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minutes on each side, and refusing to extend | ter, inviting plaintiff to "quote us on the the time to 35 minutes, was an abuse of discre- plumbing, drainage, steam and mechanical tion. equipment found in these buildings, with the

exception of the following machinery, which Hospital Commission: [Here follows descripshall remain on the site, the property of the tion of machinery reserved.]" Plaintiff insists that the court erred in refusing to permit this letter to be introduced in evidence. The trial court excluded the letter on the ground that plaintiff made no bid covering the items specified in the letter, but merely bid on the scrap iron, pipe, etc., copper, and old lead. In other words, plaintiff did not bid on any of the items contained in the letter as a whole, or on all of the items, but simply bid on scrap material. Under these circumstances, we cannot say that the court erred in rejecting the letter as evidence.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. § 273, 274; Dec. Dig. § 112.*]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by Louis P. Hyman & Co. against the H. H. Snyder Company. Judgment for plaintiff, and defendant appeals. Reversed

and remanded.

Jacob Solinger, of Louisville, for appellant. William Furlong, of Louisville, for appellee.

CLAY, C. H. H. Snyder Company had a contract to wreck the old city hospital in Louisville. The building contained a large quantity of old iron, pipe, lead, etc. On September 14, 1911, Louis P. Hyman & Co. wrote to H. H. Snyder the following letter: "We beg to confirm purchase of all the scrap iron, pipe, etc., from the old City Hospital at eight dollars and fifty cents ($8.50) per ton, the copper wire, free of insulation, ten (10) cents per lb., and the old lead pipe at three dollars and seventy-five cents ($3.75) per hun

dred lbs."

Claiming that Snyder & Co. declined to turn over to him certain material which he had purchased, Louis P. Hyman, trading un

der the firm name of Louis P. Hyman & Co., brought this action against H. H. Snyder Company to recover the sum of $1,614.24, the difference between the contract price and

the market price of such material. H. H.

Snyder Company denied that it refused to turn over to plaintiff any materials purchased by him, but pleaded that under his contract he agreed to remove and pay for a large quantity of material which he refused to remove or pay for, and that by reason of this fact defendant was necessarily compelled to prepare the material for removal at an expense of $250. It also pleaded that he accepted and removed material of the value of $117, for which he had not paid, and that the difference in the contract price and the price at which they were compelled to sell the material which he had declined to remove amounted to about $70. For these items, defendant asked judgment by way of counterclaim. The jury found for defendant on its counterclaim in the sum of $387.69, and plaintiff's petition was dismissed. Plaintiff appeals.

[2] 2. Instruction No. 1 is complained of because the court predicated plaintiff's right to recover on whether or not the jury believed from the evidence that defendant sold and agreed to deliver to plaintiff "all of the old iron of every description contained in the hospital building." It is argued that chased all the old iron of every description, plaintiff himself did not claim to have purbut only the pipes and valves, and that the instruction, therefore, presented an issue,

not only not made by the pleadings, but beyond what plaintiff himself claimed. While the instruction in this respect is perhaps subject to verbal criticism, we are not in

the reason named. No issue was made as to clined to hold the instruction prejudicial for the machinery excepted. The real issue in the case was: Did plaintiff purchase all the old pipes and valves, or only such as were suitable for scrap? The evidence was con

fined to this issue. Under these circum

stances, the language complained of was not misleading.

[3] 3. It is next insisted that the court erred, after sustaining a demurrer to defendant's answer and counterclaim, setting up certain expenses which defendant was compelled to incur in preparing for removal the material which plaintiff refused to accept and remove from the premises, in permitting an amended answer and counterclaim to be filed, setting up substantially the same defense. As the amended answer and counterclaim, however, was filed several months before the trial, it cannot be said that plaintiff was taken by surprise or in any way prejudiced thereby, provided the amended answer and counterclaim set up a good cause of action, a question which we will discuss in the next paragraph in connection with instruction No. 2, which is also complained of by plaintiff.

Plaintiff's evidence tends to show that he and a representative of his inspected and purchased from defendant all the iron, pipe, etc. It was the contention of defendant that plaintiff purchased only the scrap iron, etc., and the scrap iron did not include materials that could still be used for the purpose for which they were adapted, but only such materials as were suitable for scrap and were placed in the scrap pile.

[1] 1 Shortly before the purchase by plaintiff, defendant sent out a circular let

[4] 4. Instruction No. 2 authorized the jury, in the event they found for defendant, to allow defendant, in addition to the difference between the contract price of the

material which plaintiff refused to receive and remove and the price at which defendant was compelled to sell the same, the necessary expense which defendant incurred in preparing the material for removal. In case of ordinary sales, the measure of damages for a breach by the buyer is the difference between the contract price and the market price at the time of the breach, if the article has a market price; but, if it has no market price, the measure of damages is the difference between the contract price and the price at which the seller is compelled to sell. That rule, however, applies only in a case where the buyer refuses to receive and pay | for the property. Where, however, in a case like this, the buyer agrees to remove the property, and hence bear the expense incident to its removal, we conclude that the expense of the removal is not only an element of damages, naturally and proximately resulting from the breach of the contract, but such as must have been within the rea

sonable contemplation of the parties in making the contract. 2 Joyce on Damages, § 1279; Sutherland on Damages, § 46..

[5] 5. Another ground urged for reversal is the fact that the trial court limited the time for argument by counsel to 10 minutes on a side. Counsel for plaintiff moved the court to extend the time beyond 10 minutes. He also moved the court to extend the time to 35 minutes. Both motions were overruled. Subsection 6, § 317, Civil Code, provides:

While

claim and defendant's counterclaim.
we appreciate the necessity for the dispatch
of legal business, and therefore the fur-
ther necessity for not interfering with the
sound discretion of the trial court in limit-
ing the time for argument, yet that discre-
tion should never be exercised in such a way
as to amount to a practical denial of the
right of argument. In this case a time limit
of 10 minutes amounted to a practical de-
nial of that right. For this reason, the
judgment must be reversed. Nesbitt's Adm'r
v. Walters, etc., 38 Tex. 576; Zweitusch v.
Lowy, 57 Ill. App. 106; Newmann v. St.
Louis Transfer Co., 109 Mo. App. 221, 84 S.
W. 189.

"The parties may then submit or argue the case to the jury. In the argument, the party having the burden of proof shall have the conclusion and the adverse party the opening. If there be more than one speech on either side, or if several defendants having separate defenses appear by different counsel, the court shall arrange the relative order of argument."

The foregoing section gives to each party the right to be heard by counsel. Wilken v. Exterkamp, 102 Ky. 143, 42 S. W. 1140, 19 Ky. Law Rep. 1132. In almost every jurisdiction it is the rule that the time fixed for argument is within the sound discretion of the trial court, and a case will not be reversed, unless it appears that this discretion has been abused. What is a reasonable time for argument depends upon the stances of each particular case.

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2. LIMITATION OF ACTIONS (§ 25*) LIMITATION APPLICABLE-ACTION AGAINST SURETY ON NOTE.

Ky. St. § 2515, requires actions upon bills of exchange or promissory notes placed upon the footing of a bill of exchange to be commenced within five years after the cause of action accrues. When that section was enacted, section 483 provided that promissory notes payable and negotiable at any bank which should be indorsed to and discounted by the bank at which they were payable or any other bank should be placed on the same footing as foreign bills of exchange. Subsequently the Negotiable Instruments Law (Ky. St. § 3720b) was passed, subsection 184 of which defines a negotiable promissory note as an unconditional Promise in writing by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certain in money to order or bearer. Held that, by the repeal of section 483 by the circum-Negotiable Instruments Act, which makes all negotiable notes capable of being placed upon the footing of bills of exchange to whomsoever negotiable, so much of section 2515 as applied change was abrogated; and hence an action to notes placed upon the footing of bills of exagainst the surety on a promissory note is subject to the further provision of section 2515 that a surety in an obligation or contract shall shall have elapsed without suit thereon after be discharged from liability when seven years the cause of action accrued.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439 441; Dec. Dig. § 161.*]

In reviewing the discretion of the trial court, appellate courts will take into consideration, not only the amount involved, the number of witnesses examined, and the time consumed in developing the testimony, but also the simplicity or complexity of the instructions, and of the issues involved, and of the facts and circumstances out of which those issues arise. In this case the amount in controversy was about $2,000. Almost two days were consumed in the trial. A number of witnesses testified on each side. The instructions were somewhat long, and presented issues growing out of plaintiff's

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 113, 118-131; Dec. Dig. § 25.*]

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division. Action by the Southern National Bank against Charles Schimpler and another.

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In the second paragraph she alleges that she was only the surety of Schimpler on this note, and that this was known to the bank; that the note was due, according to law, on the day of its date, being a demand note; and that quarterly after its execution the plaintiff bank without her knowledge or consent, entered into numerous agreements with Schimpler, the principal therein, whereby it agreed to extend to him the loan for three additional months upon each occasion, in consideration of Schimpler's promise to pay to the bank the interest on said loan during the period of extension; and that, by reason of these agreements of extension, she, as surety, was released.

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At the time that statute was enacted no note in this state was put upon the footing of a bill of exchange, unless it was made negotiable and payable at some bank in this state and discounted by a bank in this state before maturity (Kentucky Statutes, 483); but since that time, and in 1904, the Negotiable Instruments Act was passed (Kentucky Statutes, § 3720b), and subsection 184 provides:

"A negotiable promissory note within the meaning of this act is an unconditional promise in writing made by one person to another, signed by the maker engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer."

Section 2551 of the Kentucky Statutes provides that a surety in any obligation or contract (with certain exceptions not here involved) shall be discharged from all liability thereon when seven years shall have elapsed without suit thereon after the cause of action accrued.

In the third paragraph she pleads that the note was by law put upon the footing of a bill of exchange, and that, more than five years having elapsed between the maturity of the note and the institution of the action, it was barred by limitation

The cause was transferred to the equityty, and, if not, seven years not having elapsed docket, and the court sustained the plea of between the maturity of the note and the inimitation and dismissed the petition. stitution of suit thereon, a judgment should be rendered against her.

So that the question is whether the fiveyear statute or the seven-year statute releasing sureties should be applied in this case. If the five-year statute is applicable, then the appellee Pfingst is released from liabili

But two questions are necessary to be considered: (1) Did the bank, without the knowledge and consent of the surety, make such an agreement of extension with the principal as would release the surety? and (2) does the five-year statute of limitation apply?

The part of section 2515 applying to promissory notes placed upon the footing of bills of exchange was intended to apply only to that limited class of notes carefully described in section 483, Kentucky Statutes. At that time a negotiable promissory note could be put upon the footing of a bill of exchange only by discounting the same before its maturity at an incorporated bank, whereas, un

[1] Schimpler, who is a son-in-law of Mrs. Pfingst, in substance, testifies that at each quarterly period after the execution of the note up to the fall of 1911 he paid the in-der the Negotiable Instruments Act now in terest due for the past quarter out of his own funds, and upon each occasion the bank officers or some one of them agreed that, if he

force, such a note may be placed upon such footing by its sale and indorsement to any person, and all defenses are cut off in favor

discounted at a bank. In other words the present act has greatly enlarged the means by which such notes may be put upon the footing of bills of exchange, and has thereby greatly increased the number of such notes which are put upon that footing.

Therefore that limited class of notes deAppeal from Circuit Court, Trigg County. scribed in section 483 (and to which section Action by W. A. Bogard's administrators 2515, in so far as it applies to negotiable and another against John G. Jefferson's adnotes placed upon the footing of bills of ex-ministrator. From a judgment for plaintiffs, change, was intended alone to apply) having defendant appeals. Affirmed. been so greatly enlarged and extended-in fact, under the present act all negotiable notes are capable of being placed upon the footing of bills of exchange, to whomsoever they may be negotiated-it would seem there is no longer any reason to apply the fiveyear statute to this general class of notes, even when they have been placed upon the footing of bills of exchange, and the limitation provided by the statute applicable to all classes of contracts and obligations should

be held to cover them. The limited class to which that part of section 2515 was intended only to apply having been enlarged so as to make it a general class, there is no longer any reason for applying this special provision to the enlarged general class, but the general provisions should be held to embrace and apply to same. The repeal of section 483, Kentucky Statutes, by the enactment of the Negotiable Instrument Act (Williams V. Paintsville Nat. Bank, 143 Ky. 781, 137 S. W. 535, Ann. Cas. 1912D, 350), carries with it the abrogation of so much of section 2515 as applied to negotiable notes placed upon the footing of bills of exchange. Without deciding whether the note in question has been placed upon the footing of a bill of exchange, we are of opinion that the five-year statute does not apply, and that the sevenyear statute as to sureties does.

For the reasons given, the judgment is reversed, with directions to enter a judgment against the appellee Pfingst.

JEFFERSON'S ADM'R v. BOGARD'S ADM'RS et al. (Court of Appeals of Kentucky. June 3, 1914.) 1. PRINCIPAL AND SURETY (§ 194*)-COSURETIES LIABILITY FOR CONTRIBUTION.

Where A. and B., willing to assume twothirds of the liability on an official bond. and C., willing to assume one-third of the obligation, but not to sign the bond, made a contract reciting the facts and providing that C. assumed one-third of the liability of A. and B. executing the bond, and the negotiations between the parties did not contemplate that any one else should sign the bond as surety, but a third person signed with A. and B., and the principal defaulted, and A. and B. paid the amount of the loss and recovered from C. one-third thereof, A. and B. could recover from the third person a third of the loss, after deducting the amount paid them by C.

2. APPEAL AND ERROR (§ 169*)-QUESTIONS
REVIEWABLE-PLEADINGS-ISSUES.

the evidence will not be considered on appeal.
A point not raised by the pleadings or by
[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 1018-1034; Dec. Dig.
169.*]

Seldon Y. Trimble and Trimble & Bell, all

of Hopkinsville, for appellant. Smith &

Ryan, of Cadiz, for appellees.

M. M. Hanberry has been appointed master "Know all by these presents that, whereas commissioner of the Trigg circuit court by Hon. James Breathitt, and whereas it is necessary that said Hanberry shall execute a bond approved by the court, and desiring that no trouble shall arise in the execution of said bond, and being willing to share with his bondsmen W. A. Bogard and Z. T. Bogard any liability they will assume as bondsmen for said Hanberry as commissioner aforesaid, and they signing said bond on the faith of this obligation, I, W. C. White, hereby bind and obligate myself. my representatives and heirs, unto the said W. A. Bogard and Z. T. Bogard that I will make unto them in current funds one-third of any and all money and moneys that may sustain loss of by reason of their suretyship on said Hanberry's official bond as master commissioner aforesaid. It is expressly understood that I, W. C. White, do hereby assume and obligate myself that. in consideration of the risk W. A. Bogard and Z. T. Bogard assume as sureties on said Hanberry's bond as commissioner aforesaid, that I hereby bind myself unto said W. A. Bogard and the said Bogards have or may assume as sureZ. T. Bogard, to bear one-third of the liability ties aforesaid, and, in event said W. A. Bogard and Z. T. Bogard suffer any loss by reason of any defalcation or neglect on the part of said Hanberry, master commissioner, aforesaid, that I, the said W. C. White, will make good and pay over to them one-third of any such loss they may sustain, if any loss there be. I hereby waive all technicalities or omissions intended to be embraced herein.

"In witness whereof I hereunto set my hand this 20th February, 1896. W. C. White." [1] In the negotiation between White and the Bogards it does not seem to have been contemplated that any other person would sign the bond as surety. However, when the bond was executed, it was signed, not only by the Bogards, but by John G. Jefferson, who was the law partner of Hanberry,

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 605-623; Dec. Dig. § 194.*]

TURNER, J. In 1896 M. M. Hanberry was appointed master commissioner of the About the time of his Trigg circuit court. appointment negotiations between him and certain friends looking to the execution of his bond were pending. W. A. Bogard and Z. T. Bogard were willing to be obligated on his bond to the extent of two-thirds of the liability, and W. C. White was willing to assume one-third, but for personal reasons the latter was unwilling that his liability should be made a matter of record. Under these circumstances, he executed to Messrs. Bogard the following writing, to wit:

and who was to be interested to the extent of sume the liability of Jefferson on the bond, one-half in the fees of the office. and that Jefferson was to be held harmless, is totally unsupported by the evidence. It is apparent from the writing itself that Jefferson was not considered in the arrangement between White and the Bogards.

If White did not know when he executed the paper to the Bogards that Jefferson had signed or contemplated signing the bond, it is difficult to see how the signing of that paper could have been intended to protect Jefferson.

[2] It is further insisted for appellant that two items embraced in the aggregate of $1,404.55, and which two items aggregated $218.90, being costs in the circuit court and attorney's fees, were not covered by the terms of the bond, and that plaintiffs were therefore not entitled to contribution therefor; but it is sufficient to say in response to this that there was no issue made in the pleadings as to these items or either of them, although it appears in the face of the petition that they each went to make up the aggregate of $1,404.55. The only defense presented by the answer was that, by agreement between the parties, White was to be bound as surety in Jefferson's place, and Jefferson was to be held harmless, and the evidence fails to support this allegation.

The judgment is affirmed.

Thereafter Hanberry defaulted as commissioner, and suit was instituted on his official bond, which resulted in a judgment against him and his bondsmen, which, upon appeal to this court, was affirmed, and which when finally paid by the Bogards, amounted to $1,404.55.

Hanberry being insolvent, White, in compliance with his obligation to the Bogards, paid them $468.18, leaving the sum of $936.36 paid out by the Bogards, over and above their indemnity from White, by reason of their liability on the bond.

This is a suit by the Bogards against Jefferson seeking contribution from him as cosurety on the bond to the extent of one-third of the last-named sum.

The defendant answered, alleging that at the time of the agreement between the Bogards and White it was agreed that he (Jefferson) was to do all the clerical work in the office for Hanberry as master commissioner, and was to countersign all checks to be paid out which were to be drawn by said master commissioner, and that the cashier of the bank where the funds were to be deposited was directed not to honor any check until countersigned by Jefferson, and that, in consideration of these services, it was agreed between the Bogards and White and Jefferson that he (Jefferson) was to be held harmless as surety on said bond, and that White was to assume, and did assume, the one-third of the liability that the defendant Jefferson was supposed to assume, and that he (Jefferson) signed said bond with this understanding and agreement, and that White executed the written contract to the Bogards upon these

conditions.

These allegations were duly denied by a reply.

The court entered a judgment against Jefferson for one-third of the amount paid by the Bogards after deducting the indemnity paid them by White, and Jefferson's administrator appeals.

BARRICKMAN v. CITY OF LOUISVILLE. (Court of Appeals of Kentucky. June 5, 1914.) 1. MUNICIPAL CORPORATIONS ($ 805*) STREETS-AUTHORITY OF MUNICIPALITY.

It being the positive duty of municipalities to keep their streets in a reasonably safe conclose them, and, when closed, if due notice be dition for public ravel, they may temporarily given, there can be no recovery for an injury resulting from their use; and hence a resident who knew that a street was closed, and had not recover for an injury sustained in using the seen the obstructions and danger signals, canstreet during a storm.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1677, 1683; Dec. Dig. § 805.*]

2. MUNICIPAL CORPORATIONS (§ 805*) STREETS DUTY OF CITY TO MAINTAIN WARNING SIGNALS.

Where a municipality had closed a street for repairs and placed barriers and lights thereon, it is not liable for injuries to a traveler who

knew of the obstruction, because during a storm the lights were extinguished.

The depositions of White and Hanberry show, being the only evidence taken on that issue, that at the time of the agreement between White and the Bogards it was not understood or contemplated by any of the parties that Jefferson had or would become bound on the bond, and yet the indisputable fact is that he signed the bond jointly with the Bogards; and, as the writing between White and the Bogards shows on its face that White was to indemnify the Bogards only to the extent of one-third of any sum for which they might become liable as sureties on the bond, there is no reason why they may not receive contribution from Jefferson in addition to that received from White.

The allegation in the answer that there was an agreement by which White was to as

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1677, 1683; Dec. Dig. § 805.*]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by Nellie Barrickman against the City of Louisville.. From a judgment for defendant, plaintiff appeals. Affirmed.

Elmer C. Underwood and Beckham Overstreet, both of Louisville, for appellant. Wm. J. O'Connor and Pendleton Beckley, both of Louisville, for appellee.

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