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(218 S.W.) evidence of the payment of the note for $2,- | by E. E. Reid on April 30, 1901, for the 228.13, for the very simple reason that three James E. Gholson notes for $312.50 Wiley's letter of March 5, 1897, which was each, shows that Reid was to account for written after the entry was made, and in these notes in his settiement with Wiley. which appears the following: “And then we On the same date the note for $2,228.13 was have the note 2,228 not yet due to con- credited by the sum of $165.69, the amount tend with"-shows very plainly that the due H. L. Wiley on the James E. Gholson note was not paid. Nor is the argument notes. In addition to all this, H. L. Wiley's based upon the contention that Wiley was letter of condolence to E. E. Reid, dated not otherwise indebted to Reid & Son, and September 18, 1899, contains the following that the Reids could not have paid Wiley language: for the goods sold to Petty in any other

"I expect that I can do you some good in the way than by satisfying the notes in ques- Ark, affairs, and as I am owing you all,” etc. tion, entitled to much consideration. It clearly appears that there were two $2,500

Manifestly, Reid would not have been maknotes executed by Wiley & Co. to the Reids, ing credits on the notes in question long besides other notes. Wiley's letter of March after that time if they had been settled by 5, 1897, shows exactly how the Petty trans- the agreement of January 8, 1898, nor would action was settled. In that letter Wiley Wiley have been writing to Ernest Reid that says:

he was then indebted to him. We therefore

conclude that the plea of payment was not "Proximating the note we owe to Ernest and

sustained. the money you bave advanced on debts of H. L. shows that there was a balance of $30 due

On the contrary, the evidence Wiley & Co. at 6150.00 and letting the Pettie matter but 3760.00 and putting out goods April 11, 1899, on the note for $2,074.47, and enough to make 2000.00 additional credit on

that there is still due on the $2,228.13 note those two items would leave 390.00 or there the full amount thereof, subject to a credit abouts."

of $165.69 paid April 30, 1901.

Since plaintiff's right to a lien on the land This shows that the firm of H. L. Wiley covered by the mortgage and now owned by & Co. was indebted to Ernest and also to certain defendants was not passed on by the E. 0. Reid for money advanced on the debts chancellor, we refrain from expressing an of H. L. Wiley & Co. in the sum of about opinion on the question, and remand the $6,150. The amount received from Petty case, with directions to enter judgment in by Reid was $3,760. In using the words conformity with this opinion, and determine “letting the Pettie matter but 3760.00," whether plaintiff has lien on the mortgaged Wiley meant that the Petty item of $3,760 property to secure the amount adjudged to

be due.

to that extent. That this is the effect of the language used is clearly shown by adding for proceedings consistent with this opinion. the $3,760 and the $2,000, and deducting the sum from the $6,150, thus obtaining the balance of $390.00 stated in the letter. In other words, this letter leaves no doubt that AMERICAN RY. EXPRESS CO. V. COMWiley & Co. were indebted to the Reids for

MONWEALTH (five cases). money advanced on their debts, and that the consideration which the Reids received from (Court of Appeals of Kentucky. June 20, Petty was credited on this indebtedness, and

1919. Rebearing Denied March 12, 1920.) not on the indebtedness represented by the 1. MUNICIPAL CORPORATIONS C 642(1)— V10original purchase notes. It must also be

LATION OF ORDINANCE - APPEAL-AMOUNT remembered that, while the two first notes OF FINE-VALIDITY OF ORDINANCE. originally executed by Wiley were canceled Under Ky. St. $ 3519, providing for appeal and found among his papers, the two notes to the Court of Appeals to test the validity of sued on were still in the possession of the ordinances of fourth class cities, in cases where Reids. Furthermore, the receipt given by fines of $20 or less are imposed or authorized, Wiley to E. O. Reid on January 8, 1898, can

that court has jurisdiction to review a judgnot be construed as a full settlement of all

ment imposing on an express company, for failtransactions between them for the following of five cases, where the question involved is

ure to pay a license tax, a fine of $20 in each reasons: On April 11, 1899, Reid wrote to the validity of the license tax ordinance. Wiley and stated that a certain note for $141.25 was credited by him on the note for

2. LICENSES Ow7(8) – DOUBLE TAXATION

FRANCHISE AND LICENSE TAXES. $2,074.47 dated May 8, 1895, and that after this credit was made there remained a bal- tion's right to do business in the city after col

Although a city may not tax a corporaance due of about $30. Indorsed on the back iecting from it a franchise tax, it may impose of the $2,074.47 note sued on is the credit re a license fee upon such agencies as are not esferred to in Reid's letter. The receipt, given sential in the conduct of its business.

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

3. LICENSES (8) DOUBLE TAXATION Lawrenceburg belongs, it is provided the FRANCHISE AND LICENSE TAXES.

validity of an ordinance of such a city may An ordinance of a fourth class city, impos- be tested by appeal from the judgment of the ing on express companies not required to ob- police court to the circuit court, and thence tain a municipal franchise under Const. § 164, to the Court of Appeals, “in cases where fines a license tax under Ky. St. § 3490, for main; of twenty dollars or less are imposed or autaining an office or agent in the city, is invalid as to an express company which has paid to thorized,” a provision for testing the validity the city a franchise tax under sections 4077- of an ordinance of a city of this class radi4091, since it involves double taxation, in rio-cally different from the method provided for lation of Const. 8 171; such ordinance being a testing the validity of ordinances of cities of revenue measure and not a police regulation, the fifth and possibly other classes. Sevier v. and taxing an essential agency necessary in the City of Barboursville, 180 Ky. 553, 204 S. W. conduct of the business.

291, L. R. A. 1918F, 1128. Carroll, C. J., dissenting.

Since the fine imposed in each case was Appeal from Circuit Court, Anderson $20 and defendant's only defense was the County.

alleged invalidity of the city ordinance under

which the warrants were issued and the fines Five suits by the Commonwealth against imposed, it is manifest that we have juristhe American Railway Express Company. diction to review the judgment in each case, From the judgment against defendant, it all five of which are here. appeals. Reversed and remanded, with di [2] 2. The ground upon which the validity rections.

of the ordinance in question is asserted is Chas. C. Fox, of Danville, for appellant.

that the defendant, by reason of having paid

to the city its franchise tax for the year 1918, F. R. Feland, of Lawrenceburg, for the Commonwealth.

is exempt from the imposition by the city for

the same year of a license or occupational CLARKE, J. The appellant was found tax. guilty and fined in the Lawrenceburg police Appellant cites and relies upon the case of court upon each of five warrants charging it Cumberland Tel. & Tel. Co., etc., v. Hopkins, with "having committed the offense of engag- etc., 121 Ky. 850, 90 S. W. 594, 28 Ky. Law ing in an occupation for which a license is Rep. 846, where we held that the payment of required without first procuring or paying a license fee could not be imposed by the for a license." The five cases were by agree- city of Eminence upon either a railroad com. ment heard together and without a jury; and pany or a telephone company, which had paid while the defendant's guilt and the imposi- to the city for the same period a franchise tion of a fine of $20 under each warrant is tax under sections 4077_4091, inc., of Kenset out in separate paragraphs of a single tucky Statutes, although the city had express judgment, but one recovery is adjudged legislative authority so to do under section thereon, and that for $100, the aggregate of 3637, Kentucky Statutes, a part of the charthe five fines assessed, with costs in all five ter of cities of the fifth class, to which Emi.

nence belonged. This because the attempted Upon a single appeal bond and supersedeas license tax was a tax upon a privilege includthe defendant appealed to the circuit court, ed in the property tax already imposed as a where, however, the five cases were separate franchise tax, and therefore a tax upon the ly docketed, and upon an agreed statement same property against the same owner for of facts all were again submitted to the court the same year, and double taxation in violatogetber and without a jury, resulting in an- tion of the uniformity of taxation required other single judgment for $100 and costs in by section 171 of the Constitution. all five cases against defendant, following It was further held in that case that the separate findings of guilt and the imposition power thus given "to impose and collect li. of a fine ofa $20 in each of the five cases. cense fees upon all franchises is revenue proFrom that judgment the company has pros- vision," although coupled with other matecuted a single appeal to this court.

ters more properly coming under the head of [1] That the parties with the consent of police powers, and that the franchise tax the trial court cannot, by combining several paid by the corporations, although a property cases and having the aggregate amount of tax, was not distinct from the occupation tax the several fines adjudged in one judgment, the town under legislative authority was at. confer jurisdiction upon this court it does tempting to impose upon them. not possess as to any of the combined cases The appellant here had paid to the city of considered separately was held, and the rea- Lawrenceburg exactly the same kind of a sons given therefor, by this court in the franchise tax under sections 4077-4091, inc., recently decided case of Adams Express Co. of the Statutes as the railroad company and v. Bradley, 179 Ky. 239, 200 S. W. 340. But telephone company had paid to the city of by section 3519 of the statutes, a part of the Eminence and the contested license tax was charter of cities of the fourth class, to which imposed under express and similar legislative

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

cases.

TO CHARACTER OF PROCEEDING CANNOT BE
URGED FOR FIRST TIME ON APPEAL.

(218 S.W.) authority in both instances, the authority be, the city, and this case comes squarely under ing given to the cities, the one of the fourth the Eminence Case as explained in the Boldand the other of the fifth class, by sections rick Case. 3490 and 3637, respectively of the Statutes. The Calhoun Case, supra, is not applicable

There is therefore no point of difference in because it is conceded appellant was not rethe two cases, if as a matter of fact the privi- quired to procure a franchise from the city leges attempted to be licensed are the same. under section 164 of the Constitution in order In the Eminence case the license was upon to entitle it to do business therein. the railroad company's selling tickets and Wherefore, the judgment in each case is handling freight, and upon the telephone reversed, and the cause remanded, with dicompany's maintaining an exchange in the rections to dismiss the warrants. city, and the doing of these things was essen CARROLL, C. J., dissents. See 219 S. W. tial to the exercise of the franchise with-427. in the city; but it is only the essential things a corporation must do in order to exercise its franchise that are covered and

BOWER & BOWER v. COLLINSWORTH. taxed by the imposition of the franchise tax,

(Court of Appeals of Kentucky. Jan. 27, as has been clearly pointed out by the court

1920.) in Adams Express Co. v. Boldrick, 141 Ky. 111, 132 S. W. 174, and Cumberland Tel. & 1. APPEAL AND ERROR 183_OBJECTION AS Tel. Co. v. Calhoun, 151 Ky. 241, 151 S. W. 659, in both of which the Eminence case,

While one partner cannot sue his copartsupra, was approved, but in each of which a ner, except to settle the partnership, on a license tax was held to be valid, although the claim growing out of a partnership transaction, complaining corporations had paid, as has until the business is wound up, where one appellant, a franchise tax under sections partner brought an action at common law which 4077–4091, inc., of the Statutes; the distinc- was transferred to equity without objection, tion being, as explained in the Boldrick and subsequently referred to a commissioner Case, that although a city may not tax a by agreement of the parties, defendants cannot corporation's right to do business in the city after adverse judgment object for the first time after collecting from it a franchise tax, it on appeal to the character of the proceeding. may nevertheless impose a license fee upon 2. PARTNERSHIP 121—THAT PARTNER WAS such agencies or instrumentalities as are not TO BEAR EXPENSES AT PLACE OF SALE OF essential or indispensable necessities in the CATTLE SHOWN BY EVIDENCE. conduct of its business, and which the com Where plaintiff and defendants entered inpany has elected to adopt as a means of facil- to a partnership for the purchase and sale of

cattle, evidence held to show that defendants itating or increasing its business. [3] It therefore becomes necessary to ex- the line and not charge any commission there,

were to bear the expenses at the selling end of amine the ordinance involved here, to de- and hence could not charge the partnership termine whether it imposes a license fee up- for yardage, feed, and bedding of the cattle at on an essential agency or instrumentality em- that point, and plaintiff might recover from deployed by appellant in conducting its business fendants one-half of the sum so charged. in the city. If it does, this case is controlled 3. PARTNERSHIP Om84–CONTRACT CONSTRUED by the Eminence case, supra, and the ordi. nance, being evidently a revenue measure and not a police regulation, is invalid as to Where plaintiff and defendants entered inappellant.

to a partnership agreement for the purchase It seems to be agreed by counsel, although and sale of cattle providing that defendants there is no copy of the ordinance in the rec

were not to charge any commissions at a cerord, and is indicated by the warrants, that tain point where the cattle were to be sold, the ordinance imposes an annual license tax the selling end of the line, defendants were

and that they were to bear the expenses at that shall be paid by various persons and cor- liable for half of the commissions on the sale porations for doing business in the city of of the cattle at other points, notwithstanding Lawrenceburg, and that the provisions there that the contract did not in terms provide of applicable to appellant is as stated in that commission should be paid on cattle so brief for appellant:

sold. "For each express company maintaining an 4. PARTNERSHIP Om84 – CONTRACT FOR PURoffice or agent in the city, $25.00.”

CHASING CATTLE CONSTRUED TO INCLUDE EX

PENSES OF PASTURAGE TO FIT THEM FOR MARAs the company could not conduct its business in the city without both an office and an fendants provided that plaintiff was to pur

Where a contract between plaintiff and deagent it is clear that both the agency and the chase cattle for defendants to sell, plaintiff to instrumentality upon which the tax is im- bear the ordinary expenses of buying, herding, posed are essentials and indispensably neces- and driving the cattle to the shipping point insary in conducting appellant's business in cluding their feed and bedding, expenses of

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

TO ALLOW RECOVERY FROM OTHER PARTNER
OF EXPENSES IN SALE OF CATTLE.

KET.

erroneous.

pasturage to fit the cattle for market were not In the month of September, 1917, Collinssuch expenses as were included in the contract. worth brought suit against Bower & Bow5. PAYMENT O 73(1) EVIDENCE INSUFFI

er to recover the following sums : CIENT TO SHOW PAYMENT OF CLAIM FOR MON

(1) $49.50, being one-half of the commisEY RECEIVED IN RELEASE OF CONTRACT OF sion on the sale of 39 cattle in the year THIRD PARTY.

1913, and of 20 cattle and 450 lamb in the In an action between plaintiff and defend year 1915. ants to recover certain sums under a partner (2) $700, being one-half of the sum exship contract for the purchase and sale of pended by Bower & Bower for yardage, bed. stock, evidence held not to show payment to ding, and feeding the cattle at Cleveland plaintiff of his share of money paid the partner and charged to the partnership. ship by a seller of hogs to be released from his contract.

(3) $505.12, being one-half of the cost of

pasturing certain cattle on plaintiff's farm. 6. PARTNERSHIP Omw 306 CHECK PLACED IN HANDS OF LAWYER FOR COLLECTION HELD

collected from farmers during the years 1914, NOT PROFIT UNTIL PAID.

Where a contract between plaintiff and de- 1915, and 1916 on notes executed by them fendants for the purchase and sale of cattle for the purchase price of cattle under an provided for a division of profits, a check for agreement by the partnership to repurchase the purchase price of the cattle sold, not paid, the cattle. but placed in the hands of a lawyer for collec (5) $132.21, the balance of one-half the tion, does not constitute profits until payment, profit realized from the sale of 90 head of 7. PARTNERSHIP 86-FINDING IN SUIT BE

cattle to Hill & Garver. TWEEN PARTNERS AS TO CLAIM FOR PROFITS

(6) $52.47, being one-half the profit on 30 ON CONTRACT ERRONEOUS.

head of cattle sold to T. R. McGlothin. Where a partnership contract provided for

(7) $138.41, plaintiff's half of the profits on equal payment of profits on the sale of cer- | 30 cattle sold to James and N. E. Ellis, 23 tain cattle, and defendants' agent made an au sold to S. H. Kiser, and 30 sold to H. Lamthorized settlement with a customer who was bert. claiming one-half of the profits of a certain (8) $162.50, being one-half of the purchase sale, to accept one-third of such profits, plain- price of certain hogs paid to Phil Preece tiff was entitled to only one-half of the re- and refunded by him, and of $25 paid by maining two-thirds, and judgment for more was

Preece to secure his release from the con

tract. 8. PARTNERSHIP Cm 120-RECOVERY IN

Issue was joined as to all of the above

items, as well as to the terms of the conTRANSACTIONS MUST BE LIMITED TO SUCH TRANSACTIONS.

tract pleaded by plaintiff. By agreement of Where

was referred to the a partnership contract provided the parties the case for equal division of certain profits on the sale commissioner, who found for plaintiff on the of cattle, and plaintiff sued on certain specific following items: $44.50, commission on sales transactions and not for settlement of the part- away from Cleveland; $279.79, balance of nership, his recovery must be confined to those profit on Hill & Garver transaction, togethtransactions and should not embrace transac

er with interest amounting to $59.64; $162.tions not specifically pleaded.

50, one-half of the sum collected from Phil Appeal from Circuit Court, Lawrence Preece; $138.41, one-half of the profits on County.

the Ellis, Lambert, and Kiser deals; $700 Action by Jeff Collinsworth against Bow Cleveland; $74.79, interest on the sale of the

for yardage, feeding, and bedding cattle at er & Bower. From the judgment rendered, Belcher cattle, and another item of interest both parties appeal. Affirmed on cross-ap-amounting to $213. The claim for $395.36, peal, and reversed on original appeal.

or one-half of $796.72, for interest charged M. S. Burns, of Louisa, and Ed. C. O'Rear against the partnership in 1913 and 1914, and J. C. Jones, both of Frankfort, for ap-together with interest for $42.50 on note pellant.

executed to defendants, was not allowed. Fred M. Vinson, of Ashland, W. D. O'Neal, The claim for $505.12 for pasture was also of Catlettsburg, and John M. Waugh, of rejected. Exceptions were filed by both parAshland, for appellee.

ties. Plaintiff's exceptions were sustained, CLAY, C. Bower & Bower were commis: in his favor for the following sums :

and on final hearing judgment was rendered sion merchants at Cleveland, Ohio, engaged in the business of buying and selling cat. Yardage, bedding, and feed...

$700 (9 tle. Jeff Collinsworth was a farmer resid

Commission (sales away from Cleveland)..

49 50 ing in Lawrence county, Ky. In June, 1919, Hill & Garver matter..

434 91 Bower & Bower entered into a contract of Interest on Hill & Garver resale. partnership with Collinsworth by which they T. R. MeGlothin sale..

Preece

deal.......... agreed to buy and sell cattle and divide the

Queen cattle.. profits.

Kiser, Ellis, and Lambert cattle..

SUIT
DUE ON

PARTNERS

FOR

PROFITS

BETWEEN
SPECIFIC

Pasture

505 12

51 93 138 41

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

(218 SW.) The defendants appeal, and plaintiff prose- , ed the partnership with $1,400 for expenses cutes a cross-appeal.

incurred for yardage, feed, and bedding of [1] The first ground urged for a reversal | cattle at Cleveland. Since this was an exis that one partner cannot maintain an ac pense incurred at the selling end of the line, tion against his copartner, except to settle and therefore one which the defendants obthe partnership, on a claim growing out of ligated themselves to pay, we agree with the a partnership transaction, until the business commissioner and the chancellor that plainis wound up and the accounts finally set- tiff is entitled to recover one-half of that tled, and that the petition should have been sum, or the sum of $700. disinissed because plaintiff brought suit to [3] We also conclude that plaintiff was recover certain balances alleged to be due in entitled to recover the item of $49.50, being certain partnership transactions without one-half of the commission on the sale of asking a settlement of the partnership ac- certain cattle at other points than Clevecounts. We find, however, that the action land. Defendants insist that they should which was brought at common law was trans- not pay this commission because their agree. ferred to equity without objection, and was ment was merely not to charge any commissubsequently referred to the commissioner sions at Cleveland, while these cattle were by agreement of the parties. At no point in sold elsewhere. While it may be true that the proceedings was there a demurrer, a mo- the contract did not provide in terms that tion, or other step attacking the form of the the commissions should be paid by defendants action, or raising the question that the ac on the cattle soíd away from Cleveland, we tion could not be maintained. Issue was conclude that it was within the spirit of the joined on the items pleaded, and the right contract that they should bear this expense. of the commissioner to hear proof and re- The shipments were made to Pittsburg and port thereon, and of the court to determine Jersey City at defendants' request. It was the issues, was not questioned. On the con- certainly not intended that they should reap trary, appellants treated the case as properly a profit at the expense of plaintiff, which brought and properly tried and were will they would do on this transaction and could ing to take the chance of a decision in their have done on all the transactions had they favor. After an adverse judgment, they ob-directed the cattle to be shipped to other ject for the first time in this court to the points than Cleveland. character and form of the proceeding and [4] With respect to the claim of $505.12 insist that it cannot be maintained. Under for pasturage, the facts are as follows: these circumstances, the objection will not The partnership had accumulated a largo be considered and any error in the charac. number of cattle, which, because of the bad ter or form of the proceeding will. be deem market conditions and of the condition of ed to have waived. Preston v. Brown, 62 the cattle themselves, it was not advisable S. W. 265, 22 Ky. Law Rep. 1914; Robards to sell at that time. Defendants contend that v. Jenkins, 76 s. w. 10, 25 Ky. Law Rep. the purchase of such a large number of un2296. [2] Collinsworth testified that, by the terms stated to defendants' agent that he would not

fit cattle was due to plaintiff's fault, and he of the partnership contract, Bower & Bower were to furnish the money to buy the cat- denies this fact and says that a large num

make any charge for pasturage. Plaintiff tle and pay all the expenses at the selling ber of the cattle were purchased by defendend of the line, while he was to bear the ants' agent. A portion of these cattle were expense incident to the purchase of the cat- turned over to other farmers who were paid tle and their delivery at the shipping point, for their pasturage. The remainder were and the profits were to be equally divided. kept by plaintiff. While it is true that plainOn the other hand, Bower & Bower's agent, tiff was to bear the ordinary expense of buywho made the agreement with Collinsworth, ing, herding, and driving the cattle to the testified that Bower & Bower were to furnish shipping point, including their feed and bedthe money and a man to assist in purchas- ding in the meantime, it was not contemplating the cattle, and were not to charge any ed by the contract that he should bear this commissions at Cleveland. The question expense when the cattle were not shipped to sharply presented, therefore, is whether Bow- the market within a reasonable time, but er & Bower agreed to bear all the expense had to be placed on pasture in order to fit at the selling end of the line, or merely not them for market. In other words, a condito charge any commissions there. Both the tion arose that was not contemplated by the commissioner and the chancellor decided this contract, and plaintiff's position with requestion in favor of Collinsworth, and, since spect to the cattle placed in his charge was there is a direct conflict in the evidence of the same as that of the farmers who pasturthe only two witnesses who testified on the ed other portions of the same bunch of catquestion, we are unable to say that the find- tle. The partnership having paid for pasing is opposed to the weight of the evidence, turing the other cattle, and having received and for this reason the finding will not be the benefit of the pasturage furnished by disturbed. It appears that defendants charg- plaintiff for the remainder of the cattle, a

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