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RELATING TO LAND-PLEADING.

convey land within the statute of frauds was It will be presumed that a contract to reoral unless the pleader alleges it was in writing.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. 158.]

3. FRAUDS, STATUTE OF 129-PART PERFORMANCE.

In Bracy v. Bracy, 12 Bush, 153, it was 2. FRAUDS, STATUTE OF 158-CONTRACTS said that under this section, when the amount in controversy is more than $50, the pleadings must be in writing; and clearly it is the proper practice when the amount in controversy exceeds $50, as in this case, to file a petition in the manner and form required by section 90 of the Civil Code; but manifestly, where the writing, or claim, or account that is the basis of the action is filed with the magistrate and summons issued thereon, the judgment is not to be treated as void merely because the plaintiff failed to set out in a petition his cause of action. The police court had jurisdiction of the subject-matter of the action and the parties, and the failure to file a petition on the note was not substantial error, although if the defendant in the suit had moved the court to require a petition to be filed, the court should have done so.

[2] Proceedings in these inferior courts are not to be judged by the same rules of strictness that would apply to suits in the circuit court, and unless it appears that the rights of the parties have been prejudiced by the failure to observe correct rules of

Where a contract for the reconveyance of land was oral, a subsequent tender of a deed by the grantee was not enough to take the case out of the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 310-312, 314, 318-320, 322, 323, 325, 326; Dec. Dig. 129.]

Appeal from Circuit Court, Hopkins County.

Action by Thomas E. Finley against Ella Todd. From a judgment for plaintiff, defendant appeals. Affirmed.

Gordon & Hopewell, of Madisonville, for appellant. C. J. Waddill, of Madisonville, for appellee.

CLAY, C. On December 16, 1903, Thomas practice, errors in this respect will be treat- E. Finley and wife, in consideration of $400 cash, sold and conveyed to Ella Todd, by ed as immaterial. It seems that the judgment on this note was entered nine days aft- deed of general warranty, a lot in Madisonment on this note was entered nine days aft-ville. On October 19, 1905, Finley erected for er the service of summons, when it should not have been entered until ten days afterwards. But this premature judgment was not a void judgment. The rendition of a judgment before a case stands for trial is not ground for enjoining the collection of the judgment, and in this case it was merely a clerical misprision to be corrected by a mo

tion made in seasonable time in the court rendering the judgment. Webber v. Webber,

1 Mete. 18; Smith v. Mullins, 3 Metc. 182: Com. v. Caudill, 121 Ky. 537, 89 S. W. 535, 28 Ky. Law Rep. 520.

[3] Nor does the fact that the note was not [3] Nor does the fact that the note was not assigned in writing by Jones to Alexander furnish any reason for granting the relief

sought in this action. The defendant, if he desired so to do, should have raised this question in the police court.

Wherefore the judgment is affirmed.

TODD v. FINLEY. (Court of Appeals of Kentucky. Nov. 4, 1915.) 1. VENDOR AND PURCHASER 175-ACTIONS FOR PRICE-DEFENSES.

Where there was no eviction and the grantee is in the undisturbed possession of the property under an executed contract, he will not be relieved from payment of the price by a mere showing of a defect in title coupled with the insolvency of the grantor, unless there is palpable danger of immediate eviction and ultimate loss without legal remedy and the grantee uses due diligence to bring before the court the adverse claimants.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 360-363; Dec. Dig. wn 175.]

grantee a house on the lot in question and took from her a note and mortgage on the premises to secure the contract price of $600. The grantee made certain payments on the note, which left due thereon $420, with inter1912, Finley brought this suit against Ella est from January 5, 1909. On September 6, Todd to enforce the mortgage lien. Defendant presented two defenses; one based on a breach of warranty of title and insolvency of plaintiff, and the other based on an agreement by her to reconvey the property to chase price and the amount she had paid on plaintiff upon payment by him of the purthe mortgage. These defenses were held insufficient, and the answer and counterclaim stricken from the record, and judgment rendered enforcing plaintiff's lien. Defendant appeals.

[1] It is the well-settled rule in this state that where there has been no eviction, but the grantee is in the undisturbed possession of the property under an executed contract, relief against the payment of the purchase money will not be decreed upon a mere showing of a defect in the title, coupled with the insolvency of the grantor. In such a case, relief will not be granted unless there is palpable and threatening danger of immediate eviction or ultimate loss without legal remedy, and the grantee uses due diligence to bring before the court the adverse claimants from whom the danger is apprehended. Vance v. House, 5 B. Mon. 540; Simpson v. Hawkins, 1 Dana, 309; Taylor v. Lyon, 2 Dana, 276; Payne v. Cabell, 7 T. B. Mon.

202; Denny v. Wickliffe, 1 Metc. 226. While Company against the Crittenden Record| plaintiff alleges that defendant was without Press and others. From a judgment for a title and specifies wherein his title is de- defendants on their counterclaim, plaintiff fective, and by amended answer alleges his appeals. Reversed and remanded, with diinsolvency, she did not attempt to bring the rections.

adverse claimants before the court, nor did A. C. & V. Y. Moore and John A. Moore, she allege facts tending to show a palpable all of Marion, for appellant. J. W. Blue, and threatening danger, of immediate or ul-Jr., of Marion, for appellees. timate loss, without legal remedy. That being true, her answer is insufficient.

[2, 3] As a second defense to the action, defendant pleaded a compromise agreement by which she, in consideration of the payment to her of the purchase price and the amount she had paid on the mortgage, agreed to reconvey the property to plaintiff. In plead

Company is a corporation engaged in the business of selling plans for conducting au1911, it entered into a contract with S. M. tomobile popularity contests. On July 1, Jenkins, whereby it sold him the right to put on a contest. As a part of the contract,

CLAY, C. The American Manufacturing

ing a contract within the statute of frauds, it agreed to furnish him an automobile, a the pleader must allege that it is in writing; book of instructions and other literature, and otherwise it is presumed to be oral. Byassee book of instructions and other literature, and v. Reese, 4 Metc. 372, 83 Am. Dec. 481; Hock-to increase the circulation of his newspaper and the revenue therefrom. It also gave er v. Gentry, 3 Metc. 463; Smith v. Fah, 15

B. Mon. 443; Smith v. Theobald, 86 Ky. 141, him a bond providing that, if his gross sales 5 S. W. 394. Clearly a contract to convey were not increased $4,800 the next year, it or reconvey real estate is within the stat- would supply the deficiency to the extent of ute, and unless in writing cannot be enforced. 15 per cent. of that sum. In consideration of As neither plaintiff nor defendant was bound this undertaking on the part of the American Manufacturing Company, Jenkins executed by the oral contract, the subsequent tender of a deed by the defendant was not sufficient and delivered to the company ten promissory notes, for $150 each, and one for $100. to take the case out of the statute. Newburger v. Adams, 92 Ky. 26, 17 S. W. 162, 13 With the exception of the three notes sued Ky. Law Rep. 339; Asher v. Brock, 95 Ky. on in this action, all the notes were sold and 270, 24 S. W. 1070, 15 Ky. Law Rep. 631; transferred to bona fide purchasers for value Myers v. Brown, 110 S. W. 402. Judgment affirmed.

AMERICAN MFG. CO. v. CRITTENDEN
RECORD-PRESS et al.

(Court of Appeals of Kentucky. Nov. 5, 1915.)
1. CONTRACTS 108-LEGALITY OF OBJECT-
FRAUD-EFFECT.

An advertising contest, involving popularity voting, which is based on deceitful methods of maintaining interest, by arbitrarily rating contestants, and by false statements as to nominations, number of votes received, etc., is fraudulent, and a contract based thereon is against public policy, so that no cause of action can arise from it, or its breach, but the parties will be left in statu quo.

[Ed. Note.--For other cases, see Contracts, Cent. Dig. §§ 498-503, 505, 507-511; Dec. Dig. 108.]

2. BILLS AND NOTES

SONS IN PARI DELICTO.

114-FRAUD-PER

Where defendant, in an action on notes given in consideration of a fraudulent popularity contest contract, did not know of its fraudulent nature when the notes were given, and might therefore escape liability, not being in pari delicto with the plaintiff, but failed to object to the fraud until three months after the contest was begun, he became a party to the fraud, and cannot counterclaim for the amount of notes assigned to innocent purchasers, which he was compelled to pay.

without notice, who brought suit thereon and recovered judgments against Jenkins. This action was brought by the American Manufacturing Company to recover on the three notes which had not been sold. Jenkins filed an answer and counterclaim, pleading, among other defenses, that the contest scheme was fraudulent and contrary to public policy, and that the company, with knowledge of the fraudulent character thereof, had transferred the notes to bona fide purchasers for value and he had been compelled to pay the same. He asked that the petition be dismissed, and that he recover over on his counterclaim. On final hearing, the plaintiff's petition was dismissed, and defendant given judgment in accordance with the prayer of his answer and counterclaim. The American Manufacturing Company appeals.

that shortly after the execution of the conIn addition to the above facts, it appears tract the company mailed to Jenkins the book of instructions and other literature. Some weeks later they sent him an automobile, which was injured while being taken from the car. Jenkins instituted the contest and proceeded to conduct it. He occasionally sent to the manufacturing company certain reports indicating the progress of the contest. The contest continued through Au[Ed. Note. For other cases, see Bills and gust, September, October, and November. Notes, Cent. Dig. § 224; Dec. Dig. 114.] On December 29, 1911, he wrote the company Appeal from Circuit Court, Crittenden that he had been advised by counsel that County. the scheme was fraudulent. He then disAction by the American Manufacturing continued the contest and put on a contest

of his own. The book of instructions pro- | credits given to each contestant and give every vides that the person conducting the contest shall make a list of 200 names to be sent to the American Manufacturing Company. Thereupon the company prepares a voting register, which is sent to the person conducting the contest. When the voting register is returned, the person conducting the contest is directed to send to the persons on the list the following letter:

"Dear Miss: We are notifying you that you were nominated as a contestant in our piano [or automobile] contest, and No. was as signed to you. Your friends have cast votes to your credit, which shows that they are rooting and working for you. If you will ask five or ten more of your friends to subscribe to our paper, or patronize our jobbing and advertising department, you will be able to increase your standing by 2,500 votes for each subscription sold. Get busy. No publicity. Every body's name will be held secret. Boost your number and watch your standing every week in our paper.

"Yours truly."

other contestant a like number of votes, so that complimentary votes, thus making it equal and each person will have an equal amount of those fair to every person connected with the contest. "Now, when you make up the complimentary votes at the end of the fifth month, always make a special sale, offering on a certain day say 100,000 votes for a dollar, and, after all the votes have been recorded in the register, take the contestant's column and pick out the amount of complimentary votes as aforesaid. The reason of giving these tremendous bonus of votes. on this special sales day is to offset the big jump that may be caused by equalizing the complimentary votes, and gives a good reason for the rapid jump, as every $10 purchase at that time would increase the standing by 1,000,000 votes. "If they don't reply to that, or record votes before that seventh day, then take any lady or man, who comes into your store, and tell them that somebody has been casting votes to the number which you have just eliminated, and as one of your signs reads that the contestants number from 1 to 200, and if they are not a contestant, to cast votes for one of the above numbers, that is the reason why somebody has been casting votes for that particular number, and that number being in the lead, and your not

The next week he was directed to send the having any contestant for it is the reason why following letter:

"Date

"Dear Miss: We wish to notify you that you have been nominated as a contestant in the piano [or automobile] contest, and No. — was assigned to you. Your friends have cast votes to your credit, which brings you in the lead. If you will have five or ten more of your friends to patronize our store and make their purchases here, they will receive votes, which they can bring to you or have them cred ited to your number, and you will have an excellent opportunity of winning the piano [or automobile]. As we are contemplating giving away weekly prizes and monthly prizes, you will have an opportunity of winning some of these. We are also issuing trading books good for twelve months' trade at our store, which will entitle the contestant to 50.000 votes for each $5 deposited in advance. These books will be put on sale at the sixth week of our contest and not before. Call and get particulars. Watch your standing by number on our bulletin board in the window and in the newspaper each week. Boost your number. No publicity. Get busy. Everybody's name is secret. We wish you suc

cess.

"Yours truly."

you wish to give them that number, which will put her way up in the lead, and you will find, who will refuse to enter the contest at this stage Mr. Merchant, that there is not a single person of the game, while, if you offered her only 2,000 votes to start with, she would think that the others were so far ahead that she would have no chance at all, and as all of these votes that she will get are actually complimentary it really makes no difference, because it will be equalized at the end of the fifth month.

"Mr. Merchant, don't use any ballot box. Don't publish the contestants' names, as this is one of the methods that we have in getting the contestants active. Only publish the numbers assigned to them, so that no person can come in and say, 'I don't want to run; take my name out of the paper.' By our method she must run, whether she likes it or not, and even if she comes in and says, 'I don't want to run as a contestant,' you simply tell her that the contest manager, Mr. Howard, says that we must accept the votes cast to that number, and, if she should win the piano, why, she can give it away, if she doesn't want it. Carry all contestants in register, active or inactive.

"As a matter of fact this contest is absolutely made to sell goods, and not to waste time in the operation of the contest by bookkeeping, giving out votes, or counting votes. You don't have to count their votes at all. We allow the contestants themselves to count their votes, and

For the purpose of keeping the contestants interested, and as near equal as possible, the book contains the following direc-write their number and amount of votes on top

tions:

"The way we do it is that, after we have recorded and transferred the votes on that recording date, we run over the standing of contestants by thousands, and, as there are eight on a page, it is a very simple process to find out who stands the highest. When you have the highest number, then credit in the space for that week each contestant who is more than 5,000 votes below the leader with any number that comes into your head which will bring her within the 5,000 limit. This 5,000 limit is for the first six weeks of the contest, after which allow a 10,000 votes limit, and after the third or fourth month of the contest, 100,000 and 200,000 votes limit. It is always advisable to put six or ten who are absolutely inactive, and who have brought in no votes at all, in the lead, say anywhere from 1 to 100, as you will see from the way we keep the register. Always place the letter 'C' in front of those complimentary votes, so that at the end of the fifth month of your contest you can sum up all the

slip only. That saves you a lot of labor and trouble. Votes really don't mean anything to you, and, as a matter of fact, each contestant believes that you are going to take her package of votes and count them, and she will try her very best to get the proper amount down.

"Where one or two contestants have accumulated during the week say two or three million votes in advance of everybody else, in order to keep the contestants as close as possible, and to prevent one contestant from causing everybody else to lose interest, we advise you that, when they bring in their votes the following week, give them, instead of credit for the entire amount of votes, a receipt, one for each week, say for a certain equal proportion, good and available during the contest, and the receipts can only be voted on the week for which they are dated. A receipt of this character, 'Good for 30,000 votes May 7, 1911,' 'Good for 30,000 votes May 14, 1911,' and so on until every one of the votes are used up. You can explain to the party as follows: "That it takes too long

to count the votes, and if you have to record | action can arise. Courts will not authorize all the votes that day it would be impossible to a recovery by either participant, nor will they check up the enormous amount of votes that he has got. Therefore you will give him his re- restore to either anything that he may have ceipts, and that you will credit him with at paid to the other. The parties will be left least 30,000 this week, and if you can use more exactly where they have placed themselves. you will call in more receipts the following week Smead v. Williamson, 16 B. Mon. 492; Chapuntil you can get them all checked up.' In every case we have found this will work. The man v. Haley, 117 Ky. 1004, 80 S. W. 190, contestant is satisfied, because he has receipts, 25 Ky. Law Rep. 2182, 4 Ann. Cas. 712; which will be credited during the contest, and Howe's Ex'r v. Griffin's Adm'r, 126 Ky. 373, you won't have to give enormous complimentary votes in order to bring each contestant within a 103 S. W. 714, 31 Ky. Law Rep. 784, 128 Am. reasonable distance of each other, and you and St. Rep. 296. the other contestants are all satisfied, as it doesn't appear in the standing."

[1] From the foregoing it will be observed that the persons who are notified of their nomination are led to believe that they have been nominated and voted for by some of their friends, when, as a matter of fact, they are placed in nomination and given complimentary votes by the person conducting the contest. It further appears from the plan that persons who take no interest and are inactive are placed in the lead by giving them complimentary votes. Not only that, but the plan provides for the elimination of inactive contestants and the transfer of their votes to others, who are led to believe that the votes have been actually cast by their friends. People who are actually in the lead are led to believe that they have fallen behind, when, as a matter of fact, the contestants who have passed them have acquired their new positions, not by bona fide votes, but by compli

[2] But defendant insists that he and plaintiff are not in pari delicto, and that the above rule has no application to him. It is argued that he falls within the exception laid down in the case of Anderson's Adm'r v. Merideth, 82 Ky. 564, where the court said:

"When there is imposition, duress, oppression, threats, undue influence, taking advantage of necessity or weakness, the party thus placed at disadvantage, although participating in the fraud, may be relieved in a court of equity as against his co-wrongdoer."

The point is made that defendant did not receive the book of instructions until some time after the notes were executed; that he testified that he carried out the instructions only in so far as he thought they were fair; and that, upon being advised by counsel that the scheme was fraudulent, he immediately notified the company. It is clear that he knew of the plan of conducting the contest at least three months before he repudiated it. During that time he never complained mentary votes entirely. Another part of the of the plan, but complained only of the fact scheme is not to record the votes of the lead- that the results were not satisfactory. ing contestants, but to give them mere is certain that defendant was not a victim receipts, and thus keep in the race the other of duress, oppression, threat, or undue influcontestants, who if they knew the facts, ence. would probably cease their efforts or with-been the victim of imposition, and if he had He may, in the first instance, have

draw from the contest.

We regard further discussion of the plan as unnecessary. It speaks for itself. It is founded on deceit and misrepresentations. It is no defense to all this to say that in the end the complimentary votes are equalized and the contestants are put on the same footing. That may be true, but all during the contest they have served their purpose by deceiving the contestants and the public in general. We do not doubt that voting contests may be fairly planned and fairly conducted; but a plan like this, that is based on falsehood and deceit, and operates as a fraud, not only on the contestants themselves, but on the public in general, who, relying on the misrepresentations, are led to come to the assistance of their friends and spend money unnecessarily in their behalf, should not receive the sanction of the courts, and any contract based on such a fraudulent scheme is in violation of good morals, inconsistent with honest purposes, against public policy, and will not be countenanced by the law, or by the tribunals which administer the law. From such a foundation no cause of

It

acted promptly and repudiated the transaction there might be some reason for holding that he was not in pari delicto with plaintiff. He could not carry on the contest for at least three months, and thus participate in the illegal scheme, and then claim that he was not a party to it. We therefore conclude that neither of the parties is entitled to any relief.

Judgment reversed, and cause remanded, with directions to enter judgment in conformity with this opinion.

RICHARDSON v. COMMONWEALTH.

(Court of Appeals of Kentucky. Nov. 17, 1915.) 1. CRIMINAL LAW 534, 678-ELECTION BETWEEN ACTS-WHAT CONSTITUTES.

Where on a trial for breaking into a railroad depot which had been twice broken into the first witness for the commonwealth directly testified as to accused's possession of flour stolen from the depot the second time it was

broken into, the commonwealth thereby elected | depot from a place where it had been concealed to try accused for such breaking.

to accused's home, knowing that it had been the offense of breaking into the depot, or chargstolen, but who was in no way connected with

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1202-1205, 1222-1224, 1580-ed therewith, and who did not even know that 1583; Dec. Dig. 534, 678.]

2. CRIMINAL LAW 369-EVIDENCE-OTHER OFFENSES.

Ordinarily, evidence of a different offense from that for which accused is being tried is incompetent, but there are exceptions to this rule applicable to cases in which it is necessary to establish identity, guilty knowledge, intent, or motive for the crime, or when other offenses are so interwoven with the one being tried that they cannot well be separated from it, in the introduction of relevant and competent testimony, or when the independent offense was perpetrated to conceal the crime for which accused is on trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. 369.1

3. BURGLARY 41-EVIDENCE-INTENT OR MOTIVE.

On a trial for breaking into a railroad depot with intent to steal, the mere breaking and the taking of goods from the depot proves beyond doubt the motive actuating the commission of the crime.

[Ed. Note.-For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. 41.] 4. CRIMINAL LAW 517-CONFESSION-EVIDENCE-INTENT OR MOTIVE.

Where accused, in one conversation with a witness for the commonwealth, confessed that he broke into a railroad depot in July and again in August, the commonwealth on his trial for the offense committed in August was entitled to prove the entire confession and conversation, and, in corroboration thereof, to introduce evidence as to the finding of goods stolen on each occasion in or near accused's house, for the purpose of establishing his identity as one of those who broke into the depot.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1146-1156; Dec. Dig. 517.j

5. CRIMINAL LAW

673-RECEPTION OF Ey

IDENCE-LIMITING EVIDENCE.

Where, for the purpose of establishing accused's identity as one of the persons who broke into a railroad depot, the court admitted evidence of his confession that he broke into such depot at a time other than that for which he was on trial, and evidence of the finding in and near his house of goods stolen on such occasion, it should have admonished the jury that they should not consider such evidence as conducing to prove his guilt of the breaking for which he was being tried, but, in connection with all other evidence, only for the purpose of determining whether or not he had a motive for the commission of the crime charged, or of identifying him as a participant therein.

[Ed. Note. For other cases. see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. m673.]

6. BURGLARY 41-EVIDENCE-WEIGHT AND SUFFICIENCY.

On a trial for breaking into a railroad depot with intent to steal, evidence held sufficient to support a conviction.

[Ed. Note. For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. 41.] 7. CRIMINAL LAW 507-TESTIMONY OF "ACCOMPLICE"-CORROBORATION. A person who at accused's request aided accused in removing flour stolen from a railroad

it had been broken into, until told by accused at the time of the removal of the flour, was not an "accomplice" to the offense of breaking into the depot, so as to require that his testimony be corroborated, as an "accomplice" is one of several equally concerned in the commission of a felony.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. 507.

For other definitions, see Words and Phrases, First and Second Series, Accomplice.]

Appeal from Circuit Court, Estill County. Jonah Richardson was convicted of break

ing into a railroad depot with intent to steal, and he appeals. Reversed.

Clarence Miller and R. W. Smith, both of Irvine, for appellant. Jas. Garnett, Atty. Gen., and Robert Caldwell, Asst. Atty. Gen., for the Commonwealth.

SETTLE, J. The appellant, Jonah Richardson, was separately tried in the court below under a joint indictment charging him, Harlow Richardson, Bertie Richardson, and Arch Harris with the crime of breaking into the depot of a common carrier, with intent to steal therefrom. The trial resulted in his conviction; the verdict of the jury fixing his punishment at confinement in the penitentiary not less than two years nor more than two years and a day. From the judgment entered upon that verdict, he prosecutes this appeal. The errors assigned in the motion and grounds for a new trial, and for the reversal of the judgment, are: (1) The admission by the trial court of alleged incompetent evidence; (2) its failure to give a peremptory instruction directing a verdict of acquittal; (3) failure to properly instruct the jury.

It appears from the bill of evidence that in August, 1914, some person or persons, at night, forcibly and feloniously broke into the depot of the Louisville & Nashville Railroad Company at West Irvine, and did steal, take, and carry away therefrom several sacks of flour and other merchandise of value. The commonwealth's principal witness was one Luther Lunsford, who testified, in substance, that some days after the breaking into the depot he, at the request of appellant, went with him from the latter's home, five or six miles from West Irvine, to the residence of his (appellant's) brother-in-law and codefendant, Arch Harris, near the West Irvine depot, from which appellant and Harris, after nightfall, took the witness to a ravine in a nearby forest, and there showed him several sacks of flour which appellant said he and his brothers, Harlow and Bertie

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