(273 S.W.)

tion of Sam to construct a building only became final and absolute if he commenced the construction within that time. It was only conditional up to that time, since if he failed to so commence his building then Jimmy had the privilege of carrying out his lease with Johnson & Jones and to ignore altogether his subsequent lease with Sam. The language also provides that, upon the payment of the $600 by the lessee, then the lessor should insure the building to the extent of $600, which necessarily could not be done until the construction of the building had

body the true contract between the parties | $600 by him and the corresponding obligain providing for a forfeiture of the lease upon his nonpayment of rent, contrary to what he said was the actual contract, and which he averred was inserted in the contract by mistake. He procured a temporary restraining order in that case, and afterwards Sam brought another action against Jimmy, seeking to restrain him from attempting to occupy the property, and he also obtained a restraining order in that case, and each of those orders were coexistent and remained in force until the final disposition of the two actions, which were consolidated and heard together. Upon final submission the been advanced to the point where that court sustained the prayer of Jimmy's petition and enjoined Sam from molesting him or in any wise interfering with his occupying the premises, and dismissed Sam's petition, from which judgment he prosecutes this appeal.

It readily will be seen that the only two questions in the case are (1) the proper interpretation of the contract; and (2) if it provides for the payment by Jimmy of the $600 within two weeks after the commencement of the construction of the building by Sam, then was the forfeiture provision agreed to and properly inserted in the contract?

amount of insurance could be obtained on it. The two acts, i. e., that of payment and insurance were to be simultaneous, since without the insurance Jimmy would be without any security whatever for his advance payment. Furthermore, if Sam's construction be the true one, then the $600 would become due with the corresponding penalty of forfeiture immediately upon the spading of the first shovel of dirt by Sam, although he postponed that act until the last day of the two weeks. We are confident that the parties contemplated no such effect, and that what they had in mind, and what a fair construction of the language sustains, is, that when the construction of the building had progressed to the point where Sam could procure the $600 insurance thereon, as provided in the contract, then he had the right to receive payment of that sum from Jimmy, and not till then.

Two forfeitures were provided for in the contract. One was that the lessor should commence the construction of his building within two weeks from the date of the lease contract, or forfeit his right thereto. The other was that, if the construction of the building was commenced within the time provided, then the lessee would pay to the lessor $600 advance rent, but he should simultaneously receive as security therefor the benefits of the insurance provided for. One of them was made applicable to the lessor and the other to the lessee, but the latter

The court did not base its judgment upon a construction of the contract, but found that the forfeiture clause was inserted therein by mistake and reformed the contract accordingly. If it were necessary to base our opinion upon the finding of the court in that respect, it would not be a difficult task to do so under the proof in the case; but we are thoroughly convinced that a true construction of the contract did not provide for the payment of the $600 by Jimmy until Sam procured that amount of insurance on his building, hence it will be unnecessary to review the court's finding on the issue of fact. [1] Prefacing what we shall say concerning the terms of the lease contract, it should first be stated that forfeitures are not favored in the law, and if the employed language from which they are supposed to emanate is susceptible of two constructions, one of which would sustain the forfeiture could not be compelled to pay the advance and the other deny it, the latter interpretation will be adopted with, perhaps, some few exceptions of which this class of case is not one. That general rule is universally recognized and applied, and we will content our-pretation. If, however, it were otherwise selves by referring to only one late case from this court, which is Andrew Hogg & Pluto Coal Co. v. Forsythe, 198 Ky. 462, 248 S. W. 1008. With that rule in mind, we will now take up for interpretation the above excerpt from the contract.

[2] It will be observed that there is no express provision for the payment of the $600 by the lessee (Jimmy) immediately upon the expiration of the two weeks within which the construction of the building should be commenced, but the obligation to pay the

rent until the former was prepared to indemnify him, as provided in the contract. Indeed, it would require a strained construction to give the language any other inter

and the language under consideration was equally as susceptible of the construction contended for by Sam as it was for the one contended for by Jimmy, then under the rule, supra, it would be our duty to adopt the latter interpretation. The judgment of the court, having carried into effect our conclusions, should be affirmed, although he may have based it upon a different ground, under a rule of practice everywhere acknowledged and applied.

Wherefore the judgment is affirmed.

(273 S.W.)

neighbor boys while escorting a young lady | which had ever been paid to her, and which home, which trouble so angered this youth amounted to $210. Appellant appeals from that he used considerable efforts to procure this supplemental judgment and makes comfor himself a gun. The record impresses us plaint in this court that the additional alwith the idea that it was high time that lowance of $30 was not authorized or sussomething was being done to control this tained by the pleadings or proof; that the young man to the end that he might learn court erred in giving appellee judgment for the discipline of life in order that he be fit- the back installments of $10 a month and ted for the duties of manhood. During these in awarding to her the house in question. two years appellee raised no question about He does not seem to make any other objecthe grandfather having the control of the tion to the judgment, and we may say in boy, and, with the exception of a few nickels passing that we believe the court exercised and dimes which she gave her son from the soundest discretion in making the orders time to time, she spent nothing for him. it did with reference to the custody of the She says, however, that she was protesting child. all along about the boy being kept out of school, and was earnestly insisting that his grandfather cease spoiling him. In April, 1923, appellant moved the lower court to modify the judgment herein before referred to by vesting in him the legal custody of the boy, by discontinuing the award of $10 a month for his maintenance, and by restoring to him the possession of the house and furniture awarded appellee in that judgment. Appellee made a counter motion in which she asked that this residence and these household goods be given to her for life. During these two years since the judgment had been rendered, appellee had not lived in this house. For a portion of the time it had been vacant, and the rest of the time she has rented it out.

[1] After a full hearing, the court entered a supplemental judgment, reawarding the custody of the boy to appellee for the summer of 1923, during which time he ordered the boy then well passed 14 years of age, to seek employment, keep himself employed, and to report to the court from time to time concerning his actions. He further adjudged that in the fall of that year the boy should be placed in a school, the name of which does not appear in this record, and that thereafter the custody of the boy should be in the principal of that school. Although the parents and grandparent were given the right to visit and see the child, they were prohibited from interfering with or obstructing the attendance of the boy at the school. The court also awarded appellee the sum of $30 a month thereafter for the maintenance of the boy, with the provision that when he started in the school in the fall this allowance should be adjusted in order to take care of his tuition and board, and he required the appellee to keep a full itemized account of her expenditures of this allowance, and to make a report concerning the same to the court from time to time. He further adjudged the appellee the right to continue in the occupancy of the house, with the power of leasing the same. The household furniture was divided between the parties, and appellee was given a judgment for the accrued installments of $10 a month allowed in the original judgment, none of

[2] In so far as the house and the judgment for the back installments are concerned, we concur with appellant in his statement that the proof did not authorize such judgment. The award of $10 a month in the original judgment was plainly for the support and maintenance of the child. However, appellee never supported the child during the time in question, and his support was kept up by the grandfather and father. Although not done in the manner directed by the court, yet appellant had plainly discharged his obligation under that judgment, and he could not be required to pay again for the maintenance he had already supplied. Therefore, in so far as the supplemental judgment awarded appellee the sum of $210 for back installments, it is erroneous, and is reversed.

[3] With reference to the house, the original judgment awarded appellee the occupancy and benefit of this house "for the present" and "for the benefit of" herself and child. That judgment also awarded her $1,500 as permanent alimony, and a reading of it plainly convinces us that the court gave her the house in order that she might there make a home for herself and child. This she has never done and therefore she should not have the right to continue to hold the house. The record shows that she is amply able to take care of herself. She has been awarded a large sum of money as permanent alimony. The maintenance of the child has been taken care of, and we can see no fair reason why she should be continued in the use of the home, which in fact she does not use but rents out. In permitting appellee to retain and rent this house, the court has really given her, in addition to the permanent alimony awarded her, an additional monthly allowance by way of the rent which she realizes, and which in this case is about $10 a month. Therefore, this part of the judgment is also reversed, with instructions to return the possession of the house to appellant.

[4, 5] However, in so far as the allowance of $30 a month for the maintenance of the boy is concerned, the judgment must be affirmed. Appellant does not complain that he is unable to pay this sum, and from the record herein we believe it is a very reasonable

are its wards, upon its own motion made the order it did. We therefore conclude that in this particular the judgment of the lower court is correct and should be affirmed.

Judgment of the lower court is therefore reversed, in so far as it awarded appellee a judgment for the back installments of $10 a month not paid, and the possession of the house, and in all other respects it is affirmed.

sum for the maintenance of the child, considering the circumstances of the parties. It is equally proper that the father should pay for the tuition and board of this boy when at school. It is urged, however, that there is no pleading in the record on which to support this increased allowance. In the case of Shallcross v. Shallcross, 135 Ky. 418, 122 S. W. 223, the court had before it the question whether or not the lower court, in the absence of a formal motion or pleading, could on its own motion enter an order concerning the custody of an infant child in supplemental proceedings after judgment for divorce had been entered. The court, after discussing the effect of section 2123 of the Kentucky Statutes, and holding that it was only in addition to, and not in restric-. Licenses 28-Statute imposing license tax on corporations held intended to operate tion of, the inherent powers of an equity prospectively only. court, said:

GREENE, Auditor, v. FRANKFORT DIS-
TILLERY CO., Inc.

(Court of Appeals of Kentucky. May 29, 1925.
Rehearing Denied July 14, 1925.)

Acts 1906, c. 22, art. 11, imposing annual license tax based on capital stock of corporations employed within state, was intended to operate prospectively only, and hence corporation engaged in distillery business, which in 1917 paid tax provided for by that act, was not required to pay additional fee for that year under Acts (Sp. Sess.) 1917, c. 5, imposing special tax on distilleries.

2. Statutes 263-No law held retroactive, unless such intent clearly expressed or necessarily implied.

3. Taxation 58-Taxing statute cannot be construed prospective as to some and retroactive as to others.

"Exercise of the power possessed by a court of equity with respect to the custody of an infant in such a case is not therefore dependent upon action upon the part of either of the divorced parents, or upon a réservation in the judgment of authority to subsequently change or modify it. The court need not have waited for either parent to take the initiative, but possessed the power to modify, upon its own motion, the previous judgment as to the custody of the infant, upon the state of facts appearing in the response and established by the proof. We do not mean to say that the cirNo law can be held retroactive, unless such cuit court should at any time enter a judg-legislative intent is clearly expressed or necesment, or change one rendered at a previous sarily implied. term, as to the custody of a child without notice to the parents. In this case, however, both had notice. It does not lie in the mouth of appellant to complain that he was not served with a written notice of the proceedings resulting in the modification of the original judgment as to the custody of his son; for he instituted the proceeding by taking the rule against appellee, and thereby gave cause and opportunity for the filing of her response, the statements of which, together with the evidence introduced to support them, convinced the court of the necessity for modifying the first judgment to the extent that would prevent appellant from having the custody of his son at all. In this view of the matter we think appellant is estopped to complain of the want of previous formal notice of the action of the court in modifying the judgment, and likewise estopped to complain that the modification resulted without the filing of a petition therefor by appellee or himself."

A taxing statute cannot be construed prospective as to some and retroactive as to others. Appeal from Circuit Court, Franklin County.

Action by the Frankfort Distillery Company, Inc., against Robert L. Greene (now W. H. Shanks), Auditor. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank E. Daugherty, Atty. Gen., and Chas.. F. Creal, Asst. Atty. Gen., for appellant. John D. Carroll and Hazelrigg & Hazelrigg, all of Frankfort, for appellee.

CLARKE, J. In 1906 an annual license tax, based upon the amount of capital stock employed in this state, was imposed upon

See, also, Staton v. Staton, 164 Ky. 688, all corporations doing business in the state, 176 S. W. 21, L. R. A. 1915E, 820.

The Shallcross Case is conclusive of the point raised by appellant. He started these supplemental proceedings and brought to the attention of the court the question of discontinuing the allowance for his infant son. He opened up the question. He had notice that this matter was to be decided, and he therefore cannot complain that the court, which must always look after infants who

except such as were engaged in named kinds of business. Chapter 22, art. 11, Acts of 1906.

Appellee, a West Virginia corporation, then and now engaged in the distillery business here, coming within the provisions of that act, paid the tax thereby imposed in the years 1907 to 1917, inclusive. In 1917 the Legislature placed the distillery business in a class by itself, and required all parties en

(273 S.W.)