Volume 204 — Kentucky Reports

<p>1. Mines and Minerals — Meaning'of Lease to be Determined from all Provisions. — The meaning of a coal lease is to he determined from all of its provisions.</p> <p>2. Mines and Minerals — Lessor Held Entitled to Forfeit Lease for Nonpayment of Royalties. — Under coal lease providing for advance payment in lump sum on royalties and also providing that should the lessee default for 90 days in payment of royalties, or fail to pay the minimum royalty per year as provided therein “after the expiration of 'the two first years of this lease,” the lessor should have the right to cancel the lease, lessor held authorized to cancel within the two years for nonpayment of royalties to third person under whom lessor held.</p> <p>3. Mines and Minerals — Summons on Petition to Cancel Sufficient Notice of Election to Cancel Lease. — Summons on petition in suit to cancel a coal lease was sufficient notice of election by lessor to cancel lease.</p> <p>4. Bankruptcy — Lessor Under Coal Lease Had Right to Cancel After Filing of Petition in Bankruptcy by Lessee. — The filing of a petition in bankruptcy against lessee or sublessee in coal lease did not affect the right of lessor to cancel the lease for default in payment of royalties.</p> <p>5. Mines and Minerals — Rights Under Cancellation of Lease Not Waived. — That a corporate lessor of coal lands, to preserve its rights and without knowing effect of lessee’s bankruptcy, sent its claims for royalty, and for caring for the property, to one connected with the lessee, though it had canceled the lease and was then in possession, was not a waiver of its rights under such cancellation.</p> <p>6. Bankruptcy — -Bankruptcy Court Proper Forum for Assertion of Right to Cancel Lease to Bankrupt, but Upon Refusal to Act State Court May Determine Matter. — Ordinarily, the bankruptcy court is the proper forum for the assertion' of a right by the lessor in coal lease to cancel lease held by bankrupt, but such court having dismissed referee’s rule requiring lessor to show cause why possession should not be given to trustee, and held that the matter must be litigated in an independent action in the state court, the state court must determine the matter.</p> <p>7. Mines and Minerals — Mortgage on Property and Rights of Lessee Not Enforced where Lease Canceled. — Where coal lease is canceled, a mortgage against the property and rights of the lessee cannot be enforced as against the lessor.</p> <p>8. Mines and Minerals — -Agreement to Pay Certain Minimum Royalties Held Supported by Consideration. — -Where parties -to a coal lease were disputing whether a clause of the lease as to production of mines had been lived up to, and also about other matters an oral agreement to pay a royalty on a basis of 100,000 tons a year and at a certain rate, though that much coal had not been gotten out, was supported by a consideration.</p>

<p>1. Evidence — Contract Regarding Payment of Money in Consideration of Canceling of Contract to Purchase Could Not be Contradicted by Parol. — A writing, in unambiguous terms, stating that signers agreed to pay certain sum in consideration of canceling of contract to purchase sugar, could not be varied by parol to show that a refund was to be made, if seller could obtain cancellation of its contract to purchase from another.</p> <p>2. Evidence — Where Part of Contract Reduced to Writing, Residue May be Proved by Parol in Cases Stated. — Where agreement between parties is one and entire, and only part of it is reduced to writing, residue may be proved by parol evidence, if writing only purports to express part of contract or is expressed in such short and incomplete terms as to render parol evidence necessary to explain what is per se unintelligible.</p> <p>3. Contracts — Party to Contract Not Permitted to Say He Did Not Read it. — A party to a contract is not permitted to say that he did not read it when he signed it, or did not know what it contained, unless signature was obtained by fraud, actual or constructive.</p> <p>4. Evidence — All Parol Negotiations Merged in Writing. — All parol negotiations between parties were merged in writing, executed, delivered, and accepted at time as evidnce of contract between them.</p> <p>5. Reformation of Instruments — Instrument Not Reformed on Faith of Contemporaneous Oral Promise Not Kept. — Where there is no fraud or mistake in preparation of instrument, and parties signing understood its language and purport, it cannot be reformed on faith of contemporaneous oral promise which was not kept.</p> <p>6. Trial — If there is Any Evidence, Question for Jury. — If there is any evidence, question is for jury.</p> <p>7. Sales- — Contract for Sale Held to Call for Specific Sugar. — A sale of sugar, “in accordance with terms and conditions of contract with M. Co.,” held a sale of particular sugar bought from M. Co.</p> <p>8. Fraud — Knowledge of Falsity of Representation Essential. — In a common law action for deceit, a false representation may not be recovered for unless it is made with knowledge of its falsity, actual or constructive.</p> <p>9. Equity — Equity May Grant Relief for Fraud by Rescission, where Court of Law Powerless. — Equity may grant relief for false representation an<J rescind contract on equitable terms, where court of law is powerless to act, in that person making false representation believed it to be true.</p> <p>10. Evidence — ’Conversation Over Phone and Conversation Leading Up to it Held Admissible. — Where contract of sale was result of telephone communications by P. and B. in office of seller, what was said there over the phone by B. in the presence of P. as to sugar being ready for delivery was properly admitted in evidence, and previous conversation between B. and P. was competent as part of transaction and to make intelligible what was said over the phone; fraud in making such statement over phone being in issue.</p>

<p>1. Corporations — Liability of Wholesale Company Dependent on Agency of Salesman Selling Lamp to Person Injured on Elevator. —If head salesman of wholesale company, in taking plaintiff on elevator to show him a damaged lamp, was buying the lamp himself, and selling it to plaintiff on his own account, company was not liable for injuries to plaintiff on elevator; but-if he was selling lamp for company, though contrary to its instructions, it was ' liable for his negligence, if he was acting within apparent scope of his authority. ,</p> <p>2. Carriers — Negligence of Salesman in Operating Elevator, and Contributory Negligence, Held for Jury. — In action against wholesale house for injuries received by plaintiff, when he thought he was stepping into an elevator operated by defendant’s salesman, negligence of defendant’s agent, and plaintiff’s contributory negligence, held for jury.</p> <p>3. Appeal and Error — No Complaint of General Instruction on Contributory Negligence, where Specific Instruction Not Requested. Defendant cannot complain that instruction on contributory negligence was too general, where no request, for a more specific one was made.</p> <p>4. Trial — Not Incumbent on Court to Give all Law of Case. — It is not incumbent on court to give all law of case, but parties must ask further instructions when they desire them.</p> <p>5. Trial — All Instructions to be Read Together. — All instructions given are to be read together.</p>

<p>1. Ejectment — Plaintiffs Must Prove Title in Themselves. — Plaintiffs in ejectment must establish their right to complain of defendants’ possession by first proving title in themselves.</p> <p>2. Dower — In Absence of Election. Widow Presumed to have Elected to Take Estate Most Beneficial to Her. — Widow could not take both dower and homestead, and in absence of election it is presumed, after lapse of reasonable length of time, that she elected to take homestead when most beneficial to her, especially where she took possession oí and conveyed entire property.</p> <p>3. Homestead — Sale of Homestead by Widow, Though Passing no Title, Constituted Abandonment. — Fee simple deed by widow having homestead in land, while passing no title to the grantee, constituted abandonment by her of homestead.</p> <p>4. Adverse Possession — Owners of Fee, on Abandonment by Widow'of Homestead, were Entitled to Immediate Possession, and Widow’s Grantee Held Adversely. — Where widow abandoned' and forfeited her homestead in land by conveying it in fee, owners of fee were entitled to immediate possession, so that grantee and those claim ing under him became adverse holders from time of taking possession; the instrument of itself being sufficient to show nature and extent of possession.</p> <p>5. Limitation of Actions — Where Some Owners in Fee were Sui Juris, Statute Kan as to All. — Where, on abandonment of homestead by widow by sale of land in fee, some of her children or grandchildren, then entitled to immediate possession, were sui juris, statute of limitations then began to run against all, though some were infants and some under disability of coverture.</p>

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

<p>1. Indictment and Information — Indictment in Homicide Case Held Not Multiplicious. — Indictment for murder was not multiplicious because its several counts charged each defendant with commission of crime, and others with aiding and abetting.</p> <p>2. Homicide — Evidence Held to Warrant Conviction of Manslaughter. —In prosecution of one of several participating in fight with deceased, in which some one shot deceased, evidence held to warrant conviction of manslaughter.</p>

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

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

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

<p>1. Criminal Law — Searches and Seizures' — One Cannot Complain of Search of Premises Not in His Possession. — Defendant may not complain of illegal search of premises not his own or in his possession, nor introduction against him of evidence thus disclosed, if otherwise competent.</p> <p>2. Intoxicating Liquors — Evidence Held Insufficient to Warrant Conviction for Operating Illicit Still. — Evidence held insufficient to sustain conviction for operating illicit still found on property' of defendant’s mother of which he did not have possession.</p>

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

<p>1. Criminal Law — Court Need Not Instruct Specifically on Question of Alibi. — Court need not instruct specifically on question of alibi.</p> <p>2. Homicide — Guilt of Defendant Held for Jury.- — Guilt of murder held for jury, though there was evidence defendant was not at place of killing.</p> <p>3. Criminal Law — No Complaint can be Made of Evidence to which no Objection was Made. — No complaint can be made on appeal as to evidence, where no objection was made to it at time it was offered.</p> <p>4. . Witnesses — Competent for Commonwealth to Prove Defendant had been Convicted of Felony. — It was competent for Commonwealth to prove that appellant had been convicted of felony, and defendant could not complain where he testified as witness that he had been in penitentiary.</p> <p>5. Criminal Law — Statement Made in Presence of Accused as to Threat by Him Held Admissible. — In homicide case, deceased’s wife was properly allowed to testify that her daughter, on day before kill ing, had in presence of accused and deceased said, “V. (defendant) said, if Pappy didn’t drink it, he was going to shoot him.”</p> <p>6. Homicide — Presumption is that Dying . Statement Signed by Deceased had been Read Over to Him. — It will be presumed that dying statement signed by deceased had been read over to him or that he knew its contents.</p> <p>7. Witnesses — Contradiction of Witness Not Permitted Without Grounds Having Been Laid. — Court properly sustained Commonwealth’s objection, when witness for defendant undertook to contradict witness for Commonwealth, without grounds for contradiction having been laid.</p> <p>8. . Criminal Law — Court Properly Sustained Objection to Mere Conclusion -of Witness. — Court properly sustained objection to answer which was mere conclusion of witness.</p> <p>9. Criminal Law — Court Instructing in Defendant’s Absence, his Counsel Could Waive Reinstruction in His Presence. — Where during recess accused was remanded to jail, and after recess court read instructions and attorneys began argument before it was discovered accused was not in court, and he was then brought into court, accused’s counsel could then in accused’s presence waive reinstruction to jury; no constitutional right being thereby waived.</p> <p>10. Homicide — Evidence Held to Warrant Conviction of Murder. — Evidence held sufficient to sustain conviction of murder.</p>

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

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

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

<p>1. Criminal Law — Complaint as to Instructions Not Considered in Absence of Objections or Exceptions. — Accused cannot complain that jury was misinstructed, where record does not show any objections or exceptions to instructions given.</p> <p>2. Criminal Law — Evidence of Other Offenses Incompetent. — Proof of a similar offense by defendant on occasion prior to violation of liquor law for wbicb he was tried is improper.</p> <p>3. Criminal Law — Testimony Held Not to Show Other Offense. — Answer of witness, when asked if he had bought whiskey from defendant, that defendant had told him where liquor could be obtained, and went with him to get it, did not constitute evidence of another offense; defendant’s conduct not being denounced anywhere in statute.</p> <p>4. Indictment and Information — Stating More than One Offense Subjects Warrant to Demurrer. — Under Criminal Code of Practice, section 165, subsection 3, stating of more than one offense in criminal warrant subjects it to demurrer.</p> <p>5. Indictment and Information — Warrant Charging Sale, Manufacture, Transportation, and Possession of Intoxicating Liquors Held Duplicitous, and Court should have Required Election. — A warrant charging sale, manufacture, transportation, and possession of intoxicating liquors was duplicitous, and court erred in overruling demurrer and in not requiring Commonwealth to elect, in view of Criminal Code of Practice, section 165, subsection 3.</p>

<p>1. Criminal Law — Evidence Obtained Through Invalid'Search Warrant Issued by United States Commissioner is Incompetent. — Evidence of unlawful possession of intoxicating liquors obtained by federal prohibition officers under search warrant issued by United States commissioner was incompetent if warrant and affidavit'did not comply with Constitution, section 10.</p> <p>2. Searches and Seizures — Probable Cause for Issuing Search Warrant Must be Made to Appear to Officer Issuing it from Oath of Applicant. — “Probable cause” for issuing of search warrant, required by Constitution, section 10, must be made to appear to officer issuing it from oath of affiant applying therefor, and if that oath does not state facts sufficient to create probable cause, issuance is unauthorized.</p> <p>3. Searches and Seizures — Affdavits on Information and Belief are Insufficient to Support Search Warrant. — Under Constitution, section 10, it is insufficient for affiant applying for search warrant to state his “information and belief” of existence of facts sought to be discovered by warrant, but it must be supported by statement of facts sufficient to create probable cause to officer called upon to issue warrant.</p> <p>4. Intoxicating Liquors — Affidavit for Search Warrant Held Insufficient. — Affidavit that affiant “has’personally seen persons coining therefrom (the place to be searched) today in different states of intoxication,” couched in printed language contained in sterotyped form of affidavit, held insufficient to warrant issuance of search warrant, in view of Constitution, section 10.</p>

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

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

<p>1. Nuisance — Rule to .Show Cause Why Punishment for Contempt should Not be Adjudged for Violation of Judgment Must be Based on Affidavit. — Rule to show cause why defendants should not comply with judgment restraining them from occupying residence to gether as man and wife when not married, and why punishment for contempt should not be adjudged, must be based on affidavit showing violation of injunction, under Ky. Stats., section 3941m, and rule is not validated by subsequent affidavit.</p> <p>2. Contempt — Procedure Provided by Statute Must be Followed in Punishing. — Whenever power to summarily punish for contempt in given class of cases is given by statute, and that statute prescribes procedure which must be had before that power is exercised, there must always be strict compliance with statutory method prescribed.</p>

<p>1. Rape — Instruction Authorizing Punishment for Lesser Offense than that Shown Not Erroneous, When Following Indictment. — Where indictment merely charged carnal knowledge of female under eighteen years of age, and on trial evidence disclosed prosecuting witness was less than sixteen years of age, court did not err in charging in language of indictment, and only authorizing punishment prescribed for carnal knowledge of girl between 16 and IS by Ky. Stats., section 1155, as amended by Acts 1922, c. 17, in view of Criminal Code of Practice, section 265.</p> <p>2. Rape — Witnesses—That Prosecutrix in Statutory Rape Case had Communicable Disease was Not Competent to Show Character, or as Affecting Credibility. — In prosecution for statutory rape, under Ky. Stats., section 1155, as amended by Acts 1922, c. 17, court did not err in denying testimony that blood test showed prosecuting witness, had communicable disease, but showed negative result as to defendant; chastity of prosecuting witness not being involved, and existence of disease not affecting credibility of prosecutrix.</p> <p>3. Witnesses — Inconsistent Statements, or Bad General Reputation for Truth and Veracity, Must foe Shown, or Testimony Contradicted, to Impeach Witness. — If it is desired to impeach testimony of a witness, it must he done either foy contradicting his evidence, showing he has made different or inconsistent statements, or that his general reputation for truth and veracity is had.</p>

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

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

<p>1. Intoxicating Liquors — Affidavit for Search Warrant Held Insufficient. — Affidavit for search warrant for search of buggy held insufficient, containing no statement as to when liquor was transported, though stating generally that wherever defendant went with his buggy men became drunk.</p> <p>2. Intoxicating Liquors — Search Warrant Invalid Unless Supported by Sufficient Affidavit. — Where facts set forth in affidavit are not sufficient to warrant issuance of search warrant a warrant issued under it is invalid.</p> <p>3. Criminal Law — Evidence Obtained Under Invalid Search Warrant Incompetent. — Evidence obtained under invalid search warrant is incompetent, and will be rejected upon motion.</p>

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

<p>1. Taxation — Valuation of Land by Circuit Court Based on Evidence as to Pacts Not Disturbed. — Valuation placed by circuit court upon land on appeal from valuation by board of supervisors held not to be disturbed, under evidence presenting question of fact.</p> <p>2. Taxation — Neither Board of Supervisors nor Commonwealth Liable for Costs though Valuation of Board Reduced on Appeal. — Though landowner appealing from judgment affirming findings, as to value of land, or board of supervisors, obtained a considerable reduction, neither board nor state government, of which it is an arm, was liable for costs, in view of Ky. Stats., section 885, there being no charge of bad faith, but costs incurred by board or Commonwealth should not be charged against landowner.</p> <p>% Taxation — Wrongful Taxing of Costs Against Landowner on Appeal from Valuation of Land Held Curable Without Reversal.— Wrongful taxing of costs of Commonwealth or board of supervisors against landowner securing considerable reduction in valuation of land on appeal to circuit court does not require a reversal, but circuit court will be directed to correct judgment.</p>

<p>1. Appeal and Error — Party, Asking that Deed be Declared Mortgage, Cannot Complain of Action of Court in so Declaring. — Defendant in ejectment, asking that deed be declared a mortgage, cannot complain of action of court declaring deed to be mortgage.</p> <p>2. Trial — Court Properly Transferred Cause to Equity, when Cancellation of Instrument Asked by Defendant. — Where defendant in ejectment in set-off and counterclaim pleaded insanity and sought to have deed canceled, action was properly transferred to equity.</p> <p>3. Pleading — Court did Not Abuse its Discretion in Permitting Amended Petition Seeking Enforcement of Mortgage in Ejectment Action. — In ejectment where defendant in set-off and counterclaim pleaded insanity, and sought to have deed1 to plaintiff canceled or declared mortgage, court did not abuse its discretion in permitting filing of amended petition seeking enforcement of mortgage, in view of Civil Code of Practice, section 8.</p> <p>4. Continuance — Court Heidi Not to have Erred in Refusing Continuance After Plaintiff Completed Proof. — Where in ejectment interlocutory judgment declared plaintiff’s deed a mortgage and he filed amended petition not alleging specifically whether enforcement of mortgage or interlocutory judgment was sought, refusal of continuance after plaintiff had cpmpleted proof, on theory that until then defendant did not know what his defense would be, held not prejudicial error.</p> <p>5. Pleading' — Defense in Original Answer, when Denied, Need Not be Again Denied when Set up in Amended Answer. — Plaintiff, having denied defense of insanity affirmatively pleaded' in original answer, was not required to again deny same defense set up in amended answer.</p> <p>6. Insane Person — Adjudication of Insanity Only Prima Facie Evidence of that 'Condition at Subsequent Time. — Adjudication of insanity is conclusive evidence of insanity existing at time of adjudication, but is only prima facie evidence of that condition existing at time of execution of subsequent conveyance.</p>

<p>1. Criminal Law — Competency of Testimony Given Without Objection and Repeated on Cross-Examination Not Reviewed. — Where witnesses drinking home-brew testified, without objection,-that it was intoxicating, and were made to repeat the statement on cross-examination, competency of the evidence could not be questioned on appeal.</p> <p>2. Criminal Law — Evidence Held Sufficient to Take Question of Intoxicating Character of Home-Brew to Jury. — Testimony of several witnesses who drank home-brew that it was intoxicating was sufficient to carry .question of intoxicating character to jury.</p> <p>3. Criminal Law — Failure of Instruction to Give Date of Indictment or Fix Date of Sale of Intoxicating Liquor Not Prejudicial.— Instruction permitting conviction for sale of intoxicating liquor within twelve months preceding indictment, without giving date of indictment or otherwise fixing date of sale, could' not have been prejudicial, where indictment was read to jury, and it and evidence showed that sale was made within twelve months next •before indictment, and defense was denial of sale.</p>

<p>Guaranty — Landlord Held to Guarantee Payment of Notes Absolutely. — Papers executed by landlord simultaneously witb notes executed by ténants to plaintiffs, “I promise to see that tbis note ... is paid, tbe amount to be deducted from their share of tbe 1920 tobacco crop when sold,” held absolute and not mere qualified guaranties.</p>