Court.</p>

<p>Appeal from Boone Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>Appeal from Kenton Circuit (Common Law and Equity Division).</p>

<p>1. Nuisance — Storing and Piping Oil. — The storage in tanks of crude petroleum and the piping, of same into tank cars for shipment by rail is not per se a nuisance, but the manner in which the business is conducted, its proximity to other buildings and the circumstances surrounding it, may be such as to render the same a nuisance.</p> <p>2. Nuisance — Noisome Odors. — A nuisance may be created where the air is so corrupted by noisome smells as to substantially interfere with the use and occupancy of one’s premises for residential purposes.</p> <p>3. Nuisance — 'Conduct of Business — Question for Jury. — Whether the conduct of a business is such as to create a nuisance is usually under the facts of the case one for the jury and not the court, the question being one not of negligence or no negligence but nuisance or no nuisance.</p> <p>4. Nuisance — Evidence—Introduction of Deed. — Where an issue was raised by the pleadings as to who was the owner of or operating a business alleged to create a nuisance it was error to overrule a motion to introduce in evidence a deed executed before the creation of the condition complained of whereby defendant conveyed the property involved to another who thereafter operated the plant.</p> <p>5. Nuisance — Anticipatory Loss by Fire. — The mere anticipatory loss by fire because of the possibility that an oil tank might be struck by lightning or fired by a spark from a locomotive does not form the basis upon which a legal recovery might be predicated under the facts presented in the instant record.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>1. Criminal Law — Continuance—Affidavits.—The court’s refusal to grant a continuance because of absent witnesses (where the affidavit incorporating the testimony of such witnesses is read to the jury) will not be disturbed on appeal, unless from 'all of the facts and circumstances appearing in the record there was a manifest abuse of discretion by the court in refusing the continuance, by reason of which the party applying did not obtain a fair and just trial.</p> <p>2. Bastards — Proceedings Under Bastardy Laws. — In bastardy proceedings instituted under our statute (sections 167-180 inclusive) it is competent to allow testimony showing the situation in life of the parties, which includes their financial standing, as well as their obligations because of dependents, all for the purpose of showing defendant’s ability to pay the amount which should be fixed for the support and nurture of the child.</p> <p>3. Bastards — Proceedings Under Bastardy Laws. — Whether it is competent to make profert of the child before the jury in the trial of such proceedings is not determined, since the record is not in condition to present the question; but it is held that it is not error for the child to be present in the court house with its mother during the trial in the absence of any effort to call the jury’s attention to it for the purpose of showing resemblance to the defendant on trial.</p> <p>4. Bastards' — Setting Aside Verdict. — Verdicts in bastardy proceedings, like those in other civil cases, to which class it belongs, will not be set aside unless palpably and flagrantly against the evidence.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>Wills — Construction.—Under a will by which testator directed that the residue of his property be divided equally between his brothers and sisters, naming them, “and the nieces and nephews of my brothers and sisters who are living at the date of my death, and my sister-in-law whose husbands are dead, viz., Dulcina Darnell and Lina Darnell, and Mary Jones, my deceased wife’s sister, who resides in Urbana, Illinois, and Oddie L. Power, my great-niece, all of whom mentioned are to share equally alike,” held that the words, “nieces and nephews of my brothers and sisters who are living at the date of my death,” include the children not only of the testator’s deceased brothers and sister, but of his living brothers and sisters, and therefore all the testator’s nieces and nephews.</p>

<p>1. Pleading — Inconsistent Pleas — Waiver.—Inconsistent pleas or statements must be taken advantage of by motion to elect (sec. 113, subsec. 4, Civil Code) and the adverse party waives objection thereto by responding to both pleas or statements without motion to elect. (Secs. 85 and 86, Civil Code.)</p> <p>2. Mines and Minerals — Lease—Contracts.—To complete a well as contemplated in a lease to drill for oil or gas within a fixed time means to drill a well within the time through the overlying strata and into the oil or gas bearing formations unless oil or gas in paying Quantities is sooner encountered.</p> <p>3. Mines and Minerals — Abandonment.—Where drilling on a well is abandoned before the shale which overlies the oil bearing sands, is penetrated and without finding oil or gas in paying Quantities the well is not completed as contemplated by the lease.</p> <p>4. Mines and Minerals — Abandonment—Forfeiture.—Where the lease provided for forfeiture if a well was not completed or stipulated rentals'paid within a fixed time, and the lessee began but did not complete a well or pay the rentals within the time, he abandoned and forfeited the lease, and the court did not err in declaring same void in an action instituted thereafter for that purpose by the lessors.</p>

<p>Appeal from Anderson Circuit Court.</p>

<p>Appeal from Payette Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>1. Officers — Public Officers — Removal for Cause — When Courts Will Interfere. — Where an officer has been appointed for a fixed term, subject to removal for cause, the sufficiency of the cause is a question of law for the courts, and where the cause alleged is legally insufficient the courts will take the necessary steps to prevent the removal of such officer or to set aside the removal and restore him to office.</p> <p>2. Officers — Public Officers — County Treasurer — Violation of Statutory Duty As Ground for Removal. — Where the legislature imposes on an officer a particular duty, and makes that duty so important as to provide a penalty for its non-performance, the courts do not feel at liberty to say that a failure to perform such duty is such a slight delinquency on the part of the officer as not to amount to a sufficient cause for his removal.</p>

<p>1. Reformation of Instruments — Deeds—Bona Fide Purchasers. — A deed will not be reformed on the ground of mistake in the quantity of land conveyed as against a subsequent purchaser for value without notice.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser — Constructive Notice. — Whére the land conveyed is located in the mountains, where the quantity of land is often' estimated and accurate surveys are not always made, the mere fact that the purchasers had the land surveyed, and the survey showed that a prior deed embraced a few more acres than the number stated in the description, was not sufficient to put them on inquiry to ascertain if there was a mistake in the deed.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>Forcible Entry and Detainer—Evidence.—Evidence examined and held to show a tenancy from month to month and as the tenant refused to surrender possession at the end of the month, forcible detainer proceedings were maintainable.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>1. Appeal and Error — Transcripts.—A party who obtains an appeal • from the circuit court to the Court of Appeals, must file a transcript of the record, in the clerk’s office of the latter court, twenty days before the second term of the latter court, thereafter, or ob- ' tain an extension of time in which to do so, as provided by section 738, Civil Code.</p> <p>2. Appeal and Error — Transcripts.—After the time has expired, within which an appellant, who has been granted an appeal by the circuit court, may perfect his appeal by filing a transcript of the record in the office of the clerk of the Court of Appeals, the latter court can not grant an extension of time, within which to file the transcript, as there is then no time to extend.</p> <p>3. Appeal and Error — Transcripts.—Where an appellant has in good faith, in due time, filed such a transcript of the record in the Court of Appeals, as he deems necessary for adjudication of his appeal, and the record is defective because of oversight of the clerk, who makes the transcript or inadvertence of counsel, or loss of a paper or other sufficient reason, he will .be permitted to file a supplementary record, for the purpose of making a complete record, after the time has expired within which the original transcript was required to be filed, if offer is made before submission.</p> <p>4. Appeal and Error — Transcripts.—If for any reason an appellant can not file the transcript of the record, in the office of the clerk of the Court of Appeals, within the time allowed by section 738, Civil Code, he should apply for an extension of the time, before it has expired.</p> <p>5. Appeal and Error — Transcripts.—An offer to file a transcript of the record, in the court of appeals, in the attempted perfection of an appeal granted by the circuit court, after the expiration of the time allowed by section 738, Civil Code, and after the extension of time, if any has been made, by authority of that section, has expired, will not prevent the dismissal of the appeal granted in the circuit court, where the appellee has made a motion to that effect.</p> <p>6. Appeal and Error — Transcripts—Dismissal.—The dismissal of an appeal granted by the circuit court, for failure to file a transcript of the record, in the Court of Appeals within the time allowed by section 738, Civil Code, will not prevent the party from obtaining an appeal from the clerk of the Court of Appeals, within two years from the rendition of the judgment.</p>

<p>1. Contracts — Inconsistent Contracts — Instructions.—On a trial where the issue is whether one party had authority to bind another in the execution of a contract, and there were .two contracts offered in evidence on the issue, and under the first he had the authority and under the second he had not, the court should have instructed the jury whether the latter contract terminated the former.</p> <p>2. Contracts — Agency.—If one having large contracts for ties to fulfill, enters into a contract with another wherein he agrees to pay the latter stipulated prices for ties which he puts out in his territory, and the first party is to receive a commission on each tie so furnished and is to supply the second party with the money to carry on his business, the second party is not thereby created the agent of first party so as to bind him in the execution of a contract for the sawing and production of a large number of ties.</p> <p>3. Contracts — Inconsistent Contracts — Termination.—When parties, sustaining at the time contractual relations with reference to a particular subject-matter, again enter into a new contract solely with reference to the same subject-matter, the terms of which are inconsistent with those of the original contract and the legal effect of which is essentially different, the first contract is terminated, although there be no express provision to that effect.</p> <p>4. Contracts — Evidence.—The correspondence between the parties and their actions under the first contract which had been terminated are incompetent evidence upon the issue whether the party had authority under the second contract.</p>

<p>Husband and Wife — Alienating Affections. — An action or cause of action for alienation of the affections of a spouse does not survive the death of the party injured or injuring.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>1. Criminal Law- — New Trial — Instructions.—Excepting errors committed in the rejection or admission of.evidence to which proper exceptions have been taken, as shown by the bill of exceptions, complaining party must include in its motion for a new trial any errors committed during the progress of .the trial upon which it intends to rely in this court, otherwise they cannot be considered on appeal, and except in the matter of instructions this court can not consider errors that appear for the first time in the motion for a new trial.</p> <p>2. False Pretenses — Indictment and Information — Obtaining Money Under False Pretenses. — An indictment which charges that the prosecuting witness has been induced to part with money because of false representations made to her by accused about the pend-ency of a secret lawsuit and that relying upon said representations as true she paid said money to accused is good on demurrer.</p> <p>3. False Pretenses — Obtaining Money Under False Pretenses. — The test under Ky. Stats., sec 1208, as to obtaining money by false pretenses is not limited to the inquiry of whether the means employed by accused must be calculated to deceive persons of ordinary prudence and discretion since the protection of the statute'was intended as well for the credulous, the careless, the ignorant and the helpless.</p> <p>4. False Pretenses — Obtaining Money Under False Pretenses. —Whether the false representations are such as are calculated to deceive one of the capacity and understanding, and in the situation of the prosecuting witness, ils a question of fact to be found by the jury.</p> <p>5. False Pretenses — Obtaining Money Under False Pretenses. — Where the evidence shows that one of the accused, with the knowledge and concurrence of the other, makes the false representations charged, the .conviction of both is warranted.</p>

<p>Appeal from Jefferspn Circuit Court (Common Pleas Branch, Fourth Division).</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Daviess Circuit -Court.</p>

<p>1. Trusts — Termination—Disposition of Property. — By an act of tbe General Assembly, a corporation, designated by tbe name of “Trustees of the Baptist Female College of Liberty Association,” was created with power in the trustees “to purchase or receive by donation, devise, or bequest, any lands, tenements, hereditaments, rents, goods and chattels, and to hold the same by the name aforesaid, to them and their successors forever,.for tbe use and benefit of said institution, and according to the intention of the donor or donors.” After the creation of the corporation certain donations were received for the purpose of purchasing land, erecting buildings thereon and building a school. While these donations came principally from Baptists, many of them were received, from members of other churches. The school failed and it became necessary to sell the property to pay its debts: Held, that the surplus proceeds, after paying the debts of the institution, did not belong to the liberty association or any of its churches.</p> <p>2. Statutes — Construction—When Resort May be Had to Statutes from Which Present Statute Was Derived. — In construing a statute whose language is plain and unambiguous, the courts will inquire no further, but if the matter is left in doubt and uncertainty, resort may be had to the original acts from which the statute was derived.</p> <p>3. Statutes — Colleges and Universities — Religious Societies! — Construction of Section 323, Kentucky Satutes. — Section 323, Kentucky Satutes, providing that “if any society holding land shall dissolve, title thereto, with its appurtenances, shall vest in the trustees of the county seminary, or in the county court for the benefit of the common schools,” construed in the light of its language and the prior statutes from which it was derived and held to apply only to religious societies, and not to a corporation holding land solely for the benefit of an educational institution.</p> <p>4. Trusts — Termination—Dissolution of Seminary — Disposition of Property. — Where donations of property are made to trustees to be held by them for the use and benefit of an educational institution, and according to the intention of the donors, and the trust fails, the surplus proceeds, after discharging the debts of the institution, revert to the original donors or their heirs.</p>

<p>Appeal from Letcher Circuit Court.'</p>

<p>Appeal from Pike Circuit Court.</p>

<p>1. -Wills — Limitation Over.' — A limitation over, after the grant of a fee simple estate is void.</p> <p>2. Wills — Restraint Upon Alienation. — After a devise of a feei simple estate, an attempt to restrain its alienation, during the entire life of the devisee is void.</p> <p>3. Wills — Presumption Against Intestacy. — The presumption against intestacy, partial or whole, is not indulged, nor can the rule which favors the vesting of estates be invoked, when overcome by the plainly expressed intent of a testator to do otherwise.</p> <p>4. Wills — Intention of Testator. — The character of an estate devised to a devisee, by a will must be determined by an ascertainment of the intention of the testator, which must be arrived at, by a con.sideration of the entire will, and effect must be given to every part of it, where it is possible to do so.</p> <p>5. Wills — Limitation Over. — A limitation over after a life estate is valid, and where a life tenant is granted the power to dispose of the property a valid limitation over may be made of any of the estate which may remain undisposed of at the death of the life tenant.</p>

<p>Appeal from Fulton Circuit Court.</p>

<p>Appeal from Allen Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Third Division).</p>

<p>1. Counties — Fiscal Management, Debt and Taxation — Power to Issue Bonds. — The limit of a bond issue under Ky. Const., sec. 157a, is determinable by tlie amount that can be raised by a levy of 20 cents on each $100.00 of th© assessed property valuation at the time of the issuance and sale of the bonds and not at the time a vote authorizing said issue is taken:</p> <p>2. Counties — Fiscal Management, Debt and Taxation — Power to Issue Bonds. — A vote in favor of a bond issue under Ky. Const., sec. 157a, does not of itself create an indebtedness as the debt is not incurred until the bonds are issued and sold, hence an election as io incurring indebtedness by the issue of bonds is -not invalid merely because at the time of the election the debt limit has been exceeded where same is not exceeded at the time the bonds are actually issued and sold.</p> <p>3 Counties — Issue of. Bonds for Road Purposes — Deferring Issu anee. — In an election held in May, 1916, the county was authorized to issue bonds to the amount of $90,000.00 for road purposes under Ky. Const., sec. 157a, but it was deemed expedient and advisable by the county officials at the time to issue only one-half of the amount authorized. More than four years after the vote was taken the county decided to issue additional bonds for road and bridge purposes under the previous election: Held, that the circumstances presented by the record were such that the county officers were justified in deferring the issuance of the additional bonds for period stated.</p>

<p>1. Sales — Conditional Sales. — Whether a transaction giving one, whose property is sold either by th© execution of a deed himself or at public sale, the right to repurchase the property within a stipulated time upon stipulated conditions, is to be construed as a mortgage or a conditional sale is one primarily to be governed by the intention of the parties as gathered from all the admissible evidence in the case, and the fact that the conveyance to the vendee, who agreed to the reconveyance which creates the defeasance, is absolute in terms will not affect the nature of the transaction, provided it be, as measured by the legal rules for 'interpreting such tí’ansactions, a security for the payment of money.</p> <p>2 Sales — Conditional Sales. — If the vendee in such a transaction is not a creditor of the vendor nor becomes' such at the time, nor agrees to become one in the future, so that the relation of debtor . and creditor does not exst between the parties, the transaction will be deemed a conditional sale and not a mortgage, and the same will be true notwithstanding the vendee holds a debt against the vendor if the transaction itself exinguishes that debt; neither Will a mortgage be created unless the rights of the parties, as well as their remedies, be mutual, i. e., if the vendor may treat the transaction as a mortgage and not as a conditional sale, likewise the vendee should have the same rights and the same remedies, for unless lie may sue and recover of the vendor the amount agreed to be paid for the reconveyance and enforce his lien therefor, there are no reciprocal rights, in which case the transaction will be deemed a conditional sale and not a mortgage.</p> <p>3. Sales — Conditional Sales. — Under the facts of this case, as .set out in the opinion, the transaction is held not to constitute a mortgage but only an option to repurchase which plaintiff could exercise or not at her pleasure.</p>

<p>1. Wills — Scintilla Rule — Mental Capacity.- — The scintilla rule prevails in will contest cases the same as in others and applies to the issue of mental capacity of the- testator as well as to other issues in such cases; but the quantum of testimony necessary to raise a scintilla of evidence must he such as to induce conviction and not consist in vague, uncertain and isolated acts and circumstances which are consistent with rationality, although they may be inconsistent with the usual normal course pursued by the generality of mankind. It is furthermore the trend of later opinions of this court, in applying the scintilla rule in will contests and in other cases, to discard the illogical practice of drawing a distinction between the quantum of "testimony necessary to create a scintilla of evidence and the quantum necessary to sustain a verdict as not being flagrantly against the evidence.</p> <p>2. Wills — Mental Capacity — Burden of Proof. — Where a will is rational and equitable upon its face the burden is upon the contestant to sustain the grounds of contest and in such cases non-expert witnesses may give their opinions concerning the- testator’s mental capacity, hut such opinions not based on sufficiently convincing facts to support' them will not authorize the- setting aside of the will, but where the facts .testified to by such witnesses are sufficient, when measured by common experience, to show a derangements of mind, thir opinions based upon such facts (as strengthened by the facts themselves) will authorize a submission of the issue to the jury and, unless overcome by sufficient testimony, will sustain a verdict setting aside the will.</p>

<p>1. j Wills — Sufficient Testamentary Character of Letter. — In a letter stating the wnitler did no(t expect to live long and that in the event she did not get to make a contemplated visit to town she wanted certain disposition made of her property, is of sufficient testamentary character as to authorize its probate as the last will of' the writer.</p> <p>2 Wills — Signature.—-The signature “Ant nanie” to a letter, construed as a will, is a sufficient signature of the writer’s name.</p> <p>3. Wills — Requisites and Validity. — No particular form is required for the disposition of property by will. The distinguishing feature of all testamentary documents is that the writing must appear to have been written animo testandi.</p> <p>4. Wills — Testamentary Capacity — Execution.—Ordinarily the only proper and necessary matters to be considered and determined in proceedings to probate a will are the testamentary capacity of the testator, the due execution of the will in accordance with statutory requirements and the presence or absence of fraud, mistake or undue influence.</p>

<p>Parties — Bringing in New Parties. — Where in an action, with the parties, who are before the court, a complete determination of the question involved can not be had without necessary parties being brought before the court, the court should require them to be made parties, or else dismiss the action without prejudice to another action.</p>

<p>1. Corporations — Sale of Property — When Purchasing Corporation Not Liable for Debts of Selling Corporation. — A corporation like a natural person may sell its assets and property and when it receives therefor its fair value in money or property the purchasing corporation will not, in the absence of contract obligation, be liable for the debts of the selling corporation.</p> <p>2. Corporations — Liability of Purchasing Corporation for Debts of Selling Corporation. — When a corporation sells its assets and property without consideration or to defraud its creditors or is merged into a new corporation or the^new corporation is merely a reorganization of the old one under a new name or the selling corporation is only paid for what it transfers by stock in the new corporation, the new one will be liable for the debts of the old one.</p> <p>3. Corporations — Liability of Purchasing Corporation for Debts of Selling Corporation.' — When a corporation doing business in this state has in the is'tate sufficient tangible property to pay its debts and it sells ail its property to a new corporation and takes in payment therefor stock in the new one the latter will he liable for the debts or liabilities' of the old whether in contract or tort or liquidated or unliquidated existing against the old corporation at the time of the sale although the old corporation may have in some other state property out of which its debts created in this state could be collected and retain its corporate existence, but merely for the purpose of winding np its affairs.</p>

<p>1. Wills — Life Estates — Intention of Testator.' — It is well settled that where a life estate has expressly been created by a will, the estate devised will not be deemed enlarged by a subsequent provision of the instrument, unless the language thereof is so explicit in statement and meaning as to clearly show that such was the intention of the testator.</p> <p>2. Wills — Limitation to Life Estate. — Where the devise is expressly limited to a mere life estate in the devisee named, the limitation to a life estate can not be affected by the failure of the will to devise the remainder, as in such event the estate upon the death of the life tenant will go, as in case -of intestacy, to the heirs of the testator entitled to take under the statute.</p> <p>3. Wills — Heir at Law — Right of — Intention of Testator — The heir at law does not take by the act or intention of the testator. His right is independent of the will, and to deprive him of it the language of the will must plainly manifest an intention on the part of the testator that he shall not take.</p> <p>4. Wills — Life Estates. — The language of a will declaring that the widow of the testator is given his entire real and personal estate: “to her and for her absolute use and benefit while she lives,” and making no disposition of the estate to take effect after her death, vests in her a life estate in the- property devised, which at her death will go to the testator’s heirs at-law.</p>

<p>1. Counties — Indebtedness for Road and Bridge Purposes. — While a tax for road purposes can not be levied under section 4307, Ky. Stats., until there is an indebtedness requiring the raising of revenue for such purposes, such indebtedness is incurred within the meaning of the statute when the fiscal court enters a proper order for the improvement or construction of public highways or ■ bridges in the county.</p> <p>2. Counties — Recovery of Sheriff of Money for Road Purposes.— Taxpayers can not recover of the sheriff money paid in as tax for road purposes where there is a good faith purpose evidenced by proper orders of the fiscal court to undertake the improvement or construction of public highways.</p> <p>3. Counties — Recovery of Money Paid as Tax for Road Purposes. — ■ That money raised by a tax levy for road purposes is not used on the roads in the year for which it was intended, does not entitle • the taxpayers to recover the same. If the road improvement or construction is unreasonably delayed a court of equity will, upon proper application, afford relief.</p>

<p>Appeal from Todd Circuit Court.</p>

<p>Appeals from Whitley Circuit Court. ■-</p>

<p>1. Railroads — -Crossings—Care to be Exercised at Crossings. — A railroad crossing a public and much frequented highway is obliged to. exercise ordinary care to' avoid injury to persons on such highway, and if the tracks of the railroad lay in a deep cut and are so obstructed that the motorman or enginer can not see the highway on either side of the track, nor the traveler on the highway see the approach of the train on the track until within a few feet thereof, the sounding of the usual signal for highway crossing by bell or whistle on the train is not sufficent, but the trainmen must employ such other means as will reasonably safeguard persons on the highway crossing from danger by collision with trains.</p> <p>2. Appeal and Error — Damages.—A verdict for general damages cam not. be disturbed by this court because it is too small.</p> <p>3. Highways — Negligence of Driver of Motor Vehicle — Guest Riding Therein. — The-negligence of the driver of an automobile is not ordinarily imputed to the guest riding therein.</p>

<p>Appeal from Warren Circuit Court.</p>

<p>1. Trial — Exclusion of Evidence from Consideration. — On the issue whether a machine was capable of doing the work for which it was purchased, evidence of the plaintiff that in his tests of the same it would not run successfully but that when the seller came he would do something to it and it would run again, did not authorize the court upon the mere inference drawn from this statement to take the case from the jury upon the idea that it showed the defect was not in the machinery but in, the improper operation of it.</p> <p>2. Trial — Statement of Issues. — Where a machine is sold for a special purpose, but consists of three separate parts: the chassis, containing the engine; a patented attachment; and plows, and the requirement of power in the engine was the essential thing involved in the purchase, the sale was one of an engine as.an entirety and not of separate parts thereof, and the total failure of the engine to furnish the power necessary to accomplish the purpose was a failure of the whole, and the court properly instructed the jury that if they found for the plaintiff to find the whole purchase price.</p> <p>3. Sales — Defense to Recovery of Purchase Price. — When, after tests an engine is shown to be worthless, or after discovery of a fraud in its sale the buyer offers to return the same within a reasonable time, there is a complete defense to the recovery of the purchase price; and if he has paid the purchase price under these conditions he is entitled to recover the same.</p>

<p>Appeal from Bussell Circuit Court.</p>

<p>1. Mines and Minerals — Grants and Reservations of Minerals. — -When the language employed in a deed conveying land to one grantee ánd the mineral to another, indicates that the one is to take only the surface with improvements and timber and the other all the mineral, this will include the oil and gas.</p> <p>2. Mines and Minerals — Enjoining Surface Owner. — The owner of the entire mineral estate may enjoin the surface owner from taking the oil and gas from the land.</p>

<p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>1. Master and Servant — Creation of Relationship. — When an employer retains and exercises the right to direct the manner in which the business shall be done, as well as the result to be accomplished under a contract, it creates the relationship of master and servant.</p> <p>2. Contracts — Ambiguity.—In the interpretation of ambiguous and uncertain contracts, which have been executed or partially executed, the courts will generally adopt that construction which the parties themselves in operating under the contract have given to it.</p> <p>3. Master and Servant — Creation of Relationship. — Plaintiff’s evidence analyzed, and when taken altogether is declared to have created tlie relationship of master and servant and not to have made him an independent contractor as claimed.</p>

<p>1. Vendor and Purchaser — Action for Fraud and Deceit. — A vendee of land, who has been induced to purchase it, by false representations as to the title, knowingly made by the vendor, with the intention to deceive- and to induce the purchase, and suffers injury thereby, may maintain an action for damages for the fraud and deceit, and in such action may recover all his actual damages.</p> <p>2. Vendor and Purchaser — Action for Fraud and Deceit — In an action brought by a vendee against the vendor for damages because of actual fraud practiced upon him by the vendor, in inducement of the sale, as false representations knowingly made with reference to the title, with the intention to deceive, and in reliance- upon which the purchase was made, the insolvency or non-residence of the- vendor does not have any effect.</p> <p>3. Vendor and Purchaser — Action for Fraud and Deceit. — Although ■ a vendee has received a deed, which contains covenants of warranty, covering the defects in the title complained of, he may maintain an action of deceit for the damages suffered by him, on account of an actual fraud perpetrated by the vendor upon him in inducing the purchase of the property.</p> <p>4. Vendor and Purchaser — Breach of Covenant. — If one relies upon the covenants in his deed, he must be confined to' such recovery as is permitted for a breach of such covenants, and the necessary facts must exist to sustain a cause of action for such breaches.</p>

<p>1. Auctions and Auctioneers — -Conduct and Validity of Sale. — An auctioneer is the agent of both parties to the sale, and a memor^ andum thereof signed by him at the proper time, if otherwise complete, is sufficient to charge both the vendor and purchaser under the statute of frauds.</p> <p>2. Auctions and Auctioneers' — Authority of Auctioneer. — Where an auctioneer has full authority to advertise the property and to make all the necessary arrangements for carrying the sale into effect, his authority to bind the. vendor does not end with the sale but extends beyond it, and until it is revoked he may properly bind the vendor by a memorandum signed within a -reasonable time, but he has no authority to bind the purchaser unless he signs the memorandum contemporaneously with,- or immediately after, the sale.</p> <p>3. Auctions and Auctioneers — Memorandum of Auctioneer. — An auctioneer’s memorandum of the sale of land., made on the next day after the sale, though binding on the vendor, is not binding on the purchaser unless he accepts the memorandum or otherwise assents to the sale.</p> <p>4. Auctions and Auctioneers — Memorandum of Auctioneer. — Where there was an issue as to whether the auctioneer selling land had properly made and signed a memorandum of the sale, the discovery of the auctioneer’s book containing the signed memorandum is such newly discovered evidence as required the court to grant a new trial therefor and it was error to overrule the motion based upon that ground.</p> <p>5. Contracts — Agreement to Release — Consideration.-—-A release or rescission of a duly executed contract for the sale of land must be supported by a valid consideration in order for the court to enforce the unexecuted releasing or rescinding contract. And if the agreement to release or rescind does not relieve the vendor of any obligations he assumed in the contract of sale-, nor confer any benefit upon him, it is unilateral and so far as the vendor is concerned it is without consideration and not binding upon him.</p>

<p>1. Gas — Companies Operating Under Franchise from City — Duty of Under Contract. — If a gas company or public service corporation is occupying the streets of a city under a franchise contract its duties and liabilities wiU be determined by the terms of the contract if -the contract contains provisions respecting its duties.</p> <p>2. Gas — Companies Operating Under Franchise from City — Implied ' Contract to Supply Gas. — Where a gas company obtained a franchise from a city to use its streets for the purpose of supplying its people with natural gas and the contract between the city and the gas company did not provide how much gas in quantity or pressure should ibe furnished to customers, the law will imply a contract on its part to exercise reasonable and practicable diligence and care to supply customers with a sufficient quantity and pressure of gas.</p> <p>3. Gas — 'Liability of Company to Consumer Under Implied Contract. —Where a gas company is' furnishing gas under a franchise from a city and there is no contract with the consumer or the city as to the quantity or pressure to be furnished the consumer may bring a suit against it on the implied contract it was under to perform the services for. which it sought and obtained the .franchise, and in such action may recover damages for loss suffered through its negligence and failure to fulfill its implied obligation.</p> <p>4. Gas — Duty and Liability to Consumer' Under Implied Contract.— Where a gas company furnishing natural gas for heating purposes under a franchise granted by a city fails to furnish the consumer with the requisite quantity or pressure of gas needed in his ' home or his business and injury or loss results therefrom the consumer may have an action against the company for damages.</p> <p>5. Gas — 'Duty and Liability of Company Under Implied Contract— Notice of Failure to Furnish Gas. — Where a gas company is under an implied duty to furnish gas to a consumer and it fails to fulfill its implied duty the gas company must have notice of the failure or it cannot be made liable in an action brought by the consumer to recover damages for loss sustained on account of failure.</p>

<p>1. 'Carriers — Action By Passenger for Injury — 'Instructions.—In a suit to recover damages by a passenger against a carrier for an injury inflicted by a jerk of the train or car, the plaintiff must both allege and prove, not only that the jerk was sudden, unusual and unnecessary, but in addition thereto that it was of such violence as to indicate negligence on the part of the carrier, and an instruction which does not embody all these, elements is improper.</p> <p>2. Appeal and '-Error — Instructions.—An error of the court in giving or refusing to give instructions, unless relied on in the motion and reasons for a new trial will on appeal be considered as waived.</p> <p>3. New Trial — Newly Discovered Evidence. — -A new trial will not ordinarily toe granted for newly discovered evidence, the only purpose of which is to contradict a witness who testified in the case; nor will a new trial be granted on that ground unless the party .moving therefor exercises due and proper diligence to discover and produce the testimony at the trial.</p> <p>4. New Trial — ¡Carriers—Knowledge of Agent.- — An -agent of a common carrier whose duty it was to investigate the -facts relating to an accident is a representative of the carrier and his knowledge concerning a statement made by a witness who testified upon the trial contrary thereto is the knowledge of the carrier, and a ne>w trial will not toe granted on the ground that defend ant’s attorneys discovered the existence of the contradictory statement after the trial, since the carrier is presumed to have 'had knowledge of it and should have produced it on the trial. f</p>

<p>1. Libel and Slander — Matters of Defense — Privilege—A letter containing matter of a defamatory nature, written by the president of a'school to the parent of a pupil in the school informing the parent why the student had been dismissed from the institution and relating the facts and circumstances under which he was dismissed, is a privileged communication, and neither the school nor the president of the institution is liable to the pupil in damages for libel, if the letter was written in good faith with the proper motive and based upon reasonable or probable cause.</p> <p>2. Libel and Slander — 'Privilege—Malice—Presumption.—A qualifiedly privileged communication is one where the circumstances are such as to preclude any presumption of malice, but if it affirmatively appear that the communicator was guilty of either falsehood or malice he is liable in damages.</p>

<p>1. Deeds — Construction.—While there is a distinction in the technical meaning of the words “reservation” and “exception” as used in deeds, no matter which word is used the deed will be given that meaning which it is manifest from the whole instrument was intended by the parties.</p> <p>2. Deeds — Reservation Defined.- — A reservation is a clause whereby the grantor reserves some new thing to himself out of that which he granted before, and an exception is the exclusion from the conveyance of- part of the thing granted which remains in the grantor toy virtue of his original title and is a thing in esse at the time.</p> <p>3. Deeds — Bond for Title. — The provisions of a title 'bond will be presumed to h-ave (been merged into a subsequent conveyance (between the same parties of the same land.</p> <p>4 Deeds — Construction—-Exception.—Where a vendor and a vendee are each the owner of a one-half undivided interest in land, and the vendor, in a conveyance to the vendee of his interest therein, “reserves from the aforesaid land all the minerals,” it is an exception out of the interest of the vendor of his one-half of the minerals and does not operate to divest -the vendee of his one-half undivided interest in the minerals theretofore owned by him.</p> <p>5. Deeds — Exceptions.—A grantor cannot except out of the operation of.his conveyance an interest in the land conveyed to which he has no title, and if he undertakes to do so the exception' will ■be void as to the excess over his existing interest.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Appeal from Johnson circuit Court.</p>

<p>1. Municipal Corporations — Elections—Notice.—That part of section 29, chapter 112, Acts 1920, which requires the: sheriff or other officer having charge of the election “to have the order published in some weekly or daily newspaper published or circulated in said county for at least two weeks before election, and also to advertise the same by printed or written hand bills posted in conspicuous places in said city for the same length of time” is mandatory and not merely directory and must be substantially complied with or the election will be void.</p> <p>2. Municipal Corporations — Elections—-Notice.—The special election must be advertised both by newspaper and by handbills for the time specified in the act to sustain the election.</p> <p>3. Injunction — Officers May be Enjoined Prom Doing Ministerial Act. — An officer, even a judge of a court, may be enjoined from doing a mere ministerial act in the performance of his duties, such as the entry of a copy of a certificate of an election, or result of an election on his order books.</p>

<p>1. Deeds — Conveyance Between Persons in 'Confidential Relation — ■ Agreement to 'Support — Valuable Consideration — Burden of Proof. —The law looks with suspicion upon transactions between persons sustaining confidential relations, and where a mother seventy-one years of age, having other children who have an equal claim on her bounty, conveys to her daughter and son-in-law, who live with 'her, her life estate in a farm and all her personal property, the iburden is on the grantees to show that the transaction was freely and voluntarily made, and devoid of any vice rendering it inequitable or unfair; and the agreement by the ig-rantees to support the grantor and pay her funeral expenses will not be regarded as a valuable consideration sufficient to relieve them of the burden of showing the fairness of the transaction, where the grantor’s estate was amply sufficient for all her wants, and she was in no way dependent on the grantees for support, and the grantees were the real beneficiaries of the arrangement.</p> <p>2. Deeds — Undue Influence — Sufficiency of Evidence. — -In a suit to ■set aside a deed on the ground of undue influence, evidence held to sustain a verdict for plaintiffs.</p>

<p>1. Licenses — Respecting Real Property — Incurring Expenses — Revocation. — Where a license is not a bare, naked right of entry, tout includes the right to erect structures and acquire an interest in the land in the nature of an easement, toy the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition, after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense; and this rule is particularly applicable to a telephone line constructed by a li-. eensee engaged in the business of serving the public and possessing the right to acquire property for that purpose by condemnation, and where such a line has been constructed under an oral license, the licensor cannot revoke the license and compel the removal of the line.</p> <p>2. Vendor and Purchaser — Title as Against Third Party — Licenses. —Where a vendee purchases property, over which a telephone line has been constructed, under a parol license from his vendor, and the telephone line is open and visible, he purchases subject to the right of the telephone company to maintain such line, and even if the owner had the right to revoke the license and require the removal of the structure, such right does not pass to the vendee.</p> <p>3. Vendor and Purchaser — Title as Against Third Party — Licenses —Estoppel.—Under such circumstances the telephone company’s right in the premises is limited to the maintenance of the telephone line as it existed at the time of the purchase, and the purchaser is,, not estopped to complain of the stringing of additional wires.</p>

<p>Appeal from Oldham Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p>

<p>1. False Pretenses — -Indictment and Information. — An indictment accusing the defendant of the offense of procuring money or property by fraudulent pretenses should specially aver the falsity of the pretenses alleged, it not being sufficient to aver only that the pretenses were false and known by the defendant to be so. The indictment should follow the rule required in indictments for perjury and false swearing in this respect.</p> <p>2. False Pretenses — Competency of Wife to Testify Against Husband. — The wife of the defendant in an indictment accusing him of obtaining money or property under false pretenses is a competent witness against him where the property obtained is that of the wife; and the .false pretenses were made while the husband was acting as agent for the wife, and consisted in misrepresenting the instructions which she had gvien him as her agent.</p>

<p>1. 'Counties — Elections—Proceedings Preliminary to Issue of Bonds. —In elections called and held under the provisions of section 157a of the Constitution, the election may be called at the first regular term of the court after the filing or lodging of the petition asking therefor with the county judge, and if filed on that day it is competent for the election to 'be called at that term; nor is it necessary to the validity of the election that the proposition voted on should receive two-thirds of the votes cast in that election, since a majority of the votes is .sufficient to carry the proposition. Neither is it necessary for such an election to be held on the regularly provided election day for the election of officers, since it may be held on any day fixed in the order calling •it if the requisite notice is given.</p> <p>2. Counties — Proceedings Preliminary to Issue of Bonds. — Orders made by the fiscal court after such an election, looking to the preparing, executing and selling of the bonds and to the custody, handling of, and expending the proceeds, are legislative in their nature and may be rescinded or modified at a subsequent term of the court.</p> <p>3. Counties — Duty of Fiscal Court in Sale of Bonds. — Under section 4307 of the statute it is the duty of the fiscal court to sell the bonds voted at such an election for not less than par and accrued interest and all of the proceeds arising therefrom must be used for the purposes for which the bonds were voted.</p> <p>4. Counties — Fiscal Courts — 'Powers of. — Fiscal courts possess only such power and authority as are expressly conferred upon .them (by law and such other powers by implication as are imperatively necessary in order to carry out their conferred express authority.</p> <p>5. Counties — Fiscal Courts — Sale of Bonds — Commissions.—Fiscal courts, therefore, ,by implication have the authority to employ brokers and pay them reasonable commissions to effect a sale of road bonds voted by the electors of the county pursuant to •the section of the Constitution referred to, after it has made unsuccessful bona fide efforts to, itself, make the sale; but even iin that case the fiscal courts possess no authority to contract or agree for the payment of a commission greater than is ordinarily and usually charged for similar services in transactions between individuals; and where the contract agrees to pay a commission of 5% on the gross amount realized, when the customary charge for similar services between individuals is far less than the compensation agreed upon, the execution of the contract will be enjoined in a proper action filed for the purpose.</p> <p>6. States — 'Limitation of Amount of Indebtedness or Expenditure.— (Section 49 of the Constitution forbids the General Assembly from .contracting debts, except for the purpose of meeting deficits ' or failures in the revenue, for which purposes debts direct or .contingent, singly or in the aggregate to the amount of $500,-000.00 may be contracted, but the moneys arising therefrom shall be applied only to the purpose or purposes for which they are obtained or to repay the debt or debts so contracted.</p> <p>7. States — Limitation of Amount of Indebtedness or Expenditure.— Section 50 of the same instrument forbids the contracting of any debt by the General Assembly, or it authorizing the contracting of any debt, except for the purposes stated in section 49, without making provision at the time for the collection of •an annual tax sufficient to pay the interest and to discharge the debt within thirty years, and that before the act shall take effect it shall be submitted to the people of the state at an election and receive a majority of the votes cast therein.</p> <p>8. States — Limitation of Amount of Indebtedness or Expenditure.— A debt within the meaning of the constitutional provisions, is any obligation to pay money on the part of the state at some fixed future time, or a time which may, become definite and fixed by act of either party and which act they expressly or impliedly agree to perform in the contract creating the debt; but the inhibitions of the constitutional provisions do not apply ' to, or include debts so contracted in anticipation of and which may be paid out of, the revenues of the state already levied or to be collected for the fiscal year in which the contract is made; nor to a debt so contracted to be paid out of revenue already in the treasury for the purpose; nor to a debt to be paid out of a ■special fund, provided such special fund is not and never becomes the property of the state; hut it is not competent for the legislature to indirectly evade the constitutional provisions under the latter rule, by providing that the debt shall be paid out of a specially designated fund insufficient at the time and which itself is a part of the revenues of the state and which is collected under the authority of the legislature to levy and collect taxes.</p> <p>9. States — Limitation of Amount of Indebtedness or Expenditure — ■ Loans by Counties.' — The loans or advancements by the various counties of the state to the Commonwealth under the provisions of section 11 of chapter 17, Acts 1920, page 76, constitute debts of the state within the meaning of the two sections of the Constitution referred to, and if such debts in the aggregate, together with other outstanding obligations of the state, may not be met or paid by anticipating the revenues of the state for the year or with money in the treasury available for road purposes, or out of any special fund, as above defined, they are prohibited iby said sections of the Constitution and are void.</p> <p>10. States — Aid .to Counties for Construction of Roads. — Section 157a of the Constitution did not in any manner repeal either section 49 or section 50 of that instrument so as to authorize the state to contract debts with the counties to an unlimited amount for the purpose, of constructing roads. The only effect of the newly adopted section was to permit the state to extend to the counties its credit for the construction of roads, but which credit was only such as the Constitution allowed and which it could not extend to the counties for that particular purpose (section 177, Constitution) before the adoption of section 157a.</p>

<p>1. Wills — Undue Influence. — On the issue of undue influence in a will contest, it is often necessary, in weighing evidence, to group together and draw conclusions from a multitude of apparently insignificant! things, but which when all considered together tend to show such influence.</p> <p>2. Wills — Undue Influence. — Evidence examined in a will contest and held to have been sufficient to submit to the jury the issue ot undue influence.</p>

<p>1. Life Estates — Liens.-—-A life tenant, who is required to remove an encumbrance secured by a lien from the estate to prevent its tsale, has a lien upon the entire property for recoupment.</p> <p>2. Life Estates — Repairs and Improvements.- — It is the duty of the life tenant to make all ordinary, reasonable and necessary repairs upon the property of the estate, and can not 'charge the remaindermen, personally, nor their interests in the property, with any part of the cost.</p> <p>3. Remainders — Sale of Interest. — A vested remainderman may sell his interest in the property, and pass a good title to the purchaser.</p> <p>4. Remainders — Sale of Interest. — A vested remainder, which is subject to a defeasance may be sold and a good title conveyed by deed to a purchaser, but, it will be subject to be defeated, if the event which creates the defeasance occurs.</p> <p>.5. Remainders — Contingent Remainder- — Sale of. — Any contingent remainder in real estate may he sold and conveyed, but, unless the dubious and uncertain event, upon which the vesting of the estate depends, occurs at the time, when according to the instrument creating the estate, it must occur, to cause the estate to vest, the purchaser will acquire nothing by* his purchase. N</p>