[2] It is urged by appellants that the dam- not have the contract, but located a copy of ages are excessive. The brief statement we it, and the contract bore him out in his behave made of the evidence shows that the lief that he had never agreed to haul the jury could have returned a verdict for con- Elk Lick timber. The defense that there was siderably more than $1,000, without being a mistake in the contract was not made unsubjected to the criticism that the damages til April, 1924, which was nearly three years were excessive. There is very little evidence after the suit was brought. This amended offered showing the cost of carrying out the answer alleges that appellants did not disterms of the contract. Appellee testified that cover that the Elk Lick timber was omitted he was complying with the terms of the con- from the contract until the day the amended tract and would have continued to do like- answer was filed. Three years before this wise at a cost of $5 per thousand feet leav- answer was filed the question arose as to ing him a net profit of $5 per thousand feet. whether the Elk Lick timber was embraced It is true that appellants prove by their in the contract, and it was fully discussed, superintendent that he could not get any one and the contract obtained and read for the to cut and haul the timber for less than $10 purpose of determining that point. Although per thousand feet, but we do not regard that the amended answer alleges that the conproof as of importance. It is not to be pre-tract was not filed with the petition and had sumed that any one would have taken the contract without the reasonable expectation of making a profit. It is true that appellee testified that the work of his teams was worth $10 per day, but he confines that to the work on that particular job. The verdict is not excessive.

not been in the papers, we find that this was also error, as the contract was filed with the petition on May 20, 1921. This contention about there being a mistake in the contract is without merit, and the jury so found.

[5-7] The remaining complaint is about the instructions. The instructions clearly present the law of the case, and they are free from just criticism. This was not a con

[3] It is urged that the court committed error in allowing witnesses to testify as to the amount of the timber on the land in ques-tract for personal service and therefore the tion without limiting the estimate to timber covered by the contract, that is, 15 inches and over at the butt. The whole lawsuit was over the timber mentioned in the contract, and we do not believe that the jury was at all misled by the statement of the witnesses as to the quantity of timber left on the land. Moreover, we find no objections to any such evidence, except in one instance, and there the question as to the quantity of merchantable timber left on the land was confined to timber 15 inches and over at the butt.

[4] The defense of appellants was based very largely upon the idea that the Elk Lick timber was omitted from the contract and that they had the right to terminate the contract when appellee refused to haul the timber from Elk Lick. There is not sufficient proof, in fact, very little proof at all, to show that the provision that appellee was to haul the Elk Lick timber was omitted from the contract by mistake. It appears that the superintendent for appellants had a talk with appellee and afterwards reported his conversation about the contract to appellants. Appellants then communicated with their attorneys and left instructions for them to prepare a contract. The contract was prepared and it contained no such provision. The evidence tends to show that appellee could not read the contract, but when he was directed to haul the Elk Lick timber he said at once that he had never agreed to do so. He did

court should not have submitted to the jury any question as to whether appellee could have obtained other employment. In such case the measure of damages is the difference between the contract price and the cost of performing the contract. The court did not depart from that rule in the case of Janin v. Herron, 206 Ky. 171, 266 S. W. 1058, when it said that the measure of damages was the difference between the reasonable cost of performing the contract and the contract price. Certainly the plaintiff in this case was entitled to make all the profit he could out of his contract, and the court did not make any mistake in allowing him to recover the profits which he would have made if he had not been denied an opportunity to complete his contract. Horn v. Carroll, 80 S. W. 518, 25 Ky. Law Rep. 2305; Id., 90 S. W. 559, 28 Ky. Law Rep. 839; Stearns Lumber Co. v. Inman, 154 Ky. 251, 157 S. W. 23; Harness v. Ky. Fluor Spar Co., 149 Ky. 65, 147 S. W. 934, Ann. Cas. 1914A, 803; Beckette v. Kinner, 167 Ky. 335, 180 S. W. 530; Baker v. Morris, 168 Ky. 168, 181 S. W. 943; Bond v. Patrick, 195 Ky. 37, 241 S. W. 342; R. Burleigh & Sons v. Overton, 173 Ky. 70, 190 S. W. 472.

Finding no error in the proceedings in the lower court, we have reached the conclusion that appellants have no just reason to complain of the verdict.

Judgment affirmed.

(291 S.W.)

DODSON V. DODSON et al.

(Court of Appeals of Kentucky. Feb. 8, 1927.) Appeal and error 882 (3)-Heir having relied on purchase of note in administrator's suit for settlement may not on appeal claim transaction was gift.

Where one of heirs in administrator's suit for settlement had disclaimed gift of certain note and relied entirely on its purchase, he will not be permitted on appeal to change his position and claim that note should be treated as a gift with a view to settlement in life, in view of finding that assignment was made without con

sideration.

Appeal from Circuit Court, Wayne County. Suit by George W. Dodson's administrator for settlement, wherein G. C. Dodson, L. H. Dodson, and others answered, and L. H. Dodson and others filed a cross-petition against G. C. Dodson. From the judgment, G. C. Dodson appeals. Affirmed.

Duncan & Bell, of Monticello, for appel

lant.

Bertram & Bertram, and J. M. Kennedy, all of Monticello, for appellees.

MCCANDLESS, J. George W. Dodson dies intestate in the year 1920 at the age of 91 years. He had no realty, and his administrator collected $3,865.41 of personalty, and paid the indebtedness due by the estate, but was unable to make distribution on account of dissensions among the heirs as to the amount of advancements made by the decedent during his lifetime. To determine this matter he filed a suit for settlement, and asked a reference to the commissioner to take proof and report. G. C. Dodson answered, denying any advancements to him or indebtedness by him or necessity for the reference.

under the control of G. C. Dodson, the latter wrongfully and unduly influenced him to transfer and assign to him a note secured by mortgage on one Adderholt for the sum of $907, which was done without any consideration, good or valuable. Recovery was sought for the estate for this sum. G. C. Dodson traversed the allegations of the cross-petition, pleaded affirmatively that the consideration for the land conveyed him was $1,600, and that this sum was its reasonable value at that time; that of this $1,000 was given as an advancement, and that in addition thereto he executed a note for $600, which he later paid decedent. He also pleaded that he purchased the Adderholt note for a good, valuable, and adequate consideration.

A large amount of testimony was taken, and as is usual in such cases it is more or less conflicting. The chancellor held: (1) that the farm conveyed to G. C. Dodson was

of the reasonable value of $3,500 at the time of the deed, that he had paid $600 thereon, leaving the sum of $2,900 as an advancement to him, and that he had thus received an advancement of $1,900 in excess of that received by each of the other heirs. (2) That he had not converted any of the $1,800 in gold as claimed by the other heirs. (3) That the Adderholt note was assigned and transferred to G. C. Dodson without any consideration, and he was adjudged to pay that note and its accumulated interest to the personal representative, and not permitted to share in the estate until the other heirs had been equalized to the extent of the $1,900 excess advancement he had received. G. C. Dodson appeals, and there is no cross-appeal.

While the evidence is conflicting as to the value of the land, appellant conceded that there is sufficient evidence to uphold the finding of the chancellor on the first item, and is not urging a reversal as to it. (2) No appeal is prosecuted from the chancellor's ruling on this item. (3) It is strongly contended that the chancellor erred in rendering a personal judgment against appellant for the amount of the Adderholt note. The ground of insistence is that it is not shown in the evidence and that the chancellor does not hold that G. W. Dodson did not have

The other five heirs filed a joint answer which was made a cross-petition against G. C. Dodson, in which they claimed that the personal property was largely in excess of the amount collected by the administrator. In the first paragraph of their pleading it was alleged that in the year 1900 the deceased conveyed a tract of land to G. C. Dodson of the value of $5,000 as an advancement, no other consideration being paid sufficient mentality to assign and transfer therefor; that he also advanced to each of his other five children the sum of $1.000; or its equivalent, and it was sought to charge G. C. Dodson with the sum of $4,000 as an excess advancement. In the second paragraph it was charged that G. C. Dodson converted to his own use $1,800 in gold belonging to deceased.

the note in question, or that such assignment was procured by undue influence, and that as the finding of the chancellor was that the assignment was made without consideration, it should be treated as a gift with a view to a settlement in life; that is, as an advancement, and not as a debt due the estate. However, appellant does not claim in 3. It is further alleged that G. C. Dodson his testimony that his father made him a lived with his father after the year 1900; gift of this note, and his conclusion of law that in November, 1919, at a time when de- is rebutted by his own evidence and also by cedent was feeple in mind and body and his pleadings. Thus in the original answer For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to the petition of the administrator he pleaded:

"Denies that in so far as he is concerned that the plaintiff cannot make a full and complete settlement of said estate; denies that there is or has ever been any advancements made to him by the decedent G. W. Dodson."

Appeal from Circuit Court, Pike County. Action by Georgia Thornberry against John Shaw and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Moore & Childers, of Pikeville, for appellants.

Daugherty & Barrett, of Pikeville, for ap

And in his reply to the cross-petition of pellee. the other heirs he pleads:

"Denies that he actually or at all received from his father, G. W. Dodson, deceased, the sum of $4,000 or any other sum more than any of the other children of said decedent; denies that any advancement had been made to him for which he has not been charged by the decedent; and denies that there is any excess advancements that should be charged against him now; denies that he should be charged with the sum of $4,000 or any other sum or at all before he receives any part or portion of the estate of said decedent."

SANDIDGE, C. Appellee instituted this action to recover from appellants Mr. and Mrs. John Shaw, makers, and W. L. Morris, G. H. Francisco, and E. D. Stevenson, indorsers, $1,060, the amount of a note held by her. Appellants, the makers of the note, defended upon the theory that in a deal whereby they sold a half interest in a drug store to V. O. Shivel and M. D. Flanary the latter assumed payment of the note and appellee, who then held the note, released them and agreed to look only to Shivel and Flan

And in the same pleading in reference to ary. After the evidence had been heard the the Adderholt note he says:

trial court, over appellants' objection, sustained appellee's motion for a directed verdict; hence the appeal.

[1-3] There is no testimony tending in the least to establish that appellee was a party to the deal whereby Shivel and Flanary assumed payment of the note held by her. What then occurred certainly did not as between appellee, the holder of the note, and appellants, makers, release the latter. There is evidence that, after the deal appellee agreed if Shivel and Flanary would make her a new note with good security, she would surrender the one she had and take the new note in lieu of it; but that was never done. That she accepted $160 from Shivel and Flanary on the note affords no evidence that she had released appellants, the makers. Shivel subsequently sold his interest in the drug store to Bernard Hale, who assumed Shivel's obligation as to the note contracted when he had purchased from the Shaws. A writing signed by appellee by which she released Shivel so far as he was obligated to her and to that extent agreed to look to Hale was filed in evidence. Appellee testified that it was given solely upon the condition that Hale and Flanary would make a new note with good security to take the place of the original note she held, which was never done. There was no contradiction of this testimony.

Conceding that the contract, by which Shivel and Flanary as between them and the Shaws, makers of the note, assumed its payment, was a contract for the benefit of

appellee, the holder of the note, to the extent that she might have a cause of action against the former for its enforcement, yet as she was no party to it the making of the contract did not operate to release the Shaws. Though the testimony is undisputed that the writing signed by appellee releasing Shivel

(291 S.W.)

Action by Enoch Creech against the Louisville & Nashville Railroad Company. Judg. ment for plaintiff, and defendant appeals. Reversed and remanded for further proceed

Woodward, Warfield & Hobson and Ashby M. Warren, all of Louisville, Hunt, Northcutt & Bush and C. S. Landrum, all of Lexington, and O. H. Pollard, of Jackson, for appellant. E. C. Hyden, of Jackson, for appellee.

and substituting Hale was given upon the
condition that a good new note be substitut-
ed for the one then held by appellee, which
was not done, if it be assumed that, by re-
leasing Shivel and substituting Hale, appel-ings.
lee could not thereafter, under the contract
made for her benefit by the Shaws of the
one part and Shivel and Flanary of the oth-
er, sue and recover from Shivel, that fact
would not operate to relieve Shivel of his
obligation to the Shaws. They were not par-
ties to that arrangement. Shivel's sale to
Hale created a situation as between him and
the Shaws exactly similar to that created
when the Shaws sold to Shivel and Flanary,
as between them and Mrs. Thornberry, the
holder of their note. It was merely a con-
tract for their benefit to which they were
not parties.

There being no evidence that appellee, the holder of the note, ever released appellants, its makers, the court properly directed a judgment for her.

Judgment affirmed.

LOUISVILLE & N. R. Co. v. CREECH. (Court of Appeals of Kentucky. Feb. 8,

1927.)

I. False imprisonment 7(5)-Conviction in federal court, after arrest by railroad detective, for possessing liquor, is not conclusive on question of legality of arrest.

MCCANDLESS, J. In this action for false arrest, Enoch Creech recovered a judgment against the Louisville & Nashville Railroad Company for $500. The company appeals.

The facts are these. Appellee was a carpenter in the employ of the railroad company. On the 17th of September, 1922, he and a companion, Robert Tharp, spent the night with a friend at Wolf Creek, in Breathitt county. On the following morning, they with two young ladies boarded the train at Wolf Creek. Appellee and his companion intended to leave the train at Jackson, the destination of the other couple being farther on. Tharp and his companion took a seat a short distance from the front of the car on the left side of the aisle facing the engine. Creech reversed the seat directly in front of them, and he and his companion occupied this seat with their backs to the engine, Creech being next to the aisle and the two couples facing each other and engaging in general conversation. Two private policemen were riding in the car; one of these, Paul Collier, was seat

In prosecution for false arrest by railroaded to the rear of Tharp on the same side of detective for possession of liquor, the fact of conviction in federal court on such charge is not conclusive on question of legality of arrest, in view of status of state officer before federal courts.

2. False imprisonment

7(3)—Instructions as to railroad detective's right to arrest for possessing liquor held erroneous.

In action for false arrest by railroad detective for possessing liquor, instructions that officers had no right to arrest unless plaintiff was drunk in their presence, or unless he was seen or known by them or one of them to be in possession of or transporting liquor, held erroneous, arrest being warranted if officers knew or had reasonable grounds to believe, and in good faith did believe, that plaintiff was unlawfully possessing or transporting liquor. 3. False imprisonment 7 (3)-Courts are liberal in construing rights of officer to arrest, without warrant, for offense committed in his presence.

In civil actions for false arrest by a public officer, where the defense is justification, courts are liberal in construing rights of officer to arrest, without warrant, for offense committed in his presence.

ty.

the aisle, and the other, A. S. Sizemore, was on the opposite side of the aisle and a few seats to the rear. Sizemore claims that Creech went to the toilet, and that on his return he smelled a strong odor of whisky, and that the conductor complained to him of this fact, and both he and Collier say that as the train reached Jackson, Creech arose and while standing in the aisle leaned over the seat talking to one of the young ladies; that this movement of his body raised his coat and exposed to their view a bottle in and extending above his hip pocket; they followed him and the young lady out of the car, and arrested him on the railway platform for having intoxicating liquor in his possession, and upon search found a partially filled bottle of moonshine whisky in his hip pocket. He was turned over to the local authorities, and his trial set for the following day. In the meantime, the matter was taken up by the federal Commissioner, and Creech and Sizemore did not appear at the trial in the local court, and the prosecution was dismissed. However, he was tried in the federal court and upon a plea of guilty was convicted of the offense charged at the time of the arrest.

Appeal from Circuit Court, Breathitt Coun- Sizemore explains his absence from the trial

in the local court by the fact that Creech was

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

an employee of the company, and he wanted, arrest, hence the judgment of the federal to be as light upon him as he could; that the court did not authorize a peremptory instrucpunishment in the state court carried impris- tion. onment, while that in the federal court might be, and was, a fine only.

In contradiction of his statement, other witnesses said that he told them that he had arrested Creech without a warrant and thought it wrongful, and therefore did not appear against him.

Appellee admits possession of the liquor, but says that he was aware of the presence of the officers on the train and was discreet in his actions; that he did not go to the toilet or take a drink that morning; and that he did not arise or stand in the aisle leaning over the seat. In this he is corroborated by Collier who testifies that there was no odor of liquor on appellee's breath.

It is urged first that the conviction in the federal court shows appellee's guilt and is conclusive proof of reasonable cause for the arrest, and that therefore a peremptory instruction should have been given.

It has been held that, in a suit for false imprisonment against an officer, a judgment of conviction of the offense charged is conclusive as to the reasonableness of the charge and constitutes a justifiable defense. Lou. Ry. Co. v. Hutti, 141 Ky. 512, 133 S. W. 200, 33 L. R. A. (N. S.) 867; Waddle v. Wilson, 164 Ky. 228, 175 S. W. 382; Holtman v. Bullock, 142 Ky. 335, 134 S. W. 480; Duerr v. K. & I. Bridge Co., 132 Ky. 228, 116 S. W. 325.

[2, 3] 2. The court instructed the jury, in substance, that the officers had no right to arrest the plaintiff unless he was drunk in their presence, or unless he was seen or known by them or one of them to be in possession of or transporting intoxicating liquor, and that, if the jury believed from the evidence that plaintiff was not drunk, or was not known by the officers or either of them to be guilty of possessing or transporting intoxicating liquor at the time of the arrest, they should find for the plaintiff. In the converse, they were told that, if the officers or either of them saw whisky in the possession of plaintiff, or knew that he was transporting same, and arrested him on either of said charges, they then had a right to search his person and had a right to arrest him, and that the verdict should be for the defendant. These instructions were erroneous. In civil actions for false arrest by a public officer, where the defense is justification, this court has liberally construed the rights of the officer in making an arrest without a warrant for an offense committed in his presence.

As said in Weaver, etc., v. McGovern, 122 Ky. 1, 90 S. W. 984, 28 Ky. Law Rep. 883:

"The rule now seems to be that a peace officer can arrest a person without a warrant, when the person is committing an offense in his presence, or when he has reasonable grounds for and does believe in good faith that the person is committing an offense in his presence."

This case followed and approved Easton v. Com., 82 S. W. 992, and is quoted with ap

[1] Unquestionably, the conviction for the offense charged is conclusive as to probable cause for the institution of the prosecution and constitutes a complete defense to a suit for malicious prosecution. Where the arrest is for an offense committed in the offi-proval in Com. v. Reed, 208 Ky. 590, 271 S. cers' presence, it also establishes the fact that such offense was committed, but, in justifying the officer in making the arrest without a warrant, perhaps it should be applied with more caution in cases where the offense is concealed and the evidence is developed by a search subsequent to the arrest. If such suit is pending in the state court and a judgment for conviction is also rendered in that court, it might be presumed that the right of arrest was determined in passing upon the admissibility of the evidence; and, upon the trial for false imprisonment, the court could presume that the arrest was therefore legal, but that presumption could hardly apply to a conviction for a violation of the liquor law in the federal court, for, while the same rules as to the admissibility of the evidence procured by unlawful search and seizure are enforced in both state and federal courts, the federal courts do not recognize the state officers as officials, but treat their evidence as that of a private citizen, hence in a trial in that tribunal the reasonableness of the search or seizure by a state official is not considered; and it cannot be held that the judgment of such court is conclusive as to the legality of the

W. 674. And, so far as we are advised, there is no dissent therefrom in any of the opinions in suits for false imprisonment. True. in cases where there is an objection to the admissibility of evidence procured by an illegal arrest and subsequent seizure, the Code provisions authorizing arrests without a warrant have been construed with more particularity, and, perhaps, with less liberality, in upholding the legality of such arrests. The difference in the construction seems to arise largely from the fact that in the latter class of cases, the court passing upon the admissibility of the evidence determines the facts, and as each case presents a different state of facts the language used necessarily varies. See Ingle v. Com., 204 Ky. 518, 264 S. W. 1088; Elswick v. Com., 202 Ky. 703. 261 S. W. 249; Spires v. Com., 207 Ky. 460, 269 S. W. 532, and cases cited therein. However that may be, the rule is too well established in this clas of cases to depart therefrom, and if, under the authorities quoted. Sizemore or Collier knew or had reasonable grounds to believe, and, in good faith, did believe, that Creech at the time and place was unlawfully possessing or transporting intoxi