(218 S.W.)

each, shows that Reid was to account for these notes in his settlement with Wiley. On the same date the note for $2,228.13 was credited by the sum of $165.69, the amount due H. L. Wiley on the James E. Gholson notes. In addition to all this, H. L. Wiley's letter of condolence to E. E. Reid, dated September 18, 1899, contains the following language:

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 written after the entry was made, and in which appears the following: "And then we have the note 2,228 not yet due to contend with"-shows very plainly that the note was not paid. Nor is the argument based upon the contention that Wiley was not otherwise indebted to Reid & Son, and that the Reids could not have paid Wiley for the goods sold to Petty in any other way than by satisfying the notes in question, entitled to much consideration. It clearly appears that there were two $2,500 notes executed by Wiley & Co. to the Reids, besides other notes. Wiley's letter of March 5, 1897, shows exactly how the Petty transaction was settled. In that letter Wiley

says:

"Proximating the note we owe to Ernest and the money you have advanced on debts of H. L. Wiley & Co. at 6150.00 and letting the Pettie matter but 3760.00 and putting out goods enough to make 2000.00 additional credit on those two items would leave 390.00 or thereabouts."

In

This shows that the firm of H. L. Wiley & Co. was indebted to Ernest and also to E. O. Reid for money advanced on the debts of H. L. Wiley & Co. in the sum of about $6,150. The amount received from Petty by Reid was $3,760. In using the words "letting the Pettie matter but 3760.00," Wiley meant that the Petty item of $3,760 should be a set-off against the $6,150 to that extent. That this is the effect of the language used is clearly shown by adding 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. other words, this letter leaves no doubt that Wiley & Co. were indebted to the Reids for money advanced on their debts, and that the consideration which the Reids received from Petty was credited on this indebtedness, and not on the indebtedness represented by the original purchase notes. It must also be remembered that, while the two first notes originally executed by Wiley were canceled and found among his papers, the two notes sued on were still in the possession of the Reids. Furthermore, the receipt given by Wiley to E. O. Reid on January 8, 1898, cannot be construed as a full settlement of all transactions between them for the following reasons: On April 11, 1899, Reid wrote to Wiley and stated that a certain note for $441.25 was credited by him on the note for $2,074.47 dated May 8, 1895, and that after this credit was made there remained a balance due of about $30. Indorsed on the back of the $2,074.47 note sued on is the credit referred to in Reid's letter. The receipt, given

"I expect that I can do you some good in the Ark. affairs, and as I am owing you all," etc.

Manifestly, Reid would not have been making credits on the notes in question long after that time if they had been settled by the agreement of January 8, 1898, nor would Wiley have been writing to Ernest Reid that he was then indebted to him. We therefore conclude that the plea of payment was not sustained. On the contrary, the evidence shows that there was a balance of $30 due April 11, 1899, on the note for $2,074.47, and that there is still due on the $2,228.13 note the full amount thereof, subject to a credit of $165.69 paid April 30, 1901.

Since plaintiff's right to a lien on the land covered by the mortgage and now owned by certain defendants was not passed on by the chancellor, we refrain from expressing an opinion on the question, and remand the case, with directions to enter judgment in conformity with this opinion, and determine whether plaintiff has lien on the mortgaged property to secure the amount adjudged to

be due.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

AMERICAN RY. EXPRESS CO. v. COM-
MONWEALTH (five cases).

(Court of Appeals of Kentucky. June 20,
1919. Rehearing Denied March 12, 1920.)
1. MUNICIPAL CORPORATIONS 642(1)-V10-
LATION OF ORDINANCE

APPEAL AMOUNT OF FINE-VALIDITY OF ORDINANCE.

Under Ky. St. § 3519, providing for appeal to the Court of Appeals to test the validity of ordinances of fourth class cities, in cases where fines of $20 or less are imposed or authorized, that court has jurisdiction to review a judgment imposing on an express company, for failure to pay a license tax, a fine of $20 in each of five cases, where the question involved is the validity of the license tax ordinance. 2. LICENSES 7(8) - DOUBLE TAXATION FRANCHISE AND LICENSE TAXES.

Although a city may not tax a corporation's right to do business in the city after collecting from it a franchise tax, it may impose a license fee upon such agencies as are not essential in the conduct of its business.

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

3. LICENSES 7(8)
FRANCHISE AND LICENSE TAXES.

DOUBLE TAXATION

An ordinance of a fourth class city, imposing on express companies not required to obtain a municipal franchise under Const. § 164, a license tax under Ky. St. § 3490, for maintaining an office or agent in the city, is invalid as to an express company which has paid to the city a franchise tax under sections 40774091, since it involves double taxation, in violation of Const. § 171; such ordinance being a revenue measure and not a police regulation, and taxing an essential agency necessary in the conduct of the business.

Carroll, C. J., dissenting.

Lawrenceburg belongs, it is provided the validity of an ordinance of such a city may be tested by appeal from the judgment of the police court to the circuit court, and thence to the Court of Appeals, "in cases where fines of twenty dollars or less are imposed or authorized," a provision for testing the validity of an ordinance of a city of this class radically different from the method provided for testing the validity of ordinances of cities of the fifth and possibly other classes. Sevier v. City of Barboursville, 180 Ky. 553, 204 S. W. 294, L. R. A. 1918F, 1128.

Since the fine imposed in each case was

Appeal from Circuit Court, Anderson $20 and defendant's only defense was the County.

Five suits by the Commonwealth against the American Railway Express Company. From the judgment against defendant, it appeals. Reversed and remanded, with directions.

Chas. C. Fox, of Danville, for appellant.
F. R. Feland, of Lawrenceburg, for the

Commonwealth.

CLARKE, J. The appellant was found guilty and fined in the Lawrenceburg police court upon each of five warrants charging it with "having committed the offense of engaging in an occupation for which a license is required without first procuring or paying for a license." The five cases were by agreement heard together and without a jury; and while the defendant's guilt and the imposition of a fine of $20 under each warrant is set out in separate paragraphs of a single judgment, but one recovery is adjudged thereon, and that for $100, the aggregate of the five fines assessed, with costs in all five

cases.

Upon a single appeal bond and supersedeas the defendant appealed to the circuit court, where, however, the five cases were separately docketed, and upon an agreed statement of facts all were again submitted to the court together and without a jury, resulting in another single judgment for $100 and costs in all five cases against defendant, following separate findings of guilt and the imposition of a fine of $20 in each of the five cases. From that judgment the company has prosecuted a single appeal to this court.

[1] That the parties with the consent of the trial court cannot, by combining several cases and having the aggregate amount of the several fines adjudged in one judgment, confer jurisdiction upon this court it does not possess as to any of the combined cases considered separately was held, and the reasons given therefor, by this court in the recently decided case of Adams Express Co. v. Bradley, 179 Ky. 239, 200 S. W. 340. But by section 3519 of the statutes, a part of the charter of cities of the fourth class, to which

alleged invalidity of the city ordinance under which the warrants were issued and the fines

imposed, it is manifest that we have jurisdiction to review the judgment in each case, all five of which are here.

[2] 2. The ground upon which the validity of the ordinance in question is asserted is that the defendant, by reason of having paid to the city its franchise tax for the year 1918, is exempt from the imposition by the city for the same year of a license or occupational tax.

Appellant cites and relies upon the case of Cumberland Tel. & Tel. Co., etc., v. Hopkins, etc., 121 Ky. 850, 90 S. W. 594, 28 Ky. Law Rep. 846, where we held that the payment of a license fee could not be imposed by the city of Eminence upon either a railroad company or a telephone company, which had paid to the city for the same period a franchise tax under sections 4077-4091, inc., of Kentucky Statutes, although the city had express legislative authority so to do under section 3637, Kentucky Statutes, a part of the charter of cities of the fifth class, to which Eminence belonged. This because the attempted license tax was a tax upon a privilege included in the property tax already imposed as a franchise tax, and therefore a tax upon the same property against the same owner for the same year, and double taxation in violation of the uniformity of taxation required by section 171 of the Constitution.

It was further held in that case that the power thus given "to impose and collect license fees upon all franchises is revenue provision," although coupled with other matters more properly coming under the head of police powers, and that the franchise tax paid by the corporations, although a property tax, was not distinct from the occupation tax the town under legislative authority was attempting to impose upon them.

The appellant here had paid to the city of Lawrenceburg exactly the same kind of a franchise tax under sections 4077-4091, inc., of the Statutes as the railroad company and telephone company had paid to the city of Eminence and the contested license tax was imposed under express and similar legislative

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

(218 S.W.)

the city, and this case comes squarely under the Eminence Case as explained in the Boldrick Case.

The Calhoun Case, supra, is not applicable because it is conceded appellant was not required to procure a franchise from the city under section 164 of the Constitution in order to entitle it to do business therein.

Wherefore, the judgment in each case is reversed, and the cause remanded, with directions to dismiss the warrants.

CARROLL, C. J., dissents. See 219 S. W.

427.

BOWER & BOWER v. COLLINSWORTH. (Court of Appeals of Kentucky. Jan. 27, 1920.)

authority in both instances, the authority being given to the cities, the one of the fourth and the other of the fifth class, by sections 3490 and 3637, respectively of the Statutes. There is therefore no point of difference in the two cases, if as a matter of fact the privileges attempted to be licensed are the same. In the Eminence case the license was upon the railroad company's selling tickets and handling freight, and upon the telephone company's maintaining an exchange in the city, and the doing of these things was essential to the exercise of the franchise within the city; but it is only the essential things a corporation must do in order to exercise its franchise that are covered and taxed by the imposition of the franchise tax, as has been clearly pointed out by the court 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, supra, was approved, but in each of which a license tax was held to be valid, although the complaining corporations had paid, as has appellant, a franchise tax under sections 4077-4091, inc., of the Statutes; the distinction being, as explained in the Boldrick Case, that although a city may not tax a corporation's right to do business in the city after collecting from it a franchise tax, it may nevertheless impose a license fee upon such agencies or instrumentalities as are not essential or indispensable necessities in the conduct of its business, and which the company has elected to adopt as a means of facilitating or increasing its business.

[3] It therefore becomes necessary to examine the ordinance involved here, to determine whether it imposes a license fee upon an essential agency or instrumentality employed by appellant in conducting its business in the city. If it does, this case is controlled by the Eminence case, supra, and the ordinance, being evidently a revenue measure and not a police regulation, is invalid as to appellant.

It seems to be agreed by counsel, although there is no copy of the ordinance in the record, and is indicated by the warrants, that the ordinance imposes an annual license tax that shall be paid by various persons and corporations for doing business in the city of Lawrenceburg, and that the provisions thereof applicable to appellant is as stated in brief for appellant:

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

While one partner cannot sue his copartner, except to settle the partnership, on a claim growing out of a partnership transaction, until the business is wound up, where one partner brought an action at common law which was transferred to equity without objection, and subsequently referred to a commissioner by agreement of the parties, defendants cannot after adverse judgment object for the first time on appeal to the character of the proceeding. 2. PARTNERSHIP 121-THAT PARTNER WAS TO BEAR EXPENSES AT PLACE OF SALE OF CATTLE SHOWN BY EVIDENCE.

Where plaintiff and defendants entered into a partnership for the purchase and sale of cattle, evidence held to show that defendants the line and not charge any commission there, were to bear the expenses at the selling end of and hence could not charge the partnership for yardage, feed, and bedding of the cattle at that point, and plaintiff might recover from defendants one-half of the sum so charged. 3. PARTNERSHIP 84-CONTRACT CONSTRUED

to

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

Where plaintiff and defendants entered ina partnership agreement for the purchase and sale of cattle providing that defendants were not to charge any commissions at a certain point where the cattle were to be sold, the selling end of the line, defendants were and that they were to bear the expenses at liable for half of the commissions on the sale of the cattle at other points, notwithstanding that the contract did not in terms provide that commission should be paid on cattle so sold.

"For each express company maintaining an 4. PARTNERSHIP 84. office or agent in the city, $25.00."

As the company could not conduct its business in the city without both an office and an agent it is clear that both the agency and the instrumentality upon which the tax is imposed are essentials and indispensably necessary in conducting appellant's business in

CONTRACT FOR PURCHASING CATTLE CONSTRUED TO INCLUDE EXPENSES OF PASTURAGE TO FIT THEM FOR MARKET.

fendants provided that plaintiff was to purWhere a contract between plaintiff and dechase cattle for defendants to sell, plaintiff to bear the ordinary expenses of buying, herding, and driving the cattle to the shipping point including their feed and bedding, expenses of

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

EY RECEIVED IN RELEASE OF CONTRACT OF sion on the sale of 39 cattle in the year

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

(218 S. W.)

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

[1] The first ground urged for a reversal is that one partner cannot maintain an action against his copartner, except to settle the partnership, on a claim growing out of a partnership transaction, until the business is wound up and the accounts finally settled, and that the petition should have been dismissed because plaintiff brought suit to recover certain balances alleged to be due in certain partnership transactions without asking a settlement of the partnership accounts. We find, however, that the action which was brought at common law was transferred to equity without objection, and was subsequently referred to the commissioner by agreement of the parties. At no point in the proceedings was there a demurrer, a motion, or other step attacking the form of the action, or raising the question that the action could not be maintained. Issue was joined on the items pleaded, and the right of the commissioner to hear proof and report thereon, and of the court to determine the issues, was not questioned. On the contrary, appellants treated the case as properly brought and properly tried and were willing to take the chance of a decision in their favor. After an adverse judgment, they object for the first time in this court to the character and form of the proceeding and insist that it cannot be maintained. Under these circumstances, the objection will not be considered and any error in the charac ter or form of the proceeding will be deemed to have waived. Preston v. Brown, 62 S. W. 265, 22 Ky. Law Rep. 1944; Robards v. Jenkins, 76 S. W. 10, 25 Ky. Law Rep.

2296.

incurred for yardage, feed, and bedding of cattle at Cleveland. Since this was an expense incurred at the selling end of the line, and therefore one which the defendants obligated themselves to pay, we agree with the commissioner and the chancellor that plaintiff is entitled to recover one-half of that sum, or the sum of $700.

[3] We also conclude that plaintiff was entitled to recover the item of $49.50, being one-half of the commission on the sale of certain cattle at other points than Cleveland. Defendants insist that they should not pay this commission because their agreement was merely not to charge any commissions at Cleveland, while these cattle were sold elsewhere. While it may be true that the contract did not provide in terms that the commissions should be paid by defendants on the cattle sold away from Cleveland, we conclude that it was within the spirit of the contract that they should bear this expense. The shipments were made to Pittsburg and Jersey City at defendants' request. It was certainly not intended that they should reap a profit at the expense of plaintiff, which they would do on this transaction and could have done on all the transactions had they directed the cattle to be shipped to other points than Cleveland.

[4] With respect to the claim of $505.12 for pasturage, the facts are as follows: The partnership had accumulated a largo number of cattle, which, because of the bad market conditions and of the condition of the cattle themselves, it was not advisable to sell at that time. Defendants contend that the purchase of such a large number of unfit cattle was due to plaintiff's fault, and he

[2] Collinsworth testified that, by the terms of the partnership contract, Bower & Bow-stated to defendants' agent that he would not er were to furnish the money to buy the cattle and pay all the expenses at the selling end of the line, while he was to bear the expense incident to the purchase of the cattle and their delivery at the shipping point, and the profits were to be equally divided. On the other hand, Bower & Bower's agent, who made the agreement with Collinsworth, testified that Bower & Bower were to furnish the money and a man to assist in purchasing the cattle, and were not to charge any commissions at Cleveland. The question sharply presented, therefore, is whether Bower & Bower agreed to bear all the expense at the selling end of the line, or merely not to charge any commissions there. Both the commissioner and the chancellor decided this question in favor of Collinsworth, and, since there is a direct conflict in the evidence of the only two witnesses who testified on the question, we are unable to say that the finding is opposed to the weight of the evidence, and for this reason the finding will not be disturbed. It appears that defendants charg

make any charge for pasturage. Plaintiff denies this fact and says that a large number of the cattle were purchased by defendants' agent. A portion of these cattle were turned over to other farmers who were paid for their pasturage. The remainder were kept by plaintiff. While it is true that plaintiff was to bear the ordinary expense of buying, herding, and driving the cattle to the shipping point, including their feed and bedding in the meantime, it was not contemplated by the contract that he should bear this expense when the cattle were not shipped to the market within a reasonable time, but had to be placed on pasture in order to fit them for market. In other words, a condition arose that was not contemplated by the contract, and plaintiff's position with respect to the cattle placed in his charge was the same as that of the farmers who pastured other portions of the same bunch of cattle. The partnership having paid for pasturing the other cattle, and having received the benefit of the pasturage furnished by plaintiff for the remainder of the cattle, a