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contract and deed, yet the testimony of the times, much of which is exceedingly revoltappellant stoutly denied that he had failed ing, and clearly shows, if true, that appelin any respect to provide for the appellee lant instead of providing for appellee a home and her mother the necessaries of life, and where she could live comfortably, had made that he was at all times affectionate and at- her home a rendezvous for his own and his tentive to them, and secured for them all the associates' dissipation, and by so doing had help they needed, and, in short, fully com- rendered her condition in life wholly intolplied with his contract to support and main- erable. tain them. Therefore, as already stated, While appellant in his testimony categoif it were only a question as to whether or rically denies these alleged charges of drunknot appellant had complied with his contract enness and misconduct, we are convinced to provide the necessary food and clothing from his own testimony and the testimony of for the appellee and her mother, the burden other witnesses that these allegations are in being upon the appellee, it could hardly be the main sustained. The testimony of the said that she had shown by the preponder- appellant, himself, shows that he contracted ance of the evidence that the appellant had the habit of drink as early as 1904, long bebreached his contract and that the consid- fore the death of his grandfather. While he eration for the deed had failed. But the ob- denied that he ever drank whisky at any ligation of appellant to support and care for time to an extent to cause him to neglect his his grandmother and aunt during the re business, and denied that he ever drank on maining years of their lives, written as the the place, yet his own brother, who lived with express consideration in the deed, included them continuously during the year 1915, testinot only the duty to furnish them food and fied that he saw appellant there drunk or clothing but also the duty to provide for intoxicated a good many times and quarrelthem a home suited to their condition in life ing with the appellee three or four times; where they could live with comfort.

that he came in after night in an intoxicated

It would be idle to say that he complied with condition and brought others with him, whom his contract by merely administering to their

witness presumed to be drinking. One witphysical necessities when by his conduct he ness, who lived with them in 1909, and who had made it impossible for them to use or 1910, 1911, and 1912, and was about the house

lived a little over one-half mile from them in enjoy these necessities in ease and peace, and had actually rendered their condition in a good deal and witnessed the conduct of

appellant, saw him drinking and keeping life intolerable. In addition to the allegation that appelers with him intoxicated frequently in the

whisky there all the time; saw him and othlant had failed to provide appellee and her presence of the appellee; heard him say he mother "with all the necessary conveniences built the little barn, back of the house, to and comforts of life” appellee alleges that: lock his whisky up in; heard him talking

Appellant “would frequently return home loud and making noises; had seen crowds drunk or in an intoxicated condition, and sometimes bring others with him in a like condition over there a few times on Sundays and a few and be boisterous and abusive and insulting to times had heard shooting and hollering on the plaintiff and subject. her and her aged moth- Sundays like drunken fellows. Another witer to great indignities and humiliation; that his ness testified that more than once he had continued acts of neglect, dissipation, and abuse of plaintiff have been kept up until it has be- been over there and every time appellant had come intolerable and unbearable; that he quar-whisky and would be drinking. reled with plaintiff, called her bad names, ap- The testimony discloses, therefore, that the plied to her vile epithets, accused her of stealthily slipping things

away from the place, and has year after appellee had executed the deed become so depraved that he often, when they appellant began to drink to excess, and that were at home alone, solicited plaintiff to commit the appellee remonstrated with him and incest by cohabiting with him; that his drunk- endeavored to reform him and that he conbearable for plaintiff and for her own personal tinued, notwithstanding, until his drunken

un safety she has been compelled to leave her home ness, and misconduct towards appellee proand seek protection among her relatives.” duced thereby, became such as to render her

The court found among other things that condition intolerable. The doctrine of laches appellant by his conduct towards appellee and estoppel has no application to such a “has rendered her condition with him in- state of facts.

The aunt could not be contolerable and unbearable." The testimony sidered guilty of laches because she endeavorof the appellee, herself, tends to prove speed by persuasion to have her wayward nephcifically all these allegations. She testifies ew abandon his drink habit, which was manithat after the execution of the deed and as festly the cause of his neglect of herself and early as 1910 the appellant began to drink mother, and his bad treatment of her. She whisky; he would go off and come home in-could not be estopped because she had not toxicated and be very ill; he got worse ev- upon the first occasion of his drunkenness and ery year; she would remonstrate with him neglect declared his contract forfeited and and he would answer her in a very rough taken steps to cancel the deed. If appellant manner, telling her that it was none of her had at any time yielded to the admonitions business. She described fully many of his and entreaties of his aunt and had abandondebaucheries and his conduct during those ed his cups and shown a willingness to comply with his contract, then the appellee would intention from the inception of the contract,

203 S.W.-19

cause of action against him. and therefore vitiates the deed based upon Therefore it cannot be held that appellee such consideration. Such contracts are in a would be estopped because through several class peculiar to themselves, and where the years she endured the profligacy of her neph- grantee intentionally fails to perform the ew in an effort to reform him and to obviate contract, the remedy by cancellation, as for the necessity of having to resort to the law fraud, may be resorted to, regardless of any in order to secure her rights under the con- remedy that the grantor may have had also tract and deed.

at law. See Salyers v. Smith, supra; 4 R. C. [5] This court is committed to the doctrine, L. supra; Russell v. Robbins et al., 247 Ill. which is supported by the great weight of 510, 93 N. E. 324, 139 Am. St. Rep. 342; Luthauthority, as announced in 4 R. C. L. p. 509, er Stebbins v. Joseph Petty et al., 209 I'l. 291, $ 22, that:

70 N. E. 673, 101 Am. St. Rep. 243; Spangler

et al. v. Yarborough, 23 Okl. 806, 101 Pac. "Where a grantor conveys land, and the con

1107. sideration is an agreement by the grantee to

See, also, Bruer v. Bruer, 109 Minn. support, maintain, and care for the grantor dur- 260, 123 N. W. 813, 28 L. R. A. (N. S.) 608; ing the remainder of her or his natural life, Abbott v. Sanders, 80 Vt. 179, 66 Atl. 1032, and the grantee neglects or refuses to comply 13 L. R. A. (N. S.) 725, 130 Am. St. Rep. 974, with the contract, that the grantor may, in equity, have a decree rescinding the contract and 12 Ann. Cas. 898; Glocke v. Glocke, 113 Wis. setting aside the deed and reinvesting the gran- 303, 89 N. W. 118, 57 L. R. A. 458. See, also, tor with the title to the real estate." Salyers v. case note 43 L. R. A. (N. S.) 918-925. Smith, 67 Ark. 526-531, 55 S. W. 936; Priest v. Murphy, 103 Ark. 464, 149 S. W. 98; Whit

The findings of the court that the personal taker v. Trammell, 86 Ark. 25, 110 S. W. 1041. property involved was the property of the

appellant, and that appellant had received [6, 7] The rationale of the doctrine is that rents and profits sufficient to pay him for the an intentional failure upon the part of the improvements which he had placed upon the grantee to perform the contract to support, land, are correct. We find no reversible error where that is the consideration for a deed, in the record, and the decree is therefore raises the presumption of such fraudulent affirmed.

(180 Ky. 572)

that the men pushing this second car were ELK HORN MINING CORP. V. PARADISE. fellow servants of Paradise. And so, as the (Court of Appeals of Kentucky. May 14, 1918.) negligence if any of the men pushing the 1. MASTER AND SERVANT 185(12) – INJU- second car was taken out of the case, the jury RIES TO SERVANT-FELLOW SERVANTS.

must have found a verdict for Paradise upMembers of a second crew pushing and on the ground that the track was unsafe. dumping slag cars outside a mine were not fellow servants of a member of the first crew in

[1] If, however, the men pushing the seclike work, against whom, to his injury, they ond car were guilty of negligence, and his

, pushed their car.

injuries were the result thereof, the company 2. APPEAL AND ERROR O1201(6)—PLEADING was liable to him for any injury sustained -AMENDMENT-AFTER REMAND.

Where a servant sought damages for injuries thereby, and there is no dispute about the
under the safe place doctrine, but the evidence fact that the injuries he sustained were
failed to show negligence, and other evidence caused by the collision of this second car
showed that the injury resulted from acts of with him. The men pushing the second car
coemployés, not fellow servants, plaintiff, on were not fellow servants of Paradise. See
remand after reversal, should be allowed to
amend so as to seek recovery for negligence of Cummins v. W. J. Sparks Company, 173
the coemployés.

Ky. 803, 191 S. W. 515; Harris v. Rex Coal
Appeal from Circuit Court, Floyd County. Company, 177 Ky. 630, 197 S. W. 1075.
Action by Mike Paradise against the Elk

[2] As evidence was not sufficient to susHorn Mining Corporation. Judgment for

tain the finding of the jury, the case must plaintiff, and defendant appeals. Reversed, be reversed, but upon its return to the lower with instructions.

court the plaintiff should be permitted to

amend his petition if he so desires, and in Allie W. Young, of Morehead, Ed. C. addition to the ground of negligence relied O'Rear, of Frankfort, and Smith & Combs, on in the petition seek a recovery upon the of Prestonsburg, for appellant.

ground that Paradise was injured by the

negligence of the men pushing the second CARROLL, J. Paradise was injured

car, and if there is evidence to support this while working for the Elk Horn Mining Coraverment, the case should go to the jury poration, and in this suit to recover damages

upon this issue. It should, of course, also there was a judgment in his favor for $750, be submitted on the issue of unsafe place if and the company appeals, insisting that the plaintiff can make out on this issue a there should have been a directed verdict in better case than he made on the last trial, its favor, and that the verdict was excessive. and a case that would authorize a submis

The accident happened in this way: The sion on this issue. mining company had constructed a short

Wherefore the judgment is reversed, with single track railroad for the purpose of haul- instructions for a new trial in conformity ing, in little cars pushed by men, slate and

with this opinion.
rubbish from the mouth of a mine that it
was developing to a place not far from the
mouth where this useless material could be

(180 Ky. 594)

CALDWELL COUNTY v. DURRET dumped. When Paradise was injured, he

CONST. CO. and two other employés were pushing a load of refuse from the mine to the dump, and it (Court of Appeals of Kentucky. May 17, 1918.) appears that on account of an elevation in 1. COUNTIES 206(1) – ORDERS OF FISCAL

Onn the track they had some difficulty in pushing

COURT-COLLATERAL ATTACK. the car over this place, and in fact were Partial estimates certified to fiscal court apparently unable to do so. While they were pursuant to Ky. St. $ 4356x, subsec. 15, under making an effort to push the car over this contract with county for construction of turn

pike road, held subject to correction by crosselevation, another similarly loaded car com- bill in action by contractor against county for ing behind them, and also pushed by men, balance due; orders of court directing payment ran into and struck Paradise.

of estimates not being final, so that appeal unThis suit was brought upon the theory der section 978 was appropriate remedy.

2. COUNTIES 225 CONSTRUCTION CONthat the track was unsafe, and therefore

TRACTS. the mining company had failed to furnish Where, following requirements of Ky. St. & Paradise a safe place in which to work, and 4356x, subsec. 12, contract for construction of on this theory of the case it was submitted turnpike road in defendant county provided that to the jury, but we do not think the evi- at least 5 per cent. of the contract price should to the jury, but we do not think the evi- not be paid until expiration of one year after dence in this record shows that the company completion of work, the court erred in entering was guilty of any negligence in this respect. judgment for plaintiff contractor for the full Saulsbury v. Elkhorn, C. C. & C. Company, amount found to be due; a year not having ex

pired since completion of work. 174 Ky. 324, 192 S. W. 20. The court also 3. COUNTIES O222 ACTION FOR BALANCE instructed the jury that there could be no DUE UNDER CONTRACT_DEFENSES. recovery by Paradise if his injuries were sus- In action for balance due under contract tained by or on account of the acts and con- for construction of turnpike road for defendant

county pursuant to Ky. St. $ 4356x, county's duct of the men who were pushing the car answer challenging correctness of unpaid claim that ran into him, and this upon the ground I and of estimates previously paid by fiscal court

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

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on certificates made pursuant to subsection 15, section 15 of the statute, the state road inand counterclaim for excess payments made pur- spector and the county road engineer certisuant to such estimates, were not demurrable.

fied to the fiscal court, in writing, that the 4. PLEADING Eww258(1) – AMENDMENT — DISCRETION.

construction company had performed certain The court abused its discretion in refusing, portions of its work under its contract, and on the ground that it came too late, to permit that there was then due it for said work the defendant to file a second amended answer, where on the day that it overruled the motion aggregate sum of $2,695.48, of which 20 per therefor it thereafter permitted plaintiff to file cent. ($539.09) should be retained under the a demurrer to the first amended answer and a terms of the contract. Again, on Decemreply to original answer and counterclaim.

ber 29, 1915, a similar certificate was issued 5. APPEAL AND ERROR Om856(2) – MATTERS to the court showing the contractor had furNOT APPARENT FROM RECORD-REVIEW.

Unless it appears from the record that ther performed work of the aggregate value amended pleading was rejected for want of cer- of $1,475.25, of which 20 per cent. ($295.05) ification, failure to verify will not upon appeal should be retained. The fiscal court paid be treated as a sufficient ground for its rejection in view of Civ. Code Prac. 139, providing these two estimates, but the record fails to that courts may in their discretion permit show what orders were entered upon its amendments without verification unless a new records, if any, in that connection. At that and distinct cause of action or defense be there time the contractor had about finished the by introduced.

excavation and grading work, and was proAppeal from Circuit Court, Caldwell ceeding with the work of macadamizing the County.

road by putting on the rock, rolling it, etc. Action by the Durret Construction Company against Caldwell County, in which the the work of surfacing the road until some

The construction company proceeded with county filed a cross-petition. Judgment for plaintiff, and defendant appeals. Reversed time in June, 1916, when it claims it had . and remanded.

done work of the value of $2,003.32, in ad

dition to that embraced in the two estiJ. E. Baker and R. W. Lisanby, both of mates above referred to, and as these three Princeton, for appellant. John C. . Gates, items consumed the $6,250 which had been of Princeton, and E. Levi and Kohn, Bing-appropriated for this purpose the company ham, Sloss & Spindle, all of Louisville, for ceased work. Up to this time there had appellee.

been no dispute between the county and

the contractor as to the amount of work MILLER, J. In 1915, the fiscal court of done, or the amount of money due thereCaldwell county determined to construct so for, but when the contractor ceased work much of a turnpike road leading from Cadiz in June, 1916, claiming it had finished to Princeton as was located in Caldwell its work, the county contended that it had county, at an estimated expense of $6,250, not completed its contract, and refused to one-half thereof to be paid by the state. pay the construction company for the work The contract for the construction of the road it had done in the spring of 1916, and it furwas awarded to the Durret Construction ther claimed that the construction company Company under the provisions of the act had not performed the amount of work of 1914, commonly known as the state aid which it claimed it had done under the first act, and constituting section 4356x of Carroll's two estimates furnished in November and Kentucky Statutes. The plans, profiles, and

December, 1915. The state inspector and specifications for the improvement, and the the county road engineer refused to certify contract with the Chicago Bonding & Surety to the amount of work claimed to have been Company as surety thereon, were submitted to and approved by the state commissioner 1916. The fiscal court entered an order re

performed by the contractor in the spring of of public roads as required by sections 10 and

citing the fact that the construction com11 of the statute, supra. The contract provided that the contractor should be paid pany had not completed its contract and call80 per cent. of the contract price of his work ing to return and complete it, and a copy as it progressed; and, further, that when the of this order was served upon the construccost of the work which had been finished tion company and its surety. amounted to as much as $6,250, the sum

The county filed an answer and counteravailable for road purposes, the work should claim traversing the allegations of the pecease. Pursuant to section 14 of the statute, tition as to the completion of the work as rethe state road commissioner appointed Bar- quired by the contract, made it a cross-exnum Davis as state road inspector to repre petition against the Chicago Bonding & sent the state's interest in Caldwell county. Surety Company, and asked a judgment

The Durret Construction Company began against the construction company and its work on the road in October, 1915, and con- surety for $2,540 in damages. By an amendtinued the work, with some intermissions ment the allegations of this pleading were

The circuit court at during the winter, until June, 1916, when it made more specific. ceased work, claiming it had completed its first overruled demurrers to the answer, contract. On November 24, 1915, pursuant to counterclaim, and cross-petition, but, upor

the demurrers being renewed, the court sus-, the fiscal court ordering their payment. This

. tained them. By a second amended. answer, contention is based upon the well-established counterclaim, and cross-petition tendered rule that where the fiscal court has statutory by the county on June 4, 1917, it charged authority to appropriate money for the purthat the construction company had practiced pose attempted, and the appropriation is withfraud upon it in constructing the highway, in its power, and the order clearly shows the and that the indebtedness created by the object of the appropriation, the discretion of contract exceeded the county's revenue for the court in making it cannot be questioned that year. The court refused to permit the in a collateral proceeding; it can only be reamendment to be filed, dismissed the coun- viewed by an appeal. Elliott' v. Commonterclaim and cross-petition, and entered judg-wealth, 144 Ky. 335, 138 S. W. 300; Hickman ment against the county for the sum of County v. Richmond, 148 Ky. 849, 147 S. W. $2,837.45 prayed for:

913; Ray v. Woodruff, 168 Ky. 563, 570, 182 As grounds for a reversal appellant in- S. W. 662; Mills v. Lantrip, 170 Ky. 83, 185 S. sists: (1) That a judgment should not have W. 514. This rule, however, has its limita

: been entered for the full amount found to tions; one of them being that the order must be due to the contractor, because under the be a final order before it can be treated as contract, 5 per cent. thereof ($321.50) would conclusive between the parties. not be due until one year after the approval Section 978 of the Kentucky Statutes proof the work by the state road commissioner vides that: as provided by subsection 12 of section 4356x

“Appeals may be taken to the circuít court of the Kentucky Statutes, and by the terms from all orders and judgments of the fiscal court of the , contract; (2) that the court erred in

or quarterly court in civil cases where the value sustaining the demurrer to the counterclaim is over $25.00.”

in controversy, exclusive of interest and costs, which stated a cause of action for damages

It has repeatedly been held by this court for the improper construction of the road; (3) that the court erred in sustaining the that when exceptions have been filed in the demurrer to the answer which traversed the county court to a settlement, and an order plaintiff's claim for work done under the is made overruling or sustaining them, the contract; and (4) that the court erred in re- ruling can be reviewed only by an appeal to

the circuit court; but where no exceptions fusing to permit it to file its amended an

are filed, the settlement is only prima facie swer and counterclaim charging

charging fraud against the construction company.

correct, and errors therein may be corrected Subsections 12 and 15 of section 4356x of by a bill in chancery. Scott's Heirs v. Ken

nedy's Ex'r, 12 B. Mon. 515; Turley's Adm'r the. Kentucky Statutes, read as follows:

v. Barnes, 103 Ky. 127, 44 S. W. 446, 19 Ky. “12. The time and manner of payment for work done under any contract awarded under Law Rep. 1808. And in Stanberry's Adm'r v. this act shall be set forth in said contract, and Robinson, 27 S. W. 973, 16 Ky. Law Rep. at least five per centum of the contract price 309, the rule was extended to cases wherein shall not be paid to the contractor until after partial settlements had been made by an adthe expiration of one year from the completion of the work and acceptance thereof in writing ministrator and a final settlement was subseby the commissioner of public roads."

quently made. In cases of that character it "15. Where any contract provides for partial was held that an appeal might be taken from payment based upon the amount of work done, the final settlement in which the partial settleit shall be the duty of the inspector as each payment becomes due to present to the fiscal ments had been incorporated and reviewed. court a certificate signed by such inspector and In other words, an order made in a county the county road engineer, in which certificate court confirming a report when no exceptions shall be stated as nearly as can be the amount had been filed thereto, or where partial set

done and that the same has been done in all respects tlements have been made by an administrator in strict compliance with the contract, plans and to which no exception was taken, were not specifications. When the work under contract final orders which would prevent a correction shall have been fully completed the inspector and county road engineer shall prepare a detail of the settlements by a bill in chancery. ed and itemized statement in quadruplicate of Such' orders are only prima facie correct. the cost of the improvement, certifying the same. The reason for the rule is stated in Scott's one copy of which shall be filed with the fiscal Heirs v. Kennedy's Ex'r, supra, as follows: court of the county, one with the county road engineer and two with the state commissioner "But we are of opinion that the order of the of public roads."

county court confirming a settlement, without

exceptions, in a case in which it has jurisdic[1] 1. Preliminary, however, to a discus- tion is not such a final judgment or order as is sion of the questions raised by the appellant, the proper subject of a writ of error, or of revithe appellee insists that the circuit court was because: (1) There is in such a case no judi

sion and reversal by this court on any ground, without jurisdiction to review the questions cial contest, and no judicial decision, but the raised concerning the correctness of the es-order of confirmation partakes rather of the timates covered by the two partial payments (2) There is no final adjudication or determina

character of a ministerial than of a judicial act. made by the fiscal court in November and tion in favor of one person, or against another, December, 1915, respectively, and that the or upon any question of property or of personal propriety of those payments could only have rights. (3) The settlement and its confirmation

are not conclusive either upon the parties who been raised by an appeal from the action of I may have been interested in opposing them, or

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