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Lien of factor is both in law and equity, and is lost only by contract or parting with possession. Purchaser of principal always takes subject to factor's lien. Id.
There is no substantial difference between the effect of a pledge made by a factor and one made by a pledgee. First Natl. Bank of Louisville v. Boyce, 78 Ky. 42.
A factor has no right to pledge the goods of his principal, yet the amount sought to be recovered by the principal of an innocent pledgee of the factor must be reduced by the sum due from him to the factor. Id.
“As said by Judge Story, it is difficult to point out any substantial difference between the case of a pledgee and the case of a factor. The factor holds the goods of his principal as a security and a pledge for his advances and other dues, with the right to sell, as the pledgee has the right on the pledgor making default. In either case, it is much more than a mere lien; there is a right of dominion over the property to the extent of divestiture of title by sale; there is a right in the thing—a special property—that makes the rights of the pledgee and of the factor analogous." First National Bank of Louisville v. Boyce, 78 Ky. 47.
The factor is a trustee for the principal so long as he retains the property or its representative in his hands, and his assignees or legal representatives take it subject to the same trust, which they can not defeat by turning it into money, unless they should pay it away in their representative character before notice of the claim. Fahnestock v. Bailey, 3 Met. 50.
A factor can not deny the title of his principal. Jones v. Louisville Tob. Warehouse Co., 135 Ky. 824, 123 S. W. 307 (in extended opinion). See title BROKER, in this book.
FACTORY.–For note on meaning of factory in mino: employment statutes see 44 L. R. A. (N.S.) 1187.
FACTS.-The Civil Code requires only a statement of the facts constituting the cause of action. What the law implies need not be averred. Where plaintiff sold and delivered goods to defendant at his request, as charged in a petition, the law implied that defendant promised to pay for them. McCoy v. Field Grocery Co., 142 Ky. 812, 135 S. W. 319.
The allegation of a judgment which would be prima facie evidence of a fact, is not a sufficient allegation of the fact to warrant a recovery.
Gregory v. McFarland, 1 Duv. 62; Turner v. Hamlin, 152 Ky. 469, 153.S. W. 778.
The statement of a fact constituting a cause of action or defense can not be obviated by the statement of a fact which raises only a prima facie presumption of the fact relied on. Haggard v. Hay, 13 B. M. 176; Gregory v. McFarland, 1 Duv. 62.
Every essential averment required to make a declaration good at common law upon general demurrer must be made in the petition under the Code. Hill v. Barrett, 14 B. M. 84; Collins v. Blackburn, 14 B. M. 254; Riggs v. Maltby, 2 Met. 89; L. & P. Canal Co. v. Murphy, 9 Bush, 527.
Civil Code, Sec. 144, which provides that neither presumptions of law nor matters of which judicial notice is taken need be stated, does not refer to legal conclusions, such as the plea of nil debit; it refers to those presumptions of fact which the law raises upon the ascertainment of other facts. Gregory v. McFarland, 1 Duv. 60.
The law of another State is nothing but a fact, and must be pleaded as any other fact, with sufficient distinctness that the court may judge of what is the effect of the law. Roots v. Merriweather, 8 Bush, 398.
In pleading it is necessary to state all essential facts necessary to show the cause of action or defense relied on. King v. McLean, 1 J. J. M. 37; Hill v. Barrett, 14 B. M. 84; Moxley v. Morley, 2 Met. 311.
The pleading should state the facts themselves, and a mere statement of that which at most is but prima facie evidence of facts not expressed in that evidence, nor to be with reasonable certainty implied from it, does not apprize the defendant of the real cause of action, and is insufficient. Alexander & Lancashire v. Quigley's Ecrs., 1 Ky. Opin. 236.
In a criminal case it is error for the court to instruct the jury to consider all the facts and circumstances which the court has permitted as evidence “and which may be satisfactorily proved.” It is the duty of a jury to consider all the facts and circumstances which the proof tends to establish whether they were satisfactorily proved or not. O'Conner v. Com., 9 Ky. Opin. 143.
An indictment charging that the defendant "unlawfully exhibited a theatrical performance" is not good. It should aver the facts showing it to be unlawful. Pike v. Com., 2 Duv. 89.
As a general rule, the statement of a fact constituting a cause of action or defense can not be obviated by the statement of a fact which raises only a prima facie presumption of the fact relied upon. Morrison v. Fletcher, 108 S. W. 267, 32 R. 1162.
An amended pleading, which alleges that the proof shows a certain thing to be true and that the proof is uncontradicted, is properly disallowed, for pleadings should positively allege the existence of facts. Simpson v. Adams, 127 Ky. 790, 106 S. W. 819, 32 R. 617.
“It is a principle, ripened into a maxim, that the court responds to the law, and the jury to the facts.” Harrison v. Chiles, 3 Litt. 201.
For authorities as to pleading facts, see index to Newman's Pleading and Practice, under FACTS.
FACTUM A JUDICE.-Factum a judice quod ad ejus officium non spectat, non ratum est: an action of a judge which relates not to his office, is of no force. Cochran's Law Lexicon.
FAIL OR BE VOID.--A bequest to a person on condition that he be restored to his right mind is, on his dying without restoration, within Ky. Stats., Sec. 4843, providing that, in the absence of an expressed contrary intention, property embraced in a bequest which shall “fail, or be void, or otherwise incapable of taking effect,” shall not be included in the residuary bequest, but shall pass as in case of intestacy. Schroeder v. Bohlsen, 119 Ky. 305, 83 S. W. 627, 84 S. W. 535, 26 R. 1237.
FAILED.-It was not error to instruct that if defendant "failed” to leave the house of deceased the latter had the right to use such force as was necessary to eject him, instead of using the word “refused." Thomas v. Com., 74 S. W. 1062, 25 R. 201.
FAILED TO COMPLY WITH THE LAW.—Ky. Stats., Sec. 634, authorizing the issuance of a license to foreign insurance companies which have “fully complied with the laws of this State," and Sec. 753, authorizing the revocation of such license where a company has “failed to comply with the law,” etc., do
not authorize the revocation of a license unless the company has violated the statutes of the State governing insurance companies, the quoted words referring to the provisions of the statutes; and the Insurance Commissioner can not revoke a license of a foreign company because it has discharged its State manager by reason of his candidacy for trustee of the company on a ticket in opposition to the ticket supported by the trustees in office, and because it has spent a part of the company's funds in soliciting support for its candidates for trustees, the amount 80 spent not affecting its solvency. Mutual Life Ins. Co. of N. Y. v. Prewitt, 127 Ky. 399, 105 S. W.463, 31 R. 1319, 32 R. 298, 537.
FAILED TO DO ANY DUTY.-It was error to give an instruction authorizing a verdict for plaintiff if defendant's servants “failed to do any duty they were required to do,” without specifying the duties required. L. & N. R. Co. v. Clark's Admr., 105 Ky. 571, 49 S. W. 323, 20 R. 1375.
FAILING TO GIVE.-A prosecution "for failing to give in a true list of his property subject to taxation,” is too uncertain. Alexander v. Com., 1 Bibb, 515.
FAILURE. It is a substantial failure if the foundation of a house cracks so as to leak and crumble immediately after its completion whereas if it had been properly constructed it would have done neither. Nance v. Patterson Bldg. Co., 140 Ky. 564, 131 S. W. 484.
FAILURE OF DUTY.-"The doctrine as to actionable negligence is that it must be a failure to discharge some duty devolved on the railroad company to the individual entitled to the right, and not for a failure of duty to others than himself.” Brown's Admr. v. L. & N. R. Co., 97 Ky. 236.
FAILURE OF PROOF.-“If, however, the allegation of the claim or defense, to which the proof is directed, be unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof. In an action on a contract alleged to have been made by several defendants, in the event the evidence shall show the contract to have been made with less than all those defendants by whom it is alleged to have been made, this shall not be
deemed either a variance or failure of proof, but judgment may be rendered against the party or parties shown to be bound and in favor of those shown not to be bound.” Civil Code, Sec. 131.
Where the circumstances attending the injury show nothing as to real cause, but leave it to conjecture as to whether it was the negligence of the master or the fault of the injured servant or unaccountable accident, there is a failure of proof. C. & 0. Ry. Co. v. Walker's Admr., 159 Ky. 237; Rogers' Admr. v. Kosmos Portland Cement Co., 163 Ky. 84, 173 S. W. 317.
Under Sec. 131 of the Civil Code, if the allegation to which the proof is directed, be unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, but a failure of proof. Prestonsburg Coal Co. v. Wallen, 159 Ky. 369, 167 S. W. 395.
When the allegation to which the proof is directed is unproved in its general scope and meaning, it is deemed a failure of proof, not a variance. Gossom v. Badgett, 6 Bush, 101. See, also, VARIANCE.
FAILURE TO REPORT.-To constitute a willful failure to report to the auditor certain facts as a basis for the valuation of the corporate franchise, as required by Sec. 4087, Ky. Stats., it is not necessary that the corporation shall have actual knowledge of the law requiring the report. Lou. & Jeff. Ferry Co. v. Com., 104 Ky. 726, 47 S. W. 877, 20 R. 927. See, also, WILLFUL.
FAIR CASH VALUE.—“All property, not exempted from taxation by this Constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale.” Ky. Constitution (1891), Sec. 172.
FAIR MARKET VALUE.-"The measure of damages for property taken, injured or destroyed under power of eminent domain in Kentucky, where part of the tract is taken, is the fair market value of the part taken, considering it in relation to the entire tract, together with such other direct damages as