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to work on each road, the judge did not put this road in any road precinct, or appoint an overseer therefor, or allot hands thereto. The circuit judge directed a writ of mandamus to issue compelling the county judge to set apart this road in a road precinct and appoint an overseer therefor and allot hands thereto. From this order, the county judge appeals.

[1, 2] The road in question had been used by the public for a sufficient period of time to constitute it a highway, with the right of free travel thereon as between the public and the owners of the soil over which the road runs. But this use by the public did not impose on the county the duty of keeping the road in repair as a part of the system of public roads under the control of the county. Section 4287 of the Kentucky Statutes provides in part that:

"All public roads heretofore established by the several county courts, which have not been vacated according to law, are hereby declared to be public roads, without regard to any informality in the order of the county court by which they were established."

And section 4295 reads in part:

"Every public road *** heretofore established and opened pursuant to law and which has not been lawfully discontinued or vacated shall continue as such, until properly discontinued, and every road ** used and occupied as a public road * * shall in all courts and places be taken and deemed to be a public road, *** whenever the establishwhenever the establishment thereof as such may come in question."

This section contemplates that before a road opened to the public shall be recognized as a county road, entitled to its share of improvements and repair, it must have been established by order of court. So that, although a road may have existed for many years and have been used continuously by the public, this does not constitute it a public road in the meaning of the statute. The Legislature evidently intended by this statute to change the manner in which roads might be treated as having been accepted by the county as public roads, and to make it a prerequisite to their recognition as county roads that they should be established as such by an order of court, and, it appearing that this road had never been established by the county court, it follows that the county judge could not be compelled by mandamus to allot hands or appoint overseers to work it. The failure, however, of the county to establish a road used by the public as a county road does not deprive the public of its use as a highway if, independent of the statute, the conditions surrounding its use are such as to create in the public a right to the use. The statute was not designed to interfere with the settled law of the state as announced in numerous decisions of this court respecting the right of the public to the use of roads. It was only intended to make appropriate action by the county necessary to the establishment of the road as a part of the road system of the county.

Wherefore the judgment is reversed, with directions to dismiss the petition.

v. WATHEN'S EX'RS.

(Court of Appeals of Kentucky. Oct. 19, 1915.)

TROVER AND CONVERSION 9 CONVER

Under these statutes, before the county is charged with the duty of maintaining a road used by the public, it must be established or accepted as a road by the county. The mere fact that the public use a road and have used it for such a period of time as to give them OHIO VALLEY BANKING & TRUST CO. the right to its use does not impose on the county the duty of maintaining it as a county road. It is with the county to say what roads it will assume the control and main-1. tenance of, and until it does assume such control and maintenance by regular action of its authorities a road, although used by the public, does not become a part of the system of the roads of the county in the sense that the county may be compelled by mandatory process to impair or improve it or recognize it as a part of its road system.

The Acts of 1914 (chapter 80), sections of which we have set out, changed the rule laid down in Riley v. Buchanan, 116 Ky. 625, 76 S. W. 527, 25 Ky. Law Rep. 863, 63 L. R. A. 642, 3 Ann. Cas. 788, and other like cases, as to what acts of the county will be sufficient to constitute the acceptance of a public road as a part of the recognized system of roads in the county. It will be noticed that section 4287, supra, declares that:

"All public roads heretofore established by the several county courts, which have not been vacated according to law, are hereby declared to be public roads, without regard to any informality in the order of the county court by which they were established."

SION OF BANK STOCK-WHAT CONSTITUTES. Where, in an action against a bank for the value of stock issued by it to plaintiff's decedent and alleged to have been converted by the bank, it appears that the certificate was never delivered to decedent; that upon sale of the stock after her death delivery to the purchaser was prevented because the certificate could not be afterward the president of the bank requested found; that upon finding the certificate 10 days plaintiff to come and get it, which plaintiff refused to do because of the refusal of the purhaser to then accept it-the bank was not guilty stock at a time when the purchaser was legally of a conversion, since it offered to deliver the bound to accept.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 58-83; Dec. Dig. 9.]

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3. EXECUTORS AND ADMINISTRATORS 167- she received the usual dividends on the SALE OF STOCK-RIGHTS OF PURCHASER.

The purchaser of stock at an executor's sale has the right to demand the identical shares purchased.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 644; Dec. Dig. mm 167.]

4. EXECUTORS AND ADMINISTRATORS SALE-DELIVERY.

164

In the absence of injury to the purchaser, a delay of 10 days does not affect the tender of a certificate of stock sold at an executor's sale, since the executor has a reasonable time after

the sale within which to deliver.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 641; Dec. Dig. mm 164.]

5. BANKS AND BANKING 123-STOCK CERTIFICATE-ISSUE-CUSTODY OF BANK-LIA

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stock. In March, 1914, her executors had a sale of her personal effects, and offered for sale this stock, and it was bought by J. M. Baskett for $178 per share, or $1,780. On the day Baskett purchased the stock it was agreed between him and one of the executors that they should meet the next day at a designated place, when the certificate would be delivered. On the next day, before the appointed time for the delivery of the stock, the executor applied to the bank for the certificate, and was informed by the acting cashier that he did not know where it was, and he told the executor to see Mr. Merritt, the president of the bank. The executor went to see Mr. Merritt, and, some time afterwards, but on the same day, Mr. Merritt told him he could not find the certificate. Thereupon the executor notified Baskett what had happened, and said to him he would have to wait a while until he could get the certificate. It further appears that about 10 days afterwards the certificate was found in the bank in the original certificate book. It had never

Appeal from Circuit Court, Henderson been torn out of the book, and there was inCounty.

Action by A. J. J. Wathen's Executors against the Ohio Valley Banking & Trust Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Montgomery Merritt and Yeaman & Yeaman, all of Henderson, Ky., for appellant. N. Powell Taylor and S. V. Dixon, both of Henderson, for appellees.

CARROLL, J. This suit was brought by the executors of Mrs. A. J. Wathen to recover from the appellant bank $1,780, the alleged value of a certificate for 10 shares of stock in the bank that it was charged the bank had converted to its own use, and for this reason the executors could not deliver it to J. M. Baskett, to whom they had sold it for $1,780. After the issues had been made up, the case was tried before a jury under an instruction telling the jury that they should find for the

"plaintiff such an amount in damages as they believed from the evidence was the reasonable market value of the 10 shares of stock in question at the time the plaintiffs demanded possession of the same."

Under this instruction the jury found a verdict in favor of the plaintiffs for $1,780, and judgment went accordingly, and the bank appeals.

In 1907 Mrs. Wathen bought from the Planters' State Bank 10 shares of its capital stock of the par value of $100 per share. There was issued to her one certificate, serial No. 275, for these shares of stock. Mrs. Wathen, as it appears, never had in her possession this certificate. It remained with the bank from the time of her purchase until her death in 1913, although during this time

dorsed across the face of it in pencil the word "Canceled." A book in the bank also showed that these 10 shares of stock had been transferred to Ingram Crockett, the cashier of the bank, on October 3, 1913, and on the same day another entry showed that Crockett had sold 10 shares of bank stock to Amos Becker. When the certificate was found the executor was requested by the president to come and get it, but he said that Baskett would not take it, and therefore declined to accept it. The executor further testified that two or three days after the stock had been sold, Baskett told him to get this certificate, and he would pay for it.

It might here be noticed that shortly before this sale the affairs of the bank were in an involved condition on account of some misconduct of the cashier, Ingram Crockett, and it is apparent that the condition of the bank had become pretty well known, although perhaps at that time it was not known to what extent the capital of the bank had been impaired and the value of the stock depreciated. But a few days after the sale it was known that the affairs of the bank were in a bad condition, and that the stock was not worth near so much as Baskett bid for it. Baskett testified that he bid on the stock for himself and a Mr. Nichols, and that it was knocked off to him at $178 a share; that he knew at the time the stock could not be delivered. Asked to state for what purpose he bid $178, he said he had reason to believe that the stock could not be delivered, and bid on it to boost the stock of the bank. He further said that shortly after the sale, but on the same day, he told the executor he was ready to take the stock, and that if he could not get the identical stock he bought would not take

any.

He further said that he knew on the day of the sale, but before the sale, that the executor could not deliver to him the stock he bought, and that he bid on the stock because he believed it could not be delivered to him. Mr. Merritt, the president of the bank, said that a few days after the executor asked him about this certificate he went to the bank and found it in the stock book with the word "Canceled" written in pencil across the face of it; that upon discovering that the certificate had been improperly canceled, he erased, or had erased, the word "Canceled" written in pencil and told the executor that the stock was there subject to his order, but that the executor declined to take it because Baskett would not have it.

[1] Under this evidence it is not disputed that if the certificate could have been delivered to Baskett on the day of the sale, or the following day, he would have taken it, or else could have been compelled to take it or pay such sum in damages as the estate suffered by reason of his failure to execute his bid. This being so, the remaining question is, did the delay of about 10 days that elapsed between the day of the sale and the date when the bank offered to deliver to the executor the certificate for the 10 shares issued to Mrs. Wathen have the effect of releasing Baskett from liability on his bid, and the further effect of charging the bank with the value of the stock as though it had converted it?

[2] Baskett is not a party to this appeal, and therefore what may be said as to him for the purpose of illustrating our view of this case is not to be taken in any manner as prejudicial to his rights in the event there should be litigation between him and the executors. But it seems to us, on the record we have, that the executors should have brought this suit against Baskett in place of the bank. The fact that the executors could not deliver the certificate of stock to Baskett for about 10 days after the sale did not release Baskett from his obligation, created by the bid, to take the stock, as it does not appear that time was an essential part of the contract of purchase.

[4] There is no claim that the executors suffered any damage by the failure of the bank to promptly deliver this certificate except such as it is alleged arose from the refusal of Baskett to accept the stock under the circumstances stated, and the refusal of Baskett to take the stock under these circumstances did not make the bank liable for the value of the stock. It does not appear that Baskett sustained any damage by reason of the delay, and the executors had a right to tender the stock to Baskett within a reasonable time after the sale, and this it appears they could have done.

If, however, it should develop that the bank could not and did not offer to deliver to the executor the certificate owned by Mrs. Wathen, and which which Baskett bought, we would have another question. But there is no showing in the record that it did not and could not have delivered this certificate. The meager evidence as to the entries on the books and other circumstances throw little or no light on the question here involved, which is simply this: Did the bank, within 10 days or 2 weeks after the sale, tender to the executor the certificate owned by Mrs. Wathen, and was the bank in a position to tender and deliver this certificate representing the 10 shares of stock owned by her? it did this, there should be a verdict for the bank.

[5] On the other hand, this certificate had apparently been left by Mrs. Wathen in the care of the bank, and it was the duty of the bank to deliver it to her, or her representative, within a reasonable time after demand, and if the bank did not and could not deliver, within the time mentioned, the certificate owned by Mrs. Wathen representing the number of shares owned by her, then the executors should have damages for the loss they sustained on account of the failure of the bank to do this. The real issue in the case as we have outlined it, was not submitted to the jury.

On the record before us, the plaintiffs wholly failed to make out a case, and the judgment is reversed, with directions for a new trial in conformity with this opinion.

WULF.*

(Court of Appeals of Kentucky. Oct. 19, 1915.)

1. LIBEL AND SLANDER

123-QUESTION FOR

[3] Baskett had the right to insist that there should be delivered to him the identical shares of stock that he bought; that is, the shares of stock owned by Mrs. Wathen and LOUISVILLE GAS & ELECTRIC CO. v. which were represented by certificate No. 275. But within 10 days after the sale the executors, as shown by the record, could have delivered to him this identical certificate. The pencil memorandum of the cashier showing that it had been canceled did not, so far as this record discloses, present any reason why the bank officers should not have erased, as they did, the word "Canceled," or prevent them from tendering, as they did, the certificate representing the identical shares of stock that was sold.

COURT-MEANING.

ly innocent on its face, the question whether, Where the language of letters is apparentunder the facts disclosed by the inducement and colloquium, it is fairly susceptible of the defamatory meaning sought to be impressed by the innuendo is one of law.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. 123.]

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

2. LIBEL AND SLANDER 7-LETTERS-EM

BEZZLEMENT.

For a num

bills-at the expiration of the discount period-the company would send its collector Plaintiff, who conducted a drug store, arranged with a gas and electric company, where to Wulf's place of business to receive the by its patrons might pay their bills at his amounts so collected by him. store, adding a fee for his collection, and was ber of years prior to his removal from Presheld out by the company's bills as its agent ton and Catherine streets, Wulf had colto receive payment. After the company's bills for December, 1913, were paid to and receipted lected for the Gas & Electric Company and by him and turned over to the company's col- companies afterwards merged into it, unlector, who receipted therefor, the company, der an arrangement of the same nature. which had participated in a merger of gas com- Wulf collected and paid over to the companies and, in the press of business, had transferred a clerk to its credit department, sent out pany the amounts due to it from its patrons notices to patrons who had paid plaintiff, to in his district for the month of June, 1913, the effect that their bills were still unpaid, and thereafter up to and including the month and requesting payment. Other letters, requesting payment and stating that the service of December, 1913. In the latter month bills would be discontinued if remittance was not were sent out by the company to its patrons made within three days, were also sent out. in his district, the discount period expiring Held, that the letters were not libelous in December 31, 1913. These bills were paid charging plaintiff with the offense of embezzling the money received from the company's patrons. to him, and on January 2, 1914, the amounts [Ed. Note.-For other cases, see Libel and so collected were, by him, paid over to the Slander, Cent. Dig. §§ 17-78; Dec. Dig. 7.] company's collector, who receipted therefor in itemized form on a book or record furnished to Wulf by the company for that purpose; the book being kept by Wulf at his store. On January 9, 1914, the company, through a misunderstanding or mistake upon the part of the clerical force in charge of delinquent collections, sent to a number of its patrons who had paid their bills for December, to Wulf, a letter which read as follows:

Nunn, J., dissenting.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by John H. Wulf against the Louisville Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Re

versed.

O'Doherty & Yonts, of Louisville, for appellant. Elmer C. Underwood, Robt. G. Wulf, and O'Neal & O'Neal, all of Louisville,

for appellee.

HANNAH, J. During a period of 28 years prior to May, 1913, John H. Wulf was engaged in the retail drug business, first as salesman and later as proprietor, at Preston

remains unpaid. I presume that our failure to receive your remittance is simply due to an oversight and not from any disposition on your let us have your check by return mail, and part to neglect this payment. Will you kindly oblige."

"According to our records, the above bill still

their bills to Wulf, there was sent a letter To other patrons, who had previously paid

which read as follows:

"According to our records, the above bill still remains unpaid. Failure to receive your remittance for the same within three days from date of this letter will be considered as a notice shall have same discontinued at that time. For that the service is no longer desired, and we your information, we wish to say that if the service is discontinued for nonpayment, a charge of $1.00 will be collected before reconnection is made."

and St. Catherine streets in Louisville. In May, 1913, he completed the construction of a modern business building at the corner of Barrett avenue and Kentucky street in Louisville, a point said to be about two miles distant from his former location, and he thereupon removed to, and embarked in, the retail drug business at this latter location, his total investment, including an equipment of handsome fixtures and a large stock of merchandise, being about $20,000. In June, 1913, he entered into an arrangement with the Louisville Gas & Electric Company, whereby patrons of that company were authorized to pay their bills for gas and elec-mailed to you a few days ago in reference to

tricity at Wulf's drug store, by paying to him, in addition to the face of the bill, a fee of two cents, which was his compensation for making the collection. Under this arrangement, bills were made out by the company and mailed to its patrons in the district wherein Wulf was authorized to receive payment thereof, in the latter part of each month. These bills advised the customers that Wulf was the agent of the company authorized to receive payment thereof. They were presented and paid to Wulf, receipted by him, and returned to the customAbout nine days after mailing out the

er.

And, later, the following letter was sent by the company to some of its patrons who had paid their bills to Wulf:

"We have not received a reply to the letter

the above account. As this account is considerably past due, we would appreciate if you would call at this office and make settlement

for same."

Asserting that the letters mentioned charged him with the offense of embezzling the money so paid to him by the company's patrons who received such letters, and were so understood by such patrons, Wulf brought this action against the Louisville Gas & Electric Company, in the Jefferson circuit court, to recover damages for the alleged libel. He recovered a verdict and judgment in the sum of $5,000, and the defendant appeals.

[1] The language of the letters is appar- | such a communication, being unable to acently innocent on its face; but it is con- count for its publication in any other reatended by appellee that under the facts dis- sonable manner, might be justified in asclosed by the inducement and colloquium, suming that the communication is an atthe letters are fairly susceptible of the de- tempt to libel by indirection. famatory meaning with which they are sought to be impressed by the innuendo. This is a question of law.

"If the words are not reasonably susceptible of any defamatory meaning, the judge at the trial will direct a nonsuit. ** Where the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning, the court is justified in sustaining a demurrer to the declaration. *** Or, in other words, it is for the court to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to determine whether such meaning is truly ascribed." Newell on Slander & Libel (3d Ed.) §8 344, 345.

"It is the duty of the court to say whether a publication is capable of the meaning ascribed to it by the innuendo. But when the court is satisfied of that, it must be left to the jury to say whether the publication has the meaning so ascribed to it." 25 Cyc. 545.

[2] In determining this question, in a case like this, where the language used is entire ly innocent and harmless on its face, but is such that it might possibly, in connection with certain extrinsic facts, convey a covert meaning wholly at variance from its ordinary interpretation, the inquiry is not whether the language was understood in its covert

But, in the instant case, there is shown by uncontradicted evidence, indeed by the conceded facts, a reasonable explanation of and occasion for, the writing and sending of the letters mentioned. A short time before this, there had been effected a merger of several heating and light companies in Louisville, and in the press of business occasioned by the work of bringing the whole into one system, and on account of a change in the accounting methods, a clerk, who had been transferred to the credit department to assist in sending out the notices to delinquent patrons, acting under the impression that the cashier had noted on the list of delinquents all those who had paid their bills after the closure of the books on a former day, sent out the letters here involved; the names of of the list. The sums were small, and each such persons not having been so checked off bill had printed upon it a notice to the effect that Wulf was the agent of the company, each bill so paid had been receipted by Wulf authorized to receive payment thereof, and and returned to and was then in the possession of the patrons mentioned. Wulf was sense by those who received the letters, for living in the immediate vicinity, was the that would be to substitute the irresponsi-owner of considerable property, permanentble, hasty opinions of perhaps prejudiced ly located, and doing a prosperous business; minds for the calm and careful judgment of the court, and to place the defendant at the mercy of the misconception or morbid imaginations of the witnesses, permitting them to usurp the functions of court and jury. The real inquiry is rather whether, under all the circumstances, the language of the letters mentioned was fairly and reasonably calculated to produce upon the minds of the recipients thereof, assuming them to be persons of average intelligence and free from bias for or against the plaintiff, the impression that the company was charging plaintiff with the offense of embezzlement or wrongdoing in connection with the money collected by him from its patrons. Thompson v. Lewiston Daily Pub. Co., 91 Me. 203, 39 Atl. 556.

and it is unreasonable to presume that any person of average intelligence would conclude from the letters in question that Wulf had embezzled the money. It seems to us that know that the receipted bills in the possesany person of average intelligence would sion of the company's customers would completely exonerate them from having to pay the items a second time, and that there could be no inducement on the part of the company to lay before its customers a charge that Wulf had retained this money, or to attempt to collect bills which had already been paid to its authorized agent.

Under these circumstances, the only impression that these letters were fairly and reasonably calculated to produce upon the mind of a person of average intelligence and If there be a publication of matter which, free from bias was that an error had been though apparently innocent and harmless on made somewhere in the records of the comits face, is sought to be shown to be defama-pany which would be corrected upon the tory by reference to extrinsic facts, and such publication is made without the existence of any seeming occasion therefor, this is a factor of considerable weight in determining whether the language was reasonably calculated to convey to the recipients of the communication the defamatory meaning sought to be impressed thereupon. The recipient of

presentation of the receipted bill.
therefore of the opinion that the innuendo
asserted by the plaintiff is not justified; and
the trial court should have directed a ver-
dict for the defendant.

The judgment is reversed.
NUNN, J., dissenting.

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