quitting the place of work after its comple- it was attributable to the appellee's neglition. Consequently they were caused and sustained by reason of his negligence, which absolves appellee from the liability attempted to be imposed upon it in this action. As said in Louisa Coal Co. v. Hammond's Adm'r, 160 Ky. 271, 169 S. W. 709: "A servant is not ordinarily required to make a minute or detailed examination of the place where the master puts him to work, nor to take notice of any defects which would not be apparent to one who usually has neither time nor opportunity for more than a casual, hurried glance at the place of work or the instrumentalities, but is entitled to rely on the master's having adequately discharged his primary duty of using ordinary care to make the place of work and instrumentalities of work reasonably safe for his use. Where, however, the servant, as in the instant case, is the representative of the master, and in control of the place of work, or instrumentalities for doing it and the manner of its performance, if he himself undertakes its performance, he assumes, not only the risks or dangers that are obvious, but also such as ordinary care on his part in inspecting the place or instrumentalities of work before beginning it could have enabled him to discover." Here appellant alone was in charge of the work. He alone knew whether it was safe or unsafe to attempt its performance in the manner pursued by him. He was charged with the duty of exercising ordinary care to ascertain whether the place and the instrumentalities were reasonably safe for the work he had to perform, and he admits that he saw and knew the wet and slippery condition of the pipe before he fell from the water column and was injured. These facts necessarily bar a recovery, for his injuries were incidental to and resulted from his assumption of the risk he knowingly incurred by his attempted use of the wet pipe in descending from the water column. gence. The appellant was not injured by the defective valve, but by his attempted use of a pipe in descending from the water column after repairing the valve. The pipe contained no defect, but was wet and slippery from the leaking of water from the valve, which made its use in the manner attempted by appellant obviously dangerous, which danger, as already shown, was known to him. In Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, it was held: "The elimination of the defense of assumption of risk by Employers' Liability Act April 22, 1908, § 4, 35 Stat. 65, c. 149 (U. S. Comp. Stat. Supp. 1911, p. 1322), in any case where the violation by the carrier of any statute intended for the safety of the employés contributed to the injury or death of the employé, plainly evidences the legislative intent that in all other cases such assumption of risk shall have its former effect as a complete bar to the action." Southern R. Co. v. Crockett, 234 U. S. 725, 34 Sup. Ct. 897, 58 L. Ed. 1564. The doctrine deducible from the cases su pra, and others involving this question, decided by the Supreme Court, seems to be that the defense of assumption of risk is available to an interstate carrier under the "Employers' Liability Act" as at common law, except in the cases mentioned in section 4 of that act (Comp. St. 1913, § 8660); i. e.: "Any case where the violation by such common carrier of any statute intended for the safety of employés contributed to the injury or death of such employé." It is manifest that, even if there had been evidence conducing to prove that the wet and slippery condition of the pipe on the water column was attributable to the negligence of appellee, no doubt could exist of its right to rely upon the defense of the assumption of risk, for, according to the undisputed facts. the danger to which appellant subjected himself in attempting to make use of the wet pipe in descending from the water column was so obvious and imminent that an ordinarily prudent person could not, under the circumstances, have failed to know and appreciate it. It therefore follows that the giving of the peremptory instruction by the [3] The fact that the action was brought under the federal statute known as the "Employers' Liability Act" does not affect the question under consideration. Here there was no violation of the appellee of any provision of that statute. The evidence furnishes no proof that it negligently used in operating its railroad a defective appliance, which of itself caused the appellant's injury. The defect in the valve of the water column, being slight and of a temporary character, | trial court was not error. was repaired immediately after its discovery by appellant. Whether the defect was the result of accident or wear and tear does not appear, but the evidence fails to show that We have been unable to discover any error in the admission or rejection of evidence. For the reasons indicated, the judgment is affirmed. ty is composed of 17 local unions; and the PETE SHEERAN, BRO. & CO. v. TUCKER county union is in turn a constituent mem et al. (Court of Appeals of Kentucky. Oct. 28, 1915.) 1. APPEAL AND ERROR 173-REVIEW-DE FENSES. In an action to recover damages for breach of a contract, where defendants failed to raise the question in the court below that the plaintiff union was an unlawful combination in restraint of trade and could not recover, it was too late to raise it on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095, 1098, 1101-1120; Dec. Dig. 173.] 2. PLEADING 207-TRIAL 168-AFFIRM ATIVE DEFENSES-SPECIAL DEMURRER. An affirmative defense may not be asserted An affirmative defense may not be asserted by special demurrer, or by a motion for a directed verdict. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 511, 512; Dec. Dig. 207; Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. Cm 168.] 3. SALES 52-ACTION FOR PRICE-BURDEN OF PROOF. In an action for damages for breach of a contract to purchase tobacco, where the issue was whether a sale was effected or whether there was merely an agreement to effect a subsequent sale by written contract, the burden was on the plaintiffs. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. 52.] ber of the Kentucky State Union, which is a branch of the Farmers' Educational and Co-operative Union of America. Upon the second trial there was introduced in evidence a copy of the constitution and by-laws of the state organization, from which the following excerpts are taken: * * "We declare the following purposes: * * * To secure and maintain profitable and uniform prices for grain, cotton, tobacco, live stock and other products of the farm. As organized farmers, it is our aim and duty to attend to our own business, not to disturb or interfere with any other legitimate vocation. profession, or calling, but in attending to our own business, we shall strive to control the production, price, and distribution of every class of farm products." [1, 2] Because of these declarations, it is now contended by appellants that the Farmers' Union is an unlawful combination in restraint of trade, and that it therefore cannot recover herein. But appellants failed to raise this question in the court below either by pleading or proof, and it is too late to raise it here. They insist that the question was raised by special demurrer and by motion for a directed verdict; but an affirmative defense may not be asserted in either of these ways. [3] 2. Appellants also complain because the trial court did not assign to them the burden of proof. The real issue being, as said in the former opinion, whether a sale was effected, or merely an agreement to efthe burden was undoubtedly on the plaintiffs. fect a subsequent sale by written contract, This was not an action to recover on the check which was put up by the defendants as a forfeit, but to recover damages for breach of the contract. of 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 members of a committee appointed by and acting for the Farmers' Union of Breckenridge County to effect a sale of the tobacco grown by the members of the union, instituted against Pete Sheeran, Bro. & Co. to recover $500 as damages for failure to perform the terms of a contract which the plaintiffs claimed had been entered into by defendants and themselves, whereby they agreed to sell and defendants agreed to purchase the tobacco in question. The defense was that there was merely an agreement to effect a subsequent sale of the tobacco by a written contract to be thereafter entered into between the parties. GEARY v. TAYLOR. (Court of Appeals of Kentucky. Oct. 29, 1915.) · 1. PRINCIPAL AND AGENT 100-EXTENT OF AUTHORITY-CONSTRUCTION OF CONTRACT. several thousand acres of land and H. proA contract between the owners of a tract vided that H. was to have general supervision and control of all of such lands; that he was to see that no person entered, trespassed, or squatted upon it, or cut down, injured, or destroyed trees, etc.; that as to any persons then located upon and in possession of any portion of the land without record claim of title, but who were merely in the occupation thereof, H., if he thought it proper and prudent, was authorized to make a lease with such persons; that the rent collected should be accounted for to the owners; that timber cut and lying upon the land might be sold; that H. was to do all he could to aid the owners to get possession and control of any of the land claimed by persons located or squatted upon it without any valid claim or title: and that he should not cultivate or crop any portion of the land, or permit any person to trespass upon it, or take possession of any part thereof. Held, that this did not auCoun-thorize H. to make leases to persons other than Upon the second trial the lower court instructed the jury in conformity to the opinion of this court reversing the first judgment, and the jury found a verdict for the plaintiffs. The defendants appeal. The Farmers' Union of Breckenridge [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368373; Dec. Dig. 100.] 2. PRINCIPAL AND AGENT IZED ACTS-RATIFICATION. 166-UNAUTHOR The owners of land gave H. general supervision thereof, with authority to lease to persons then living on the land, and to sell timber cut and lying on the ground; the contract providing that he was to account for moneys collected and that he was to receive $10 a week for his services. H. made a lease to a party not then living on the land and received one month's rent. Under instructions from G., one of the owners, he took his expenses out of whatever he collected, and he was unable to state whether the rent so collected was retained by him or paid to the owners, but did state that he supposed it went in with the rest of the funds collected. It appeared that the owners other than G. never knew of the lease, or of the payment, until a suit by the lessee for failure to comply with the lease. Held, that the facts showed no ratification of H.'s lease by the owners other than G. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 627-633; Dec. Dig. 166.] 3. PRINCIPAL AND AGENT ON CONTRACTS. 145-LIABILITY A principal may be charged upon a written simple executory contract entered into by an agent in his own name within his authority, though the name of the principal does not appear in the instrument and was not disclosed; this not contradicting the writing, but only explaining the transaction. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. mm 145.] 4. EVIDENCE 459-CONTRACTS-PARTIES. Where a contract purported to be made in the name of a company, it might be shown by parol who the members of the alleged company were, and whom it was intended to bind by the agreement, especially where they had frequently done business in the name of the company. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1722, 1906-1910, 2109-2114; Dec Dig. 459.] 5. TENANCY IN COMMON 49 - LEASES RIGHTS OF LESSEE. A lease by one or more of several tenants in common is not valid as to those not joining therein, but merely makes the lessee a tenant in common with the owners. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 123; Dec. Dig. 49.] fencing which the lessee agreed to build and one-third of the rental value. [Ed. Note. For other cases, see Tenancy in Common, Cent. Dig. § 123; Dec. Dig. 49.] 7. LANDLORD AND TENANT 129-FAILURE TO DELIVER POSSESSION-DAMAGES. Ordinarily, where a lessor refuses to comply with the terms of a lease, the measure of damages in an action by the lessee is the difference between the agreed rent and the rental value of the premises. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 450-457; Dec. Dig. 129.] 8. LANDLORD AND TENANT 129 - FAILURE TO DELIVER POSSESSION-DAMAGES. Where a lease provided that it was to terminate when the land was sold, the lessee could only recover, as damages for the lessor's failure to deliver possession, the difference between the agreed rent and the rental value up to the time a judicial sale was confirmed, though a deed was not made to the purchaser for 19 months thereafter, as the sale became effective when it was confirmed. Tenant, Cent. Dig. §§ 450-457; Dec. Dig. m [Ed. Note.-For other cases, see Landlord and 129.] 9. LANDLORD AND TENANT TO DELIVER POSSESSION DENCE. 129-FAILURE ACTIONS EVI In a lessee's action for damages caused by the lessor's failure to deliver possession, the lessee was entitled to introduce evidence to show the value of the land for pasturage purposes, but not to show the probable profits which he would have realized from the use of the land. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 450-457; Dec. Dig. 129.] Appeal from Circuit Court, McCreary County. Action by J. G. Taylor against John A. Geary and others. There was a judgment for plaintiff against the defendant named, and such defendant moves for an appeal. Appeal granted, and judgment reversed. O. H. Waddle & Son, of Somerset, for appellant. Henry C. Gillis and J. B. Snyder, both of Williamsburg, for appellee. CLAY, C. Plaintiff, J. G. Taylor, brought this action originally against the Flat Rock Coal Company, the Geary Land & Development Company, and A. P. Hodges to recover damages for failure on the part of the defendants to comply with a lease. Subse 6. TENANCY IN COMMON 49-LEASE-FAIL-quently John A. Geary, Ed. Dowling, D. G. URE TO DELIVER POSSESSION-DAMAGES. One of several tenants in common, in writing to an agent of the cotenant to "make lease for that cattle range the best you can," did not assume to be the sole owner of the land, nor vest the agent with authority to make the lease in his name alone, nor did he give H. any other authority than to make a lease in the name of the co-owners; and his liability for a breach of the lease made by the agent without authority from the other cotenants was not the same as if he had been the sole owner, and where he owned about an undivided one-third interest, the proper measure of damages was the difference between one-third of the agreed rent, including one-third of the reasonable cost of Falconer, and others were made parties defendant. The return of the service of process on the Flat Rock Coal Company was quashed. The court directed a verdict in favor of Dowling, Falconer, and others, and a trial before a jury resulted in a verdict and judgment in favor of plaintiff against John A. Geary for the sum of $450. The amount in controversy being less than $500, exclusive of interest and costs, the defendant Geary has moved for an appeal. The facts are as follows: About the year 1881, the Flat Rock Coal Company, a cor poration, 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 into a contract with A. P. Hodges, of Pulaski county, by which the following authority was conferred upon him: "Second party is to have the general supervision and control of all of said lands, and see that no person enters upon any part of said lands, or trespasses or squats upon any part thereof, or cuts down, injures, or destroys or carries away any trees that may be on same, or strips the bark off any of the trees upon said land, or in any way injures any of the same. As to any person or persons now located upon and in possession of any portion of said land without any record claim of title, and who are merely in the occupation thereof, the said Hodges, if he thinks it is proper and prudent so to do, is authorized to make a lease with said persons for a term of one year, and from year to year, as may seem best for first parties. Said lease shall be made according to the form furnished to second party by first parties. "The rent of said portions of land that may be leased or rented shall be collected by second party, and second party shall account for said rents and pay the same over on the 1st day of each and every month to first parties. Such timber as may have been cut and that is now lying upon said land may be sold where it lays on the land by second party for the best cash price he can get for it, the same to be removed by the purchaser at his own cost and expense. He shall account to and pay the purchase price over on the 1st day of each and every month to first parties. Second party shall do all he can to aid the first parties in every way possible to get the possession and control of any portion of said lands that are claimed by persons who have located or squatted upon the same or any part thereof, and who have no valid claim or title thereto or any claim or title of record. Second party shall take the full supervision and control of said lands, and give his services and attention to the keeping, preservation, and care thereof. He shall not cultivate or crop any portion of said land. Second party shall not commit or permit any waste to be committed on said land. He shall not cut or allow any trees to be cut, barked, or injured, or carried away. He shall not permit any person to trespass upon said land, or take possession of any part thereof, or cut down or injure any trees, or strip or bark any of them in any manner whatever. He shall make reports as to said lands from time to time to first parties on the last Saturday in each month. For all of his services herein he shall be paid by first parties ten dollars ($10.00) per week, said payments to be made as herein provided, in proportion to the interest the first parties and each of them have in and to said land as follows." On August 3, 1909, John A. Geary sent a letter to Hodges containing the following language: And make lease for that cattle range the best you can; best not make it for too long a period, but use your own judgment." term of the lease. The contract was signed by J. G. Taylor and A. P. Hodges, "Agent Flat Rock Coal Company." The first installment of rent was paid on January 1, 1910. Shortly thereafter, Geary notified Taylor not to do the fencing or take possession of the land. It further appears from the evidence that none of the joint owners, except Geary, knew anything of the alleged lease, and had never authorized Geary or Hodges to execute the lease. At that time there was a suit pending for the settlement of the estates of John B. Wilgus, John T. Miller, and John W. Lell, and these proceedings were all consolidated for the purpose of disposing of the lands in Pulaski county. The lands were sold on September 10, 1910. The sale was confirmed on October 10, 1910, and a deed made to the purchaser on May 18, 1912. Geary says that he never intended that Hodges should go ahead and make the lease without consulting the owners, but intended that he should prepare the lease and send it back for approval, as had always been done. [1] It is clear, we think, that the above contract between the joint owners and Hodges is not sufficient to confer on Hodges the general power to make leases to persons not living on the land. While it is true that he is given general charge and supervision over the land, the contract goes ahead and specifies particularly what his duties are, and authorizes him to make leases only to persons then on the land. In view of the fact that his duties and powers are thus particularized, the terms of the contract cannot be considered broad enough to include the power to make leases to persons not on the land. [2] It remains to consider what is the effect of the contract made by Hodges, as agent of and in the name of the Flat Rock Coal Company. As a matter of fact, the Flat Rock Coal Company no longer existed. It had been divested of all title to the lands. As before stated, the proof conclusively shows that none of the joint owners, with the exception of Geary, ever authorized the making of the lease either in their names or in the name of the Flat Rock Coal Company. The proof further shows that Geary himself was not authorized in behalf of the other co-owners to do anything with respect to the land, unless with their consent and approval. But the point is made that Geary's co-owners ratified the lease by accepting and retaining the rent which plaintiff paid. It may be con- | 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 says that he supposes it went in with the rest of the little funds that he collected. On being asked, "Did you keep it yourself or pay it to the owners of the land?" he answered: "I could not say. Under the instructions I had from Mr. Geary, I was to take my own expenses out of whatever was paid on the property; but whether or not that $25 went to Geary, or I used it, I could not say." This is all the proof on the question of ratification. It does not show that Geary's co-owners, with knowledge of the fact that the lease had been made and the $25 had been paid thereon, received and retained any portion of that sum, or derived any benefit therefrom in any settlement which they made with Hodges, the agent. On the contrary, the evidence shows that the co-owners, other than Geary, never knew of the lease in question, or of any payments made thereon, until the summons was served on them in this case. That being true, the evidence fails to show ratification by them. The lease not having been authorized or ratified by Geary's co-owners, it follows that it is invalid so far as they are concerned. [3, 4] What is the effect of the contract so far as Geary is concerned? The contract purports to have been made by the Flat Rock Coal Company, as principal, by Hodges as its agent. It is the rule that a principal may be charged upon a written simple executory contract entered into by an agent in his own name within his authority, although the name of the principal does not appear in the instrument and was not disclosed. Ford v. Williams, 21 How. 287, 16 L. Ed. 36; Eastern R. Co. v. Benedict, 5 Gray (Mass.) 561, 66 Am. Dec. 384; 2 C. J. 683. This is true, notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, for it is held that such proof does not contradict the writing, but only explains the transaction. And where, as in this instance, the contract purports to be made in the name of a company, we see no reason why it may not be shown by parol who were the members of the alleged company and whom it was intended to bind by the agreement, in view of the fact that the co-owners of the land company frequently did business with respect to the land in question in the name of such company. We therefore conclude that the contract, though not binding on the other tenants in common, because not authorized by them, is binding on Geary, who did authorize it. 118 Pac. 202, Ann. Cas. 1913D, 1163, and note; Zeigler v. Brenneman, 237 Ill. 15, 86 N. E. 597; 7 R. C. L. p. 878, § 73. In authorizing Hodges to make the lease, Geary did not assume to be the sole owner of the land, nor did he vest Hodges with authority to make the lease in his name alone. His letter to Hodges cannot be construed to give Hodges any other authority than to make a lease in the name of the co-owners. The effect of the contract in question, therefore, is the same as if Hodges had purported to make the lease in the name of Geary and the other co-owners. Since the lease was effective only as to Geary's interest in the property, Geary's liability for a breach thereof is not the same as if he were the sole owner of the property, since all that plaintiff has been deprived of is the right to occupy and use the land for pasturage in conjunction with the other co-owners. In a case like this, it is very difficult to determine the precise measure of damages. Ordinarily, where the lessor refuses to comply with the terms of a lease, the measure of damages in an action by the lessee is the difference between the agreed rent and the rental value of the premises. Devers v. May, 124 Ky. 387, 99 S. W. 255, 30 Ky. Law Rep. 528. By its terms the lease was to terminate when the land was sold. As before stated, the land was sold on September 10, 1910. The sale was confirmed on October 10, 1910, though a deed was not made to the purchaser until May 18, 1912. Manifestly, the sale became effective, not when the deed was made, but when the sale was confirmed. It further appears that the agreed rent was for the whole of the premises, and not for Geary's portion thereof. Geary owned about an undivided one-third interest in the land. our opinion, the proper measure of damages is the difference between one-third of the agreed rent, including one-third of the reasonable cost of fencing, and one-third of the rental value of the land up to October 10, 1910. In determining the rental value of the land, plaintiff will be permitted to introduce evidence tending to show its value for pasturage purposes, but will not be permitted to show the probable profits which he would have realized from the use of the land. Kelly v. Davis, 8 Ky. Law Rep. 58; 24 Cyc. 922. In Since the trial court assumed in its instruction that Geary was responsible for all damages following the breach of the rental contract, it follows that the instruction and judgment based thereon are erroneous. Wherefore the appeal is granted, and the judgment reversed, for a new trial consistent |