By paragraph 2 defendant pleaded that at | factory, or place of business in the state of the time the contract was made plaintiff, by Kentucky; and that the orders for the two its authorized agent, entered into a collateral blowers purchased by defendant were obagreement, by which plaintiff contracted to tained by its traveling salesman, and were send a competent person to make the neces- approved by plaintiff at its office in Missouri. sary connections for the machinery, and the It further pleads that section 571 of the plaintiff failed to send a man for that pur- Kentucky Statutes has no application to the pose, although defendant notified plaintiff business done by plaintiff, but that, if it does, that it was ready to make the connections it is in violation of the commerce clause of and that a man be sent. the federal Constitution. Defendant's demurrer to the reply was overruled, and, having declined to plead further, judgment was rendered in favor of plaintiff. By paragraph 3 defendant pleaded that plaintiff was a corporation organized under the laws of the state of Missouri, and was not a foreign insurance company, and was engaged in doing business in this state, and at the time of the execution of the contract sued on it had not complied with section 571 of the Kentucky Statutes, requiring every corporation but foreign insurance companies carrying on business in this state to file in the office of the secretary of state a statement signed by its president or secretary, giving the location of its offices in the state of Kentucky and the name or names of its agents thereat upon whom process might be served, and making it unlawful for such corporation to do business in this state until such statement has been filed, and that the contract sued on was null and void. Plaintiff's demurrer to the first and second paragraphs of the answer was sustained, but overruled as to the third paragraph. Subsequently defendant filed an amended and supplemental answer, pleading, in substance, that since the filing of its original answer defendant had offered to have the connections made, provided plaintiff would send a competent man to help defendant make such connections, and, if such agent should succeed in making the connection, defendant would keep the system and pay the purchase price therefor and waive the defenses made in its answer. The plaintiff agreed to have a competent man come to Louisville to make the connection, and, relying upon this promise, defendant expended $48, but plaintiff failed to comply with its agreement. The pleading concludes with a prayer to the effect that the petition be dismissed, and that defendant recover on its counterclaim the sum of $48. To the amended and supplemental answer plaintiff interposed a demurrer, which was sustained. To the third paragraph of defendant's original answer plaintiff filed a reply, denying the plaintiff carried on business in the state of Kentucky, and pleading affirmatively that plaintiff was a Missouri corporation engaged in interstate commerce; that its method of doing business was through traveling agents sent into the state of Kentucky and other states to solicit orders for the blowers system on a commission basis; that these orders were submitted to plaintiff for its approval in St. Louis, and, when accepted by plaintiff, the orders were filled by shipping the blowers to the [1] The first question presented is the propriety of the trial court's action in sustaining the demurrer to the first paragraph of defendant's answer. This is not a case where the article sold was, without qualification, to be satisfactory to the purchaser. It is unnecessary, therefore, to determine whether the case is one where the purchaser must act reasonably. To determine the question of satisfaction, the contract plainly provides for a trial by the purchaser. The case is one where the purchaser must act in good faith. He should make the test required by the contract, and, after fairly and candidly investigating and considering the matter, reach a genuine conclusion. To permit the purchaser to rely on tests made by others similarly situated would not only do violence to the terms of the contract, but would inject into the case elements of confusion and uncertainty which the parties did not contemplate. Dissatisfaction with the blower system by others might be due to caprice, or to improper installation or operation, and all these questions would have to be taken into consideration in determining whether or not another purchaser was justified in refusing to pay for the articles because he had found them unsatisfactory. As before stated, the satisfaction or dissatisfaction referred to in the contract is that based on an actual trial made by the purchaser. As he must comply with his contract, and therefore act honestly in the matter of making the test himself, he cannot rely on the dissatisfaction of others similarly situated to escape the obligation which he voluntarily incurred. Water Heater Co. v. Mansfield, 48 Vt. 378; Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851, 130 Am. St. Rep. 382, 18 L. R. A. (N. S.) 741; Thaler v. Greisser Const. Co., 229 Pa. 512, 79 Atl. 149, 33 L. R. A. (N. S.) 345; 6 R. C. L. § 333, p. 952. Nor does the fact that the test would have involved expense affect the case, since that is an element which should have been considered before the contract was entered into. Having received the machinery, and having failed to make the trial required by the contract within the time specified therein, defendant is liable for the purchase price, unless the other defenses interposed are sufficient to defeat a recovery. Kenney Co. v. Anderson, S. W. 749. In v. Russell Co., 148 Ky. 490, 146 S. W. 1103. | tions are not criminally liable under that sec[2] The court did not err in sustaining a tion for engaging in interstate transactions demurrer to the second paragraph of defend- without complying with its provision. Comant's answer, for the reason that there was monwealth v. Hogan, 74 S. W. 737, 25 Ky. no allegation that the collateral parol agree- Law Rep. 41; Ryman Steamboat Line v. ment relied on, which varied the terms of Commonwealth, 125 Ky. 253, 101 S. W. 403, the written contract, was omitted, therefrom 10 L. R. A. (N. S.) 1187, 30 Ky. Law Rep. by fraud or mistake. Castleman-Blakemore 1276; Commonwealth v. Eclipse Hay Press Co. v. Pickrell & Craig Co., 163 Ky. 750, 174 Co., 104 S. W. 224, 31 Ky. Law Rep. 824; Commonwealth v. Baldwin, 96 S. W. 914, 29 [3] The next question presented is the pro- Ky. Law Rep. 1074; Three States Buggy Co. priety of the court's action in sustaining av. Commonwealth, 105 S. W. 971, 32 Ky. Law demurrer to the amended and supplemental Rep. 385. The ruling of the United States answer. This pleading sets up a defense Supreme Court is to the same effect. which it is alleged occurred after the filing the recent case of Sioux Remedy Co. v. Cope, of the original answer. The basis of the de- 235 U. S. 197, 35 Sup. Ct. 57, 59 L. Ed. 193, fense is the offer of the defendant to install the United States Supreme Court held the the machinery if plaintiff would send a com- requirement that a foreign corporation appetent man to assist in the work, the agree-point a resident agent on whom process may ment of the defendant to withdraw its de- be served in the action against it, as a condifenses, and the agreement on the part of plaintiff to send a competent man, which it failed to do. We find however, that though the two promises are set out in the pleading, the pleader is very careful to avoid alleging that the plaintiff's promise was made in consideration of the defendant's agreement to withdraw its defenses; in other words, the pleading fails to allege any consideration whatever for the promise. As plaintiff's rights under its contract had accrued at the time of the filing of the amended and supplemental answer, and plaintiff was therefore entitled to recover, the promise made by plaintiff to send a man to install the machinery was without consideration, and could not be enforced. It follows that the demurrer to the amended and supplemental answer was properly sustained. [4, 5] The last question presented is whether or not the failure of plaintiff to comply with section 571 of the Kentucky Statutes prevents a recovery. That the plaintiff is engaged in, and that the transaction out of which this action grows is one of, interstate commerce, there can be no doubt. The reply shows that the plaintiff is a Missouri corporation. It sells its blowers in the various states by means of traveling agents, who receive a commission on the sales made. The agent takes the order, the order is transmitted to the company for its approval and, when approved, the machinery is shipped to the purchaser. The mere fact that the agent inspects and measures the building and the place where the machinery is to be installed in no wise affects the character of the transaction. We have held that section 571 is void as to foreign corporations engaged strictly in interstate commerce, and that such corpora tion precedent to suing in the courts of the Inasmuch as we have held that noncompliance with section 571 prevents a corporation from recovering on a contract made in carrying on its business in this state (Oliver v. Louisville Realty Co., 156 Ky. 628, 161 S. W. 570, 51 L. R. A. [N. S.] 293, Ann. Cas. 1915C, 565), the effect of our construction of the statute is equally as burdensome on interstate commerce as the construction given by the Supreme Court of Dakota to the statute of that state referred to in the above opinion. It follows that section 571 of the Kentucky Statutes is inoperative as to interstate commerce transactions, and therefore does not prevent a recovery by plaintiff. In view of the questions presented, the appeal is granted, and an opinion written. Judgment affirmed. VOGT v. CITY OF OAKDALE. (Court of Appeals of Kentucky. Nov. 18, 1915.) 1. MUNICIPAL CORPORATIONS 407-PUBLIC IMPROVEMENTS-ASSESSMENTS-TAX." A local assessment on property specially benefited by a local improvement for the cost thereof is but a charge for the improvement, and is not a tax within Const. §§ 157, 171, limiting the tax rate and requiring uniformity of taxes on all property within the same territorial limit. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1003, 1004; Dec. Dig. 407. For other definitions, see Words and Phrases, First and Second Series, Tax.] 2. CONSTITUTIONAL LAW 290-MUNICIPAL CORPORATIONS 407 DUE PROCESS OF LAW-LOCAL ASSESSMENTS. 200 feet, but appellant's lot, which was a corner, fronted 50 feet on Grand boulevard, and extended back 200 feet on Kenton street. It will thus be seen that upon the front-foot basis she will have to pay four times as much for the street improvement on Kenton street as the other lot owners on that street, excluding the corners, although the square foot area of her lot is no greater. She complains: (1) That the statute which provides for street construction on the front-foot basis is in violation of the fourteenth amendment to the United States Constitution, because it amounts to taking of property without due process of law, and because it is a tax assessment upon her property made without considering equality of burden as between the owners of similar property; (2) that it is in violation of section 171 of the Kentucky Constitution, requiring uniformity of taxes upon all property within the same territorial limit; (3) that it is in violation of section 157 of the Kentucky Constitution, because city taxation is increased beyond the limit therein authorized. Upon these grounds she instituted an action in equity to enjoin the Ky. St. § 3643, provides that the cost of any street improvement shall be assessed equally on the front feet of the abutting property not to exceed 50 per cent. of the value of the ground after making of the improvement, excluding the value of buildings and other improvements. Plaintiff owned a corner lot fronting 200 feet on the street improved and 50 feet on another The other lots on the street improved had a frontage of 50 feet and a depth of 200 feet. Held, that though plaintiff's lot had a depth of only 50 feet on the street improved, a frontage assessment was not a taking of prop-city and its officers from constructing Kenton erty without due process of law. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 871-875; Dec. Dig. 290; Municipal Corporations, Cent. Dig. §§ 1003, 1004; Dec. Dig. 407.] Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. Action by Ella Vogt against the City of Oakdale. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed. W. S. Sanford, of Louisville, for appellant. Chapeze & Crawford, of Louisville, for appellee. NUNN, J. Oakdale is a city of the fifth class. By an ordinance duly adopted it provided for the construction of a carriageway 30 feet wide on Kenton street, and, after advertising for bids, let the contract therefor according to the plans and specifications. The ordinance was passed and the street improvement attempted under the act of 1912, which is now section 3643 of the Kentucky Statutes. Under authority of the statute the ordinance provided that: feet "Said work shall be done at the cost of the owners of the ground fronting and abutting upon said street according to the number of front owned by each of them respectively. * *That the portion of said work charged to and assessed against the property owners shall be paid for on the ten year bond plan as provided for in the act of the General Assembly 1912." Under the statute the charge against an abutting property owner"shall not exceed fifty per centum of the value of the ground after such improvement is made, excluding the value of the. buildings and other improvements upon the property so improved." [1] Except at the corners, the lots on Kenton street fronted 50 feet and extended back street at the expense of the abutting property owners, and from issuing or selling bonds to pay therefor. The lower court sustained demurrer to her petition, and she appeals. In our opinion the facts alleged do not entitle her to the relief prayed for, nor do they raise any of the questions above set forth. No averment is made as to the value of her, or other, property on Kenton street. There is no claim of spoliation; no claim of an expense in excess of the benefits to be received; no claim for an expense in excess of 50 per cent. of the value of her property. She merely alleges, in the form of conclusions, that her property "is no more valuable per square foot than many other pieces of property abutting thereon, and that this plaintiff's apportionment for said improvement will be many times greater, in proportion to the value of her property, than many other owners of property abutting upon said improvement." "It is a fundamental doctrine of American jurisprudence that those receiving special benefits from the public should make compensation for them*** and the levy upon property specially benefited of a cost of a local improvement is but a further application of this same doctrine. * * * An assessment for a public improvement is not a tax in the ordinary sense of the term, but a charge for improvements for the making of which for his benefit the property owner should pay compensation." 28 Cyc. 1102. In Gosnell v. City of Louisville, 104 Ky. 201, 46 S. W. 722, 20 Ky. Law Rep. 519, the court said: "The distinction between a tax and a local assessment has been uniformly recognized by the courts of this state; and, while the latter is, in one sense, a tax, being the imposition of a burden upon the citizen and an involuntary charge upon his property, it is not a tax in the sense contemplated by the framers of the Constitution." Holzhauer v. City of Newport, 94 Ky. 407, 22 S. W. 752, 15 Ky. Law Rep. 188; Maddux v. City of Newport, 14 S. W. 957, 12 Ky. Law Rep. 657; Levi v. City of Louisville, 97 Ky. 409, 30 S. W. 973, 16 Ky. Law Rep. 872, 28 L. R. A. 480; McNaughten v. Industrial School, 44 S. W. 380, 19 Ky. Law Rep. 1695; Zable v. Orphans' Home, 92 Ky. 89, 17 S. W. 212, 13 Ky. Law Rep. 385, 13 L. R. A. 668. der of parties, he must set out the facts relied on to show the fraud. Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. [Ed. Note.-For other cases, see Removal of Qmn 86.1 2. REMOVAL OF CAUSES 36-DIVERSITY OF CITIZENSHIP-FRAUDULENT JOINDER OF PAR TIES. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. 36.] 3. REMOVAL OF CAUSES 17-DIVERSITY OF CITIZENSHIP-FRAUDULENT JOINDER OF PAR TIES. [2] It thus appears that there is no merit in appellant's contention that the statute and cause of action against both defendants named, Where the petition on its face states a good ordinance are in violation of sections 157 and the nonresident defendant cannot have the cause 171 of the Kentucky Constitution. Neither removed to the federal court on the ground of diare they violative of the fourteenth amend-versity of citizenship, in the absence of a posiment of the United States Constitution. It avoid the removal. tive showing of fraud in joining them in order to does not appear that any property has been, or is about to be, taken without due process of law, nor that a tax assessment is about to be made which imposes upon her an unequal burden. The fact that the property bears the expense of improvement according to frontage rather than superficial area does not render it unconstitutional, nor of itself make the burden of taxation unequal. Either plan may inflict some hardships, but it is within the power of the Legislature to create a taxing district for improvements upon either plan. Louisville, etc., v. Barber Asphalt Paving Co., 197 Ú. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819; Shumate v. Heman, 181 U. S. 402, 25 Sup. Ct. 645, 45 L. Ed. 916, 922; French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879. The French Case, supra, distinguishes the case of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, upon which appellant relies. The Norwood Case has no application here. It was a proceeding to condemn a right of way for a street through Baker's property at the expense of the property which he owned on each side of the proposed street. This was equivalent to taking, under the guise of taxation, private property for public use without compensation. Of course, on the front-foot plan the cost apportioned to appellant's property will be more than that apportioned to the other owners on Kenton, because her lot has a greater frontage on that street. If later on Grand boulevard is improved, she will have to bear a proportionate share of that expense also. But this extra expense is due to the fact that she owns a corner lot. It does not follow, however, that the burden of taxation is unequal. As a rule, corner lots are more valuable, and there is nothing in the petition to indicate that her case is an exception to the rule. The judgment of the lower court is affirmed. A petition, alleging that a defendant's servant, as representative of the defendant employthe deceased, and directly charged with the duty er, was the mine boss, superior in authority to of looking after the safety of the mine; that he directed the deceased to do the work he was dodent in which deceased was killed was caused by ing at the time he was killed; that the accithe unsafe and dangerous condition of the mine roof; and that this condition was known to the defendant servant and the defendant employer, cise of ordinary care-states a good cause of acor could have been known to them by the exertion against both defendants, so that neither is entitled to a transfer to the federal court on the ground of diversity of citizenship, to avoid which the plaintiff made the alleged fraudulent joinder of parties. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. § 92; Dec. Dig. 4. DEATH BLE. 47.] 43-NEGLIGENCE-PERSONS LIA Under Const. § 241, providing that, whenever the death of a person results from injury may be recovered from the corporation, or perinflicted by negligence or wrongful act, damages son so causing the same, and Ky. St. § 6, providing that damages may be recovered from the wrongdoer and its agents or servants causing the employer and his servants whose negligence the same, an action may be brought against both caused the death of deceased. 39-GROUNDS-DI [Ed. Note.-For other cases, see Death, Cent. Dig. § 59; Dec. Dig. 43.] 5. REMOVAL OF CAUSES VERSITY OF CITIZENSHIP-ERRONEOUSLY DIRECTED VERDICT FOR RESIDENT DEFENDANT. ployer and the employer's mine boss are joined In an action in which the deceased's emas defendants, where the court erroneously directed a verdict for the defendant boss, the case will be treated as though the ruling were not a removal to the federal court because the resimade, and the defendant company cannot secure dent mine boss is no longer in the case, and there is therefore diversity of citizenship between the plaintiff and the remaining defendant. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. § 73; Dec. Dig. 39.] 6. REMOVAL OF CAUSES 39-DIVERSITY OF CITIZENSHIP - DIRECTED VERDICT FOR RESIDENT DEFENDANT. In an action in which the deceased's employer and the employer's mine boss are joined as defendants, although a ruling of the court directing a verdict for. the resident defendant was correct, the case must be treated as though he were still a party, since the plaintiff on appeal having preserved his exception may appeal from the directed verdict, and thus the party in whose favor the verdict is directed is never out of the [ the court determined that the plaintiff had case until the appeal is decided. failed to make out a case against Donahue [Ed. Note.-For other cases, see Removal of and directed a verdict in his behalf. Causes, Cent. Dig. § 73; Dec. Dig. 39.] 7. Master and SERVANT 289-INJURIES TO SERVANT-CARE REQUIRED QUESTIONS FOR JURY. The question whether the deceased employé in a mine, killed by fall of stone from the roof, exercised ordinary care for his own safety, held on the evidence for the jury. [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. 289.] 8. MASTER AND SERVANT 118, 124 - INJURIES TO SERVANT-CARE REQUIRED OF MASTER-INSPECTION OF MINE ROOF. It is the duty of the master operating a coal mine not only to inspect the roof of the mine in the exercise of ordinary care to provide a safe place for his servants to work, but also to support the roof in a proper manner. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209, 235-242; Dec. Dig. 118, 124.] 9. MASTER AND SERVANT 124-INJURIES TO SERVANT-CARE REQUIRED. Where the duty of inspecting the mine is upon the master, he cannot escape liability for injuries to the servant unless the duty of inspection was imposed upon the injured person, or the danger was so obvious that a person of ordinary intelligence in the exercise of ordinary care could have discovered the peril; nor can he escape liability by a showing of inspection of the mine, since this is not a conclusive showing of exercise of the required degree of care, but the question is still for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. 124.] Appeal from Circuit Court, Knox County. Action by James E. Prichard's administrator against the Carter Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed. P. D. Black and Black, Black & Owens, all of Barbourville, for appellant. J. D. Tuggle, of Barbourville, for appellee. The plaintiff's petition charged that the Carter Coal Company was the owner and operator of the mine in which Prichard came to his death, and: * * That the defendant Donahue "was a servant and employé of the defendant company, working for it in the operation of its mine, acting in the capacity of a foreman or boss, and directing other servants of said company, including the said James E. Prichard, in the performance of their duties at work in said mine while at work for * That he was put to said company. work by the defendant company and by the mine foreman, Mike Donahue, to replace a car on the track, which was wrecked and off the rails of the track in its mine, and while so engaged a large quantity of slate, stone, and earth fell upon him and so bruised and mangled him that he im. * That the decedent was ignorant and inexperienced in mining and did mediately died. *** not know of the dangers and hazards attending the work at which he was employed at the time of his injury, and the defendant Donahue knew that the said Prichard was ignorant and inexperienced and did not know of the dangers and hazards attendant upon the duties required of him as aforesaid. Nor did the defendant company or Donahue inform him of the dangerous character of the work at which he was placed, or warn or caution him of the dangers attendant thereto. He said that the place where the said James E. Prichard was placed to work and where he received the injuries aforesaid was in a highly dangerous and unsafe place for the duties required of him, and was known by the defendant company and the mine foreman and boss, Donahue, to be highly dangerous and unsafe; but its unsafe condition was not known to him. He says that it was the duty of the defendant company and the defendant Donahue to inspect and make reasonably safe the working to do, and that it was not the duty of the said place of the said Prichard, which they failed Prichard to make safe his said working place. The plaintiff says that the injuries to the said Prichard were brought about and caused alone. by reason of the joint and concurrent gross negligence of the defendant company, and the defendant Donahue, in failing to inform or instruct said Prichard in the duties required of him and of the dangerous character of the work. at which he was placed, and warn or caution him of the danger and hazard attendant upon the work required of him.” CARROLL, J. This suit was brought by the administrator of James E. Prichard against the Carter Coal Company, a Delaware corporation, and Mike Donahue, its In seasonable time after the defendants mine boss who was a citizen of Kentucky, to had been brought before the court by service recover damages for the death of James E. of process, and before the Carter Coal ComPrichard while in the employment of the pany had otherwise entered its appearance to company and working under the direction the action, it moved the trial court to transand control of the defendant Donahue. At fer the action to the federal court, upon the the time of his death, Prichard was a track ground that it was a citizen of the state of man, engaged in placing a derailed car on the Delaware, and averred that: track, and while so engaged Prichard and two other men were killed by a large and heavy piece of slate that fell from the roof of the mine. On the trial of the case, there was a directed verdict as to Donahue and a judgment against the coal company. On this appeal of the coal company, one assignment of error relates to the refusal of the trial court to remove the action to the federal court when the removal petition was first filed and also upon a renewal of the motion, at the conclusion of the evidence, when "The plaintiff, C. P. Prichard, has made the defendant Mike Donahue a party defendant herein with this petitioner for the sole purpose of undertaking to deprive this petitioner of the right to remove the said action to the United States District Court for the Eastern District of Kentucky for trial, and to fix the only jurisdicall of same is done willfully and wrongfully, and tion for said trial in the Knox circuit court, and with fraudulent intent, while said plaintiff and his attorney know that said Mike Donahue is not liable in any way to plaintiff, and in no way concurred in any negligence, if any there was, which brought about the death of the decedent, Jas. E. Prichard, and that said Mike Donahue is |