a witness was taken and filed, and upon the, tion. This, however, does not prevent the first trial of the action the deposition was use of the deposition for the purpose of read, but upon a second trial, after it had contradicting the witness, if he makes a been read, a motion was made to exclude statement different from the one made by its contents as evidence, upon the ground him upon the same subject in the deposition. that the witness was then living within 20 [8] With the motion for a new trial, one miles of the place of the trial, but this court of the grounds of which was that appellant held that the objection came too late, as no was taken by surprise by the witness Thomwritten exception was filed to the deposition as changing his testimony and testifying that before the swearing of the jury or the com- he gave the engineer a come-ahead signal mencement of the trial, and cited in support when in his deposition he had stated that of this conclusion section 587, Civil Code. he had not done so, the affidavit of Thomas It has also been held that an exception to a was filed, in which he stated that he did not deposition, in an action at law, on account in fact give such signal to the engineer, but of defective certificate of the officer or the was induced to make a statement that he did officer before whom it was taken, comes too through fear, which was caused by a threat late if not made before or during the first made to him shortly before the trial by an term of court after the deposition is filed. agent of appellee, to the effect that, if he L. & N. R. R. Co. v. Shaw, 53 S. W. 1048, 21 did not so testify, he would be prosecuted Ky. Law Rep. 1041. Section 587, supra, pro- and put in the penitentiary, but that if his vides that an exception must be filed to a testimony on the trial was satisfactory, the deposition, to be available, before or during agent would see him after the trial. The inthe first term of court after the filing of the dividual whom Thomas designated as havdeposition, and a condition might exist ing made the threat and promise denied which, under section 554, supra, would en- doing so, and Thomas is not in any wise title the deposition to be read, at the first corroborated by any circumstance, except or a subsequent term after it was filed, and that the agent admits having sought Thomas the condition might cease to exist before an- out for the purpose of procuring him to sign other term at which it is offered to be read. a statement in regard to what he would tesHence it would seem that sections 587 and tify upon a trial. The case does not seem 554, supra, must be read and construed to to come within the rule declared in Livergether. Section 587, supra, it will be ob- pool, etc., v. Wright, etc., 158 Ky. 290, 164 served, does not require that an exception s. W. 952. Hence, as appellant did not ask to the competency of the witness or to the that the jury be withdrawn and the cause competency of the testimony to be filed or continued, but took his chances on a trial, noted on the record before the commence- he cannot complain of a surprise. Remley ment of the trial and before or during the v. I. C. R. R. Co., 151 Ky. 796, 152 S. W. 973; first term of the court after the filing of Travelers' Insurance Co. v. McInerney, 119 the deposition, but an exception to the com- S. W. 171; Thompson v. Porter, 4 Bibb, 70; petency of the witness or the competency of Monarch v. Cowherd, 114 S. W. 276; Shipp the testimony may be made during the trial. v. Suggett, 9 B. Mon. 5. Subsection 2, § 587, supra. When the depo- [9] The question now remains whether sition of a witness is taken in an action at there was any evidence of facts proven and law, it becomes in legal contemplation the inferences reasonably to be drawn therewitness, and is not competent, unless at the from which would go to prove the appellant's time it is offered to be read one of the condi- cause of action. It is insisted that, inastions exist, touching the author of the depo much as the deposition of Thomas was imsition, which is provided for by section 554, properly permitted to be read, it should, upon supra. A deposition of a witness in an ac- the motion for a directed verdict, be treated tion at law is taken subject to the contingen- as not having been read, and, as Thomas was cy that the witness who gives the deposition a witness of appellant, that he had no right will not be present in court at the trial, and to impeach him, and, having stated that he is never competent when the witness is pres- gave a come-ahead signal to the engineer, ent at the trial and able to testify. 8 R. C. the case for the appellant is destroyed and L. 1136, 1137. If the rule stated in Houston, the peremptory was proper. It would hardetc., v. Smith, 166 Ky. 74, 178 S. W. 1145, ly be contended that, if Thomas had not Edmonson v. Kentucky Central Railway Co., been introduced as a witness at all, the case 46 S. W. 679, and City of Louisville v. Mul- should not have been submitted to the jury. doon, 49 S. W. 791, 20 Ky. Law Rep. 1576, is If appellant, instead of reading the examcontrary to that herein expressed, it is no ination in chief of Thomas in the deposition, longer adhered to. Hence the court erred had called him and examined him orally in in overruling appellee's objection to the read-open court, and he had made the statement ing of the deposition of Thomas when he that he gave the signal, as he did upon his was present in court and able to testify, as, cross-examination, thus stating a circumwhen in the trial of an action at law a wit- stance which appellant did not expect that ness is present and in court, every reason he would state, the appellant would have the to disprove the truth of that statement by tradictory statement was already in evidence putting the deposition in evidence, to the through the error made in admitting it as extent that it would have shown that he had evidence when it was not competent as such, theretofore stated or sworn that he did not and when it was really only competent for give any such signal. While a party may the purpose above stated, and the only error not impeach his own witness by proof of his as it turned out was as to the time at which bad reputation, and if he introduced a wit- it was introduced, so far as it served to ness to prove certain facts by him and the contradict the statement of Thomas that he witness denies that they existed or denies gave the signal to the engineer. The stateknowledge of them, the party introducing ment of Thomas in his oral cross-examinahim cannot offer evidence showing that the tion did not entirely destroy the plaintiff's witness had theretofore made statements, which were different, for the purpose of cause of action made by the facts to which proving the existence of the facts, but when ferences to be drawn therefrom, when the

he and Higgason had testified and the inà party introduces a witness who makes an truth of the statement made by Thomas was affirmative statement prejudicial to the inter- truth of the statement made by Thomas was est of the party, he may disprove the truth contradicted flatly by a previous sworn stateof the statement by showing that the witness ment, and besides, in addition to this, the has theretofore made a statement different appellee made a strong attack upon the credand contradictory to the one made by him as ibility of Thomas by showing that he had a witness. Dukes v. Davis, 125 Ky. 313, 101 made at least one statement in regard to S. W. 390, 30 Ky. Law Rep. 1348; Bergman the matter, previous to the time of his tesv. Solomon, 143 Ky. 581, 136 S. W. 1010; tifying, which was contradictory to .

that Nicholson v. Rust, 52 S. W. 933, 21 Ky. Law made by him as a witness upon the trial. Rep. 645; Loving v. Commonwealth, 80 Ky. The credibility of witnesses is always a 507; Blackburn v. Commonwealth, 12 Bush, question for the jury. Hence it could not 181.

be said that, after all of the evidence was [10, 11] The appellant, in the instant case, heard it was without contradiction and faillaid the foundation for the contradiction of ed to support, to any extent, appellant's Thomas' statement that he had -given the cause of action, and hence the court was in signal to the engineer after Thomas had so error in peremptorily directing the jury to testified in his oral examination by asking find a verdict for the appellee. . Thomas if he did not testify in his deposition The judgment is reversed, and cause rethat he did not give the signal to the engi- manded for proceedings consistent with this

The deposition containing the con- | opinion.

(134 Ark. 458)

which the road improvement district demandSOUTHERN SURETY CO. v. J. A. PERDUE ed. The application was accepted, and the & Co. et al. (No. 350.)

insurance company became surety on the (Supreme Court of Arkansas. May 6, 1918.) bond in the penal sum of $35,000. The appli1. PRINCIPAL AND SURETY Om57-INDEMNITY cation blank consisted of four pages of printBONDS-CONSTRUCTION.

ed matter, upon which a large number of Provisions of application drawn by surety questions were asked and blank spaces procompany must be construed most strongly vided for answers.

most strongly vided for answers. This blank was so preagainst the company. 2. PRINCIPAL AND SURETY m 57 – SURETY pared as to be adapted to bonds of various BONDS-CONSTRUCTION.

kinds, and one clause of the application blank In construing surety bond of contractor it read as follows: is not improper for the court to consider the character of the contract to cover which the the terms of which guarantee the faithful per

“If a contract bond or similar instrument, application for the bond was made.

formance of the contract, is executed or caused 3. PRINCIPAL AND SURETY On 57 – BONDS

to be executed by the surety; or if following a CANCELLATION.

proposal bond executed by the surety, a contract Where the contractor for road building se bond or similar instrument, the terms of which cured a bond, and the improvement district guarantee the faithful performance of the confunds became exhausted, and the work was tract, is required of the contractor and executed therefore stopped and was not resumed, the by the surety, the indemnitor will immediately contractor had a right to notify the surety that on the execution of said bond pay to said surety the bond was no longer required and to stop the dollars ($ -) and a like sum per annum premiums.

in advance; and the indemnitor also agrees 4. PRINCIPAL AND SURETY Ow57-PREMIUMS that all the terms and conditions of this agree-FILLING BLANKS-AUTHORITY.

ment shall cover and apply to the contract bond Where principal and surety contemplated so executed." that application for contractor's bond would become effective on its approval at home office, This blank was not filled by the applicant, mere fact that blank for amount of premium but on the receipt of the application at the was not filled until the application was accepted was not controlling; authority to fill it being home office of the insurance company the impliedly conferred upon the surety.

figures, “$329.67,” were inserted, this being 5. PRINCIPAL AND SURETY Ow57–CONTRAC- the premium charged. The contract which TOR'S BOND-APPLICATIONS-EVIDENCE.

Where printed directions on application appellees had with the improvement district blank for contractor's bond required all blanks does not appear in the record, but the comto be filled, it was not improper for the court plaint recites that it provided that the conto hear testimony that such blank was not struction of the road should be completed filled, as tending to show that it was not regarded as being applicable to the character of within 7 working months, with a proviso that bond for which application was made.

delays due to the acts of the commissioners 6. PRINCIPAL AND SURETY Ow57–LIABILITY should 'not be regarded as constituting time FOR PREMIUMS.

Where a road contractor secured bond with spent in such construction, and with a proviout maintenance clause, but calling for annual sion for liquidated damages for each workpremium, and the work was abandoned through ing day in excess of seven working months exhaustion of funds of the improvement dis- spent in the construction of the highway. trict, and the contractor gave notice thereof to The road was not completed within that time, the local agent, mere fact that clause of bond required notice and proof of termination of lia- nor was it completed within one year from bility to be filed with the home office did not the date of the execution of the bond, and render the contractor liable for second year's had not been completed at the time of the premium; liability on the contract and bond

The having ceased with abandonment of the contract. trial of this cause in the court below.

Southern Surety Company succeeded the Appeal from Circuit Court, Jefferson Coun- Southwestern Surety Insurance Company ty; W. B. Sorrells, Judge.

and assumed all the contracts of that comAction by the Southern Surety Company

pany. A premium of $329.67 was paid, and against J. A. Perdue & Co. and others. Judg- at the expiration of one year another prement for defendants, and plaintiff appeals. mium was demanded by the company, and Affirmed.

this suit was brought therefor against appelBridges, Wooldridge & Wooldridge, of Pine lees upon their refusal to pay. Bluff, for appellant. Caldwell & Triplett, of Appellees were permitted, over objection of Pine Bluff, for appellees.

appellant, to show that the term, "working

months," did not necessarily mean calendar SMITH, J. Appellees were employed by months, but meant time in which the conthe board of directors of a road improvement tractor could do work of the character covdistrict in Lincoln county to construct a road ered by the contract. And they were also in that county. To guarantee the faithful permitted, over objection of appellant, to performance of the contract the board re- show that the delay in the construction of quired the contractors to execute a bond, and the road resulted from the failure of the road in pursuance of this requirement appellees district to provide the necessary funds to pay made application on September 23, 1914, to for the work as it progressed. And over apthe Southwestern Surety Insurance Company pellant's objection appellees were also perthrough its agent at Pine Bluff for the bond, mitted to show that they had notified the

agent of the company before the expiration, any maintenance or guaranty, of the work the of the year that no further bond would be contract premium will be paid annually until

the indemnitor furnishes the surety with like required or premium paid.

evidence of the completion of the contract, which [1-3] We do not know what the provisions will be the commencement date of maintenance of the bond are, except as they are recited and maintenance premium." in the allegations of the pleadings, but it ap- It is conceded that no notice was sent to pears that it was conditioned that the con- the home office of the company at Denison, tractors should faithfully perform the con-Tex.; but it is not denied that notice was

As has been said, the application was given to the local agent who took the appliso prepared as to be adapted for a bond of

cation. any kind, and its provisions must, of course,

No contention is made that the bond of be construed most strongly against the com- the contractor contained any provision for pany. It was not improper for the court to the maintenance or upkeep of the road, or consider the character of the contract to cov- that there was anything in connection with er which the application for the bond was the contract for the construction of the immade. It was in the contemplation of the provement which would have extended the parties that the contract would be complet- liability of the contractor beyond the time ed in 7 working months, which was shown to of the completion of the contract, and clause be ordinarily less than 12 calendar months, 4 is therefore of no controlling importance. and the work was not completed within that

Upon a consideration of all the testimony time because of the default of the improve in the case, we think the court was warrantment district. Its funds became exhausted, ed in the finding made that the application and the work was stopped on that account, did not contemplate that a bond would be and has not been resumed. Under these cir- required for a greater period than one year, cumstances the contractors had the right to for the contract was not one under which notify their surety that the bond was no lon- any liability could ordinarily have arisen aftger required, and that notice was given.

er the first year. There are, of course, many [4] It is not of controlling importance that contracts the performance of which would the blank space in which the amount of the necessarily or likely extend over a period of premium was later written was not filled by more than a year and where liability of the the applicant or by the agent who took the surety might accrue in one year or in anothapplication, because the parties contemplat- er, and it was the evident purpose of the proed that the application would become effec- visions of the application which we have set tive upon its receipt at the home office of out to require the payment of a premium as the company and its approval there and the long as this liability continued, and to make execution of the bond which the improve the notice given to the company at its office ment district required, so that, if it was es- at Denison the evidence of the termination sential to fill this blank, authority so to do of this liability. But to hold this clause 4 was impliedly conferred upon the company. applicable to the facts of this case would be Ætna Indemnity Co. v. Ryan, 53 Misc. Rep. to construe it as imposing a penalty for the 614, 103 N. Y. Supp. 756; Geo. Knapp & Co. failure to give this notice. The contractor v. Wilks, 105 Ark. 243, 151 S. W. 280; White- had no further need of a bond, and had so Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 notified the agent of its surety. If there S. W. 208.

was any liability under this bond, that lia[5] Printed directions on the application bility had already accrued, and the premium blank required the agent to fill all blanks, raid covered the assumption of that risk, and and it was not improper for the court to hear the judgment prayed by the company was testimony that the blank in question was therefore properly refused. not filled as tending to show that it was not Affirmed. regarded by the parties as being applicable to the character of bond for which applica

(134 Ark. 227) tion was being made.

MOGK et al. v. KING et ux. (No. 347.) [6] The agent testified that the premium

(Supreme Court of Arkansas. May 6, 1918.) was arrived at by calculating a given per cent. on the face of the bond. Appellant in- 1. LANDLORD AND TENANT 182-LEASES

CONSTRUCTION. sists, however, that the clause set out above

Lease giving tenants "free use of the land should be read in connection with clause 4 that they take the stumps off *

for the of the bond, which reads as follows:

year 1916," requiring rent to be paid therefor

thereafter, limited free use to 1916, and tenants “4. The contract premium, if there' be no could not 'use land rent free in 1917, having remaintenance or guaranty, will be paid annually moved stumps in winter of 1916 and 1917. as above until the surety shall be discharged or released from any and all liability and responsi- 2. APPEAL AND ERROR O 301-PRESERVATION bility upon said bond, and all matters arising OF EXCEPTIONS. therefrom, and competent written legal evidence Alleged error in judgment in that it might of such discharge or release, satisfactory to the not have followed verdict, not made ground of surety, is served thereon at its office in Deni-motion for new trial, cannot be raised on ap

Where the contract bond covers | peal.

*

son, Texas.

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

203 S.W.-37

.

Appeal from Circuit Court, Clay County ; , that the corn in controversy grew on this W. J. Driver, Judge.

part of the farm. They denied that they Replevin by J. R. King and wife against pointed out a crib on the farm, and told HarCharley Mogk and another. Judgment on lan that it contained the rent corn; that verdict for plaintiffs, and defendants appeal. they finished burning the stumps in FebruAffirmed.

ary, 1917; that most of the stumps were This is a suit in replevin by J. R. and Ma- pulled off of the land during the year 1916. tilda King against Charley Mogk and M. G.

Other witnesses corroborated their testimony Ort to recover possession of 225 bushels of and said that between 20 and 25 acres had corn alleged to be worth $225. On the 25th ed or referred to in the opinion.

been stumped. Other testimony will be statday of September, 1915, J. R. and Matilda King, by a written contract, leased to Char- the plaintiffs, and fixed the value of the

The court directed a verdict in favor of G. of Clay county, Ark., for the term of five years, the sum of $200. The court thereupon ren

corn to which the plaintiffs were entitled in beginning the 1st day of January, 1916, and ending the 1st day of January, 1921. It was dered judgment in favor of the plaintiffs agreed that the rent should be one-fourth of against the defendants for the 225 bushels of all the corn grown on said premises the first corn sued for, or, in the event that it was year and one-third each year thereafter, one- not delivered to the plaintiffs, that they fourth of the cotton, and one-half of the should recover of the defendants the sum of hay. The corn was to be delivered in a crib $200. on the premises, the cotton at the gin, and

The defendants have appealed. the hay in a stack or barn. The clause of

E. G. Ward, of Piggott, for appellants. the lease which caused this lawsuit is as fol-W. E. Spence, of Piggott, for appellees. lows:

"It is agreed by and between the parties hereto that the parties of the second part shall not

HART, J. (after stating the facts as subrent or lease any part of said premises with above). We have copied in the statement of out the written consent of the parties of the facts that part of the lease in regard to takfirst part, and it is further agreed between the ing the stumps off of the land. It is the conparties that the parties of the second part are to have the free use of the land

that they take tention of the plaintiffs that under the terms the stumps off level with or below the surface of the lease that the defendants were only to of the land for the year 1916, but are to pay have rent free the land from which they rent as herein specified thereafter."

took the stumps off level with or below the During the year 1916 the tenants made a surface of the earth during the year 1916. corn crop on about 3872 acres of the land. On the other hand, it is the contention of the They gathered one load of corn of about 25 defendants that they could take the stumps bushels, and put it on another farm of the off at any time during the term of the lease. landlord's about two miles away. The re- They insist that the lease failed to mention mainder of the rent corn was placed in a any specific time in which to remove the crib on the place where it was grown. The stumps. The court in its instructions to the tenants both pointed out the pen in which jury limited the time to January 1, 1917. the corn was cribbed to an agent of the land- This action of the court is assigned as error. lord, and stated it was the rent corn.

[1] We think the construction put upon According to the testimony of I. W. Har- the contract by the court was correct. Such lan, the agent, he accepted the corn in the construction seems to be borne out by the crib as rent on about the 31st day of Decem- language of the lease contract. It provides ber, 1916. He never attempted to remove that the tenants are to have the free use of any of it until the 14th day of February, all the land that they take the stumps off of 1917. The defendants then forbade him to level with or below the surface of the land remove the corn, and informed him that the for the year 1916, but are to pay rent thereplaintiffs had all the rent that they were en

after

The year 1916 was the first year of titled to for that year.

the lease, and it seems to have been the inAccording to the testimony of Harlan, he tention of the parties to require the stumps made and signed the contract for the own- to be removed or cut off during that year. ers. He was the agent to look after the This is shown by the fact that the tenants farm. He stated that none of the ground are to pay rent thereafter. It is not reasonwas stumped in 1916. The defendants claim- able that it was the intention that the tened the right to remove the stumps at any ants should have the land rent free for 1916, time during the term of the lease. Harlan and have the balance of the term within denied them this right under the contract. which to remove the stumps. It was the He told them that they had no right to re- manifest intention that they should only move the stumps under the contract after the have rent free the land from which they first of the year 1917, but that he would ad- took the stumps. If they did not remove the vise them to remove them for their own bene- stumps during the year 1916, it could not be fit after that time. On the other hand, the known how much of the land they were to defendants testified that they had pulled the have rent free. On the other hand, the rent