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quitting the place of work after its comple-, it was attributable to the appellee's neglition. Consequently they were caused and gence. The appellant was not injured by sustained by reason of his negligence, which the defective valve, but by his attempted absolves appellee from the liability attempt- use of a pipe in descending from the water ed to be imposed upon it in this action. As column after repairing the valve. The pipe said in Louisa Coal Co. v. Hammond's Adm'r, contained no defect, but was wet and slip160 Ky. 271, 169 S. W. 709:

pery from the leaking of water from the “A servant is not ordinarily required to make valve, which made its use in the manner ata minute or detailed examination of the place tempted by appellant obviously dangerous, where the master puts him to work, nor to take which danger, as already shown, was known notice of any defects which would not be apparent to one who usually has neither time nor op

to him. In Seaboard Air Line R. Co. v. portunity for more than a casual, hurried glance Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 but is entitled to rely on the master's having 1915B, 475, it was held: at the place of work or the instrumentalities, L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. adequately discharged his primary duty of using ordinary care to make the place of work and “The elimination of the defense of assumption instrumentalities of work reasonably safe for of risk by Employers' Liability Act April 22, his use. Where, however, the servant, as in the 1908, § 4, 35 Stat. 65, c. 149 (U. S. Comp. Stat. instant case, is the representative of the master, Supp. 1911, p. 1322), in any case where the and in control of the place of work, or instru- violation by the carrier of any statute intended mentalities for doing it and the manner of its for the safety of the employés contributed to the performance, if he himself undertakes its per- injury or death of the employé, plainly eviformance, he assumes, not only the risks or dences the legislative intent that in all other dangers that are obvious, but also such as ordi- cases such assumption of risk shall have its nary care on his part in inspecting the place or former effect as a complete bar to the action.” instrumentalities of work before beginning it Southern R. Co. v. Crockett, 234 U. S. 725, 34 could have enabled him to discover.

Sup. Ct. 897, 58 L. Ed. 1564. Here appellant alone was in charge of the

The doctrine deducible from the cases suwork. He alone knew whether it was safe pra, and others involving this question, deor unsafe to attempt its performance in the cided by the Supreme Court, seems to be manner pursued by him. He was charged

that the defense of assumption of risk is with the duty of exercising ordinary care to

available to an interstate carrier under the ascertain whether the place and the instru: "Employers' Liability Act” as at common mentalities were reasonably safe for the law, except in the cases mentioned in section work he had to perform, and he admits that 4 of that act (Comp. St. 1913, § 8660); i. e.:

“Any case where the violation by such comhe saw and knew the wet and slippery condi

mon carrier of any statute intended for the safetion of the pipe before he fell from the wa- ty of employés contributed to the injury or ter column and was injured. These facts death of such employé.necessarily bar a recovery, for his injuries It is manifest that, even if there had been were incidental to and resulted from his as evidence conducing to prove that the wet and sumption of the risk he knowingly incurred slippery condition of the pipe on the water by his attempted use of the wet pipe in de column was attributable to the negligence of scending from the water column.

appellee, no doubt could exist of its right to [3] The fact that the action was brought rely upon the defense of the assumption of under the federal statute known as the risk, for, according to the undisputed facts. “Employers' Liability Act” does not affect the danger to which appellant subjected himthe question under

under consideration. Here self in attempting to make use of the wet there was no violation of the appellee of any pipe in descending from the water column provision of that statute. The evidence fur- was so obvious and imminent that an ornishes no proof that it negligently used in dinarily prudent person could not, under the operating its railroad a defective appliance, circumstances, have failed to know and apwhich of itself caused the appellant's injury. preciate it. It therefore follows that the The defect in the valve of the water column, giving of the peremptory instruction by the being slight and of a temporary character, trial court was not error. was repaired immediately after its discovery We have been unable to discover any erby appellant. Whether the defect was the ror in the admission or rejection of evidence. result of accident or wear and tear does not For the reasons indicated, the judgment is appear, but the evidence fails to show that affirmed.

ty is composed of 17 local unions; and the PETE SHEERAN, BRO. & Co. v. TUCKER county union is in turn a constituent memet al.

ber of the Kentucky State Union, which is (Court of Appeals of Kentucky. Oct. 28, 1915.) a branch of the Farmers' Educational and 1. APPEAL AND ERROR Om 173-REVIEW-DE- Co-operative Union of America. FENSES.

Upon the second trial there was introIn an action to recover damages for breach duced in evidence a copy of the constitution of a contract, where defendants failed to raise and by-laws of the state organization, from the question in the court below that the plaintiff union was an unlawful coinbination in re- which the following excerpts are taken: straint of trade and could not recover, it was “We declare the following purposes: * * * too late to raise it on appeal.

To secure and maintain profitable and uniform [Ed. Note.-For other cases, see Appeal and prices for grain, cotton, tobacco, live stock and Error, Cent. Dig. $8 1079-1089, 1091-1093, other products of the farm.

* As or1095, 1098, 1101-1120; Dec. Dig. Omw173.]

ganized farmers, it is our aim and duty to at2. PLEADING C207-TRIAL C168--AFFIRM- interfere with any other legitimate vocation.

tend to our own business, not to disturb or ATIVE DEFENSES-SPECIAL DEMURRER.

profession, or calling, but in attending to our An affirmative defense may not be asserted own business, we shall strive to control the by special demurrer, or by a motion for a di- production, price, and distribution of every rected verdict.

class of farm products." [Ed. Note. For other cases, see Pleading,

[1, 2] Because of these declarations, it is Cent. Dig. $8511, 512; Dec. Dig. Om 207; Trial, Cent. Dig. $$ 341, 376-380; Dec. Dig. now contended by appellants that the FarmOm 168.]

ers' Union is an unlawful combination in 3. SALES 52-ACTION FOR PRICE BURDEN restraint of trade, and that it therefore canOF PROOF.

not recover herein. But appellants failed to an contract to purchase tobacco, where the issue raise this question in the court below either was whether a sale was effected or whether by pleading or proof, and it is too late to there was merely an agreement to effect a sub- raise it here. They insist that the question sequent sale by written contract, the burden was raised by special demurrer and by mowas on the plaintiffs.

[Ed. Note. -For other cases, see Sales, Cent. tion for a directed verdict; but an affirmaDig. $$ 118–144, 1045; Dec. Dig. 52.] tive defense may not be asserted in either

of these ways. Appeal from Circuit Court, Breckenridge [3] 2. Appellants also complain because County.

the trial court did not assign to them the Action by E. H. Tucker and others against burden of proof. The real issue being, as Pete Sheeran, Bro. & Co. Judgment for said in the former opinion, whether a sale plaintiffs, and defendants appeal. Affirmed. was effected, or merely an agreement to ef

fect a subsequent sale by written contract, Claude Mercer, of Hardinsburg, for appel- the burden was undoubtedly on the plaintiffs. lants. John P. Haswell, Jr., of Louisville, This was not an action to recover on the and Gus Brown, of Hardinsburg, for appel-check which was put up by the defendants lees.

as a forfeit, but to recover damages for

breach of the contract. HANNAH, J. This is the second appeal

The judgment is affirmed. in this case. For the opinion on the former appeal, see Tucker v. Pete Sheeran, Bro. & Co., 155 Ky. 670, 160 S. W. 176. Briefly stated, the action is one by Tucker and other

GEARY V. TAYLOR. members of a committee appointed by and (Court of Appeals of Kentucky. Oct. 29, 1915.) acting for the Farmers' Union of Brecken- 1. PRINCIPAL AND AGENT Om 100 – EXTENT ridge County to effect a sale of the tol acco OF AUTHORITY-CONSTRUCTION OF CONTRACT. grown by the members of the union, institut- of several thousand acres of land and H. pro

A contract between the owners of a tract ed against Pete Sheeran, Bro. & Co. to recov- vided that H. was to have general supervision er $500 as damages for failure to perform the and control of all of such lands; that he was to terms of a contract which the plaintiffs see that no person entered, trespassed, or squatclaimed had been entered into by defendants ted upon it, or cut down, injured, or destroyed

trees, etc. ; that as to any persons then locatand themselves, whereby they agreed to sell ed upon and in possession of any portion of the and defendants agreed to purchase the tobac- land without record claim of title, but who were co in question. The defense was that there merely in the occupation thereof, H., if he was merely an agreement to eifect a subse thought it proper and prudent, was authorized

; quent sale of the tobacco by a written con- rent collected should be accounted for to the tract to be thereafter entered into between owners; that timber cut and lying upon the the parties.

land might be sold ; that H. was to do all he

could to aid the owners to get possession and Up the second trial the lower court in control of any of the land claimed by persons structed the jury in conformity to the opin- located or squatted upon it without any valid ion of this court reversing the first judgment, claim or title; and that he should not cultivate and the jury found a verdict for the plain or crop any portion of the land, or permit any tiffs. The defendants appeal.

person to trespass upon it, or take possession

of any part thereof. Held, that this did not auThe Farmers' Union of Breckenridge Coun ) thorize H. to make Jeases to persons other than Ky.)



those then living on the land, since, while it , fencing which the lessee agreed to build and gave him general charge and supervision over one-third of the rental value. the land, it particularly specified what his du- [Ed. Note.-For other cases, see_Tenancy in ties were, and authorized leases only to persons Common, Cent. Dig. & 123; Dec. Dig. 49.] then on the land.

7. LANDLORD AND TENANT Om 129_FAILURE [Ed. Note. For other cases, see Principal and

TO DELIVER POSSESSION-DAMAGES. Agent, Cent. Dig. $S 262–273, 345, 364, 368– Ordinarily, where a lessor refuses to com373; Dec. Dig. Om 100.]

ply with the terms of a lease, the measure of 2. PRINCIPAL AND AGENT Cm 166—UNAUTHOR- damages in an action by the lessee is the differIZED ACTS-RATIFICATION.

ence between the agreed rent and the rental The owners of land gave H. general super- value of the premises. vision thereof, with authority to lease to persons

[Ed. Note.-For other cases, see Landlord and then living on the land, and to sell timber cut Tenant, Cent. Dig. $$ 450-457; Dec. Dig. Om and lying on the ground; the contract provid- 129.] ing that he was to account for moneys collected i 8. LANDLORD AND TENANT Omw129 — FAILURE and that he was to receive $10 a week for his TO DELIVER POSSESSION-DAMAGES. services. H. made a lease to a party not then Where a lease provided that it was to terliving on the land and received one month's minate when the land was sold, the lessee could rent. Under instructions from G., one of the only recover, as damages for the lessor's failure owners, he took his expenses out of whatever to deliver possession, the difference between he collected, and he was unable to state wheth- the agreed rent and the rental value up to the er the rent so collected was retained by him or time a judicial sale was confirmed, though a paid to the owners, but did state that he sup- deed was not made to the purchaser for 19 posed it went in with the rest of the funds months thereafter, as the sale became effective collected. It appeared that the owners other when it was confirmed. than G. never knew of the lease, or of the pay

[Ed. Note.-For other cases, see Landlord and ment, until a suit by the lessee for failure to Tenant, Cent. Dig. $$ 450-457; Dec. Dig. Our comply with the lease. Heid, that the facts showed no ratification of H.'s lease by the own

129.] ers other than G.

9. LANDLORD AND TENANT Om 129-FAILURE [Ed. Note.-For other cases, see Principal and


DENCE. Agent, Cent. Dig. $$ 627-633; Dec. Dig. Omm 166.]

In a lessee's action for damages caused by

the lessor's failure to deliver possession, the 3. PRINCIPAL AND AGENT 145—LIABILITY lessee was entitled to introduce evidence to ON CONTRACTS.

show the value of the land for pasturage purA principal may be charged upon a written poses, but not to show the probable profits simple executory contract entered into by an which he would have realized from the use of agent in his own name within his authority, the land. though the name of the principal does not ap- [Ed. Note. For other cases, see Landlord and pear in the instrument and was not disclosed; Tenant, Cent. Dig. $8 450-457; Dec. Dig. Our this not contradicting the writing, but only 129.] explaining the transaction.

[Ed. Note. For other cases, see Principal and Appeal from Circuit Court, McCreary Agent, Cent. Dig. $$ 499, 513-520; Dec. Dig. County. Om 145.]

Action by J. G. Taylor against John A. 4. EVIDENCE 459_CONTRACTS-PARTIES. Geary and others. There was a judgment

a to be the name of a company, it might be shown by for plaintiff against the defendant named, parol who the members of the alleged company and such defendant moves for an appeal. were, and whom it was intended to bind by the Appeal granted, and judgment reversed. agreement, especially where they had frequently done business in the name of the company. 0. H. Waddle & Son, of Somerset, for ap

[Ed. Note. For other cases, see Evidence, pellant. Henry C. Gillis and J. B. Snyder, Cent. Dig. $$ 1722, 1906–1910, 2109–2114; Dec Dig. 459.]

both of Williamsburg, for appellee. 5. TENANCY IN COMMON Om49 LEASES RIGHTS OF LESSEE.

CLAY, C. Plaintiff, J. G. Taylor, brought A lease by one or more of several tenants this action originally against the Flat Rock in common is not valid as to those not joining Coal Company, the Geary Land & Developtherein, but merely makes the lessee a tenant ment Company, and A. P. Hodges to recover in common with the owners.

[Ed. Note. For other cases, see Tenancy in damages for failure on the part of the deCommon, Cent. Dig. § 123; Dec. Dig. Om 49.] fendants to comply with a lease. Subse6. TENANCY IN COMMON ww49—LEASE-Fail- quently John A. Geary, Ed. Dowling, D. G. URE TO DELIVER POSSESSION-DAMAGES.

Falconer, and others were made parties deOne of several tenants in common, in writ- fendant. The return of the service of process ing to an agent of the cotenant to "make lease on the Flat Rock Coal Company was quashfor that cattle range the best you can, did not ed. The court directed a verdict in favor of assume to be the sole owner of the land, nor vest the agent with authority to make the 'lease Dowling, Falconer, and others, and a trial in his name alone, nor did he give H. any other before a jury resulted in a verdict and judgauthority than to make a lease in the name of ment in favor of plaintiff against John A. the co-owners; and his liability for a breach of the lease made by the agent without authority Geary for the sum of $450. The amount in from the other cotenants was not the same as controversy being less than $500, exclusive if he had been the sole owner, and where he of interest and costs, the defendant Geary owned about an undivided one-third interest, has moved for an appeal. the proper measure of damages was the difference between one-third of the agreed rent,

The facts are as follows: About the year including one-third of the reasonable cost of 1881, the Flat Rock Coal Company, a corporation, owned several thousand acres of On August 14, 1909, Hodges, in the name land then located in Pulaski county, but now of the Flat Rock Coal Company, as party embraced in the new county of McCreary of the first part, by him as agent, leased to Shortly thereafter certain creditors of the J. G. Taylor, party of the second part, a company brought suit, and the lands were portion of the lands in question for purposes sold and purchased by John A. Geary, Ed. of pasturage. The lease provided that it Dowling, D. G. Falconer, John W. Lell, John should continue for a term of ten years, unB. Wilgus, and John T. Miller, and were less the premises should be transferred by held by them from that time on as tenants the Flat Rock Coal Company. Taylor agreed in common. On April 8, 1909, John A. Geary, to pay $25 on the 1st of January of each Edward Dowling, D. G. Falconer, the Se-year, and further agreed to inclose the heads curity Trust Company of Lexington, as ad- of Straight creek with a good and sufficient ministrator of John B. Wilgus and executor fence and to keep same in repair during the of John W. Lell, and John T. Miller, entered term of the lease. The contract was signed into a contract with A. P. Hodges, of Pulaski by J. G. Taylor and A. P. Hodges, "Agent county, by which the following authority was Flat Rock Coal Company.” The first installconferred upon him:

ment of rent was paid on January 1, 1910. "Second party is to have the general super-Shortly thereafter, Geary notified Taylor not vision and control of all of said lands, and see to do the fencing or take possession of the that no person enters upon any part of said land. It further appears from the evidence lands, or trespasses or squats upon any part thereof, or cuts down, injures, or destroys or that none of the joint owners, except Geary, carries away any trees that may be on same, knew anything of the alleged lease, and had or strips the bark off any of the trees upon said never authorized Geary or Hodges to execute land, or in any way injures any of the same.

the lease. As to any person or persons now located upon

At that time there was a suit and in possession of any portion of said land pending for the settlement of the estates of without any record claim of title, and who are John B. Wilgus, John T. Miller, and John W. merely in the occupation thereof, the said Hodg- Lell, and these proceedings were all consolies, if he thinks it is proper and prudent so to do, is authorized to make a lease with said per- dated for the purpose of disposing of the sons for a term of one year, and from year to lands in Pulaski county. The lands were year, as may seem best for first parties. Said sold on September 10, 1910. The sale was lease shall be made according to the form fur-confirmed on October 10, 1910, and a deed nished to second party by first parties.

“The rent of said portions of land that may made to the purchaser on May 18, 1912. be leased or rented shall be collected by second Geary says that he never intended that party, and second party shall account for said Hodges should go ahead and make the lease rents and pay the same over on the 1st day of each and every month to first parties.

Such without consulting the owners, but intended timber as may have been cut and that is now that he should prepare the lease and send it lying upon said land may be sold where it lays back for approval, as had always been done. on the land by second party for the best cash price he can get for it, the same to be remov

[1] It is clear, we think, that the above ed by the purchaser at his own cost and ex- contract between the joint owners and Hodgpense. He shall account to and pay the pur- es is not sufficient to confer on Hodges the chase price over on the 1st day of each and general power to make leases to persons not every month to first parties. Second party shall do all he can to aid the first parties in every living on the land. While it is true that he way possible to get the possession and control is given general charge and supervision over of any portion of said lands that are claimed the land, the contract goes ahead and speciby persons who have located or squatted upon fies particularly what his duties are, and authe same or any part thereof, and who have no valid claim or title thereto or any claim or title thorizes him to make leases only to persons of record. Second party shall take the full su- then on the land. In view of the fact that pervision and control of said lands, and give his his duties and powers are thus particularservices and attention to the keeping, preservation, and care thereof. He shall not cultivate ized, the terms of the contract cannot be conor crop any portion of said land. Second par- sidered broad enough to include the power ty shall not commit or permit any waste to be to make leases to persons not on the land. committed on said land. He shall not cut or allow any trees to be cut, barked, or injured, or fect of the contract made by Hodges, as

[2] It remains to consider what is the efcarried away. He shall not permit any person to trespass upon said land, or take possession agent of and in the name of the Flat Rock of any part thereof, or cut down or injure any Coal Company. As a matter of fact, the Flat trees, or strip or bark any of them in any manner whatever. He shall make reports as to said Rock Coal Company no longer existed. It lands from time to time to first parties on the had been divested of all title to the lands. last Saturday in each month. For all of his As before stated, the proof conclusively services herein he shall be paid by first parties shows that none of the joint owners, with ten dollars ($10.00) per week, said payments to be made as herein provided, in proportion to the the exception of Geary, ever authorized the interest the first parties and each of them have making of the lease either in their names or in and to said land as follows."

in the name of the Flat Rock Coal Company. On August 3, 1909, John A. Geary sent a The proof further shows that Geary himself letter to Hodges containing the following was not authorized in behalf of the other language:

co-owners to do anything with respect to the And make lease for that cattle land, unless with their consent and approval. range the best you can; best not make it for But the point is made that Geary's co-owners Ky.)



the rent which plaintiff paid. It may be con- y of his liability. Where property is owned ceded that a cotenant not joining in a lease by several tenants in common, a lease by one may ratify it by accepting and retaining his or more of them is not valid as to those who portion of the rent with knowledge of the cir- do not join in the lease, but operates merely cumstances under which it was paid. The to make the lessee a tenant in common with proof in this case shows that plaintiff paid the owners. Du Rette v. Miller, 60 Or. 91, $25 in rent to Hodges, the agent. Hodges 118 Pac. 202, Ann. Cas. 1913D, 1163, and says that he supposes it went in with the note; Zeigler v. Brenneman, 237 Ill. 15, 86 rest of the little funds that he collected. On N. E. 597; 7 R. C. L. p. 878, § 73. In authorbeing asked, “Did you keep it yourself or izing Hodges to make the lease, Geary did pay it to the owners of the land ?” he an- not assume to be the sole owner of the land, swered:

nor did he vest Hodges with authority to "I could not say.

Under the instructions I make the lease in his name alone. His lethad from Mr. Geary, I was to take my own ex- ter to Hodges cannot be construed to give penses out of whatever was paid on the proper- Hodges any other authority than to make a ty; but whether or not that $25 went to Geary, lease in the name of the co-owners. The efor I used it, I could not say.”

fect of the contract in question, therefore, is This is all the proof on the question of the same as if Hodges had purported to make ratification. It does not show that Geary's the lease in the name of Geary and the other co-owners, with knowledge of the fact that co-owners. Since the lease was effective only the lease had been made and the $25 had as to Geary's interest in the property, Geary's been paid thereon, received and retained any liability for a breach thereof is not the same portion of that sum, or derived any benefit as if he were the sole owner of the property, therefrom in any settlement which they made since all that plaintiff has been deprived of is with Hodges, the agent. On the contrary, the right to occupy and use the land for pasthe evidence shows that the co-owners, other turage in conjunction with the other co-ownthan Geary, never knew of the lease in ques-ers. In a case like this, it is very difficult tion, or of any payments made thereon, until to determine the precise measure of damages. the summons was served on them in this Ordinarily, where the lessor refuses to comcase. That being true, the evidence fails to ply with the terms of a lease, the measure show ratification by them. The lease not of damages in an action by the lessee is the having been authorized or ratified by Geary's difference between the agreed rent and the co-owners, it follows that it is invalid so rental value of the premises. Devers v. May, far as they are concerned.

124 Ky. 387, 99 S. W. 255, 30 Ky. Law Rep. [3, 4] What is the effect of the contract so 528. By its terms the lease was to terminate far as Geary is concerned? The contract when the land was sold. As before stated, purports to have been made by the Flat Rock the land was sold on September 10, 1910. Coal Company, as principal, by Hodges as its The sale was confirmed on October 10, 1910, agent. It is the rule that a principal may be though a deed was not made to the purchaser charged upon a written simple executory until May 18, 1912. Manifestly, the sale becontract entered into by an agent in his own came effective, not when the deed was made, name within his authority, although the name but when the sale was confirmed. It furof the principal does not appear in the in ther appears that the agreed rent was for strument and was not disclosed. Ford v. the whole of the premises, and not for GeaWilliams, 21 How. 287, 16 L. Ed. 36; Eastern ry's portion thereof. Geary owned about an R. Co. v. Benedict, 5 Gray (Mass.) 561, 66 undivided one-third interest in the land. In Am. Dec. 384; 2 C. J. 683. This is true, not- our opinion, the proper measure of damages withstanding the rule of law that an agree is the difference between one-third of the ment reduced to writing may not be con- agreed rent, including one-third of the reatradicted or varied by parol, for it is held sonable cost of fencing, and one-third of the that such proof does not contradict the writ- rental value of the land up to October 10, ing, but only explains the transaction. And 1910. In determining the rental value of the where, as in this instance, the contract pur- land, plaintiff will be permitted to introduce ports to be made in the name of a company, evidence tending to show its value for paswe see no reason why it may not be shown turage purposes, but will not be permitted to by parol who were the members of the alleg- show the probable profits which he would ed company and whom it was intended to have realized from the use of the land. Kelbind by the agreement, in view of the fact ly v. Davis, 8 Ky. Law Rep. 58; 24 Cyc. 922. that the co-owners of the land company fre

Since the trial court assumed in its inquently did business with respect to the land struction that Geary was responsible for all in question in the name of such company. damages following the breach of the rental We therefore conclude that the contract, contract, it follows that the instruction and though not binding on the other tenants in judgment based thereon are erroneous. common, because not authorized by them, is Wherefore the appeal is granted, and the binding on Geary, who did authorize it. judgment reversed, for a new trial consistent

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