Commissioner's Sale of Property-Exceptions to Sale-Inadequacy
of Price-Sale Will not be Set Aside for Inadequacy of Price.
-The exceptions to commissioner's sale of property were
properly overruled where they were not sustained by the
evidence and where the things complained of did not affect
the sale. The question of the raise by the Board of Equal-
zation has no merit, and the inclusion of the taxes by the
commissioner, while an error, was not material, the property
bringing $14,000 less than the debt, interest and costs; while
in the matter of inadequacy of price this court will not set
aside a sale because of inadequacy of price alone. Rudd, et
al. v. Turner, et al.....
Contracts-Action to Compel Specific Performance-Will-
Takes Effect Immediately Before Death of Testator.-The
judgment enforcing a specific performance of the contract,
whereby appellees, as executors of the will of Francis Bernet
sold appellant a lot of ground was proper. Although the lot
was devised the testator by the will of his wife, pursuant to
a power to so dispose of it, conferred by a deed made sub-
sequently to the execution of her will, the devise passed to
him a valid title to the lot, as under sections 4845 and 4889,
Kentucky Statutes, the will of the wife with reference to the
real estate devised and the power of appointment exercised
took effect as if executed immediately before the death of the
testator, a contrary intention not appearing by the will. Han-
kins v. Columbia Trust Co., et al..
Contract-Counterclaim-Instruction.-Plaintiff
cover the contract price of certain timber sold to defendant.
Defendant claimed that plaintiff sold him certain timber in
addition to that described in the petition, and that he had
been enjoined from cutting a portion of the additional timber
and from removing a portion which he had already cut. Held,
that an instruction authorizing a recovery on the defendant's
counterclaim for only the standing timber, was erroneous,
as defendant, if his contention was proper, was entitled to
recover not only for the standing timber, but also the timber
which he had cut and had been enjoined from removing.
Lang v. Bach
Evidence. Where plaintiff claims that he sold defendant the
timber within a certain boundary, and the defendant claims
that plaintiff sold him the timber from a larger boundary, evi-
dence to the effect that plaintiff agreed to select a certain
party to point out the boundary and did appoint such party
who pointed out the boundary to defendant's agent who
branded the trees within the boundary so pointed out, is ad-
missible as as bearing on the question of what timber was
actually sold.
Liquidated Claim-Interest.-The law is now well settled
that a liquidated claim, whether oral or written, carries with
it interest from the time it was due, in the absence of any
agreement to the contrary. Idem
Contracts-Remedies for Breach Of.-Where a contract stipu-
lated that the person who furnished to a telephone company
money to build a telephone line, were to be repaid the money
advanced out of the receipts for the service, upon the failure
of the company to keep its lines in good order or to deliver
the receipts, the persons furnishing the money had the right
to bring a suit for the full amount of their debt, and enforce
the lien upon the property given them by the contract.
Eastern Ky. Telp. & Telg. Co. v. Hardwick, et al........
Contracts-Assignability.-A contract is not assignable where
it involves a personal liability, a relation of personal confi-
dence, or calls for the skill or experience of one of the par-
ties. Haag & Bro. v. Reichert
Same-Assent to Assignment.-But where the obligor of a
contract for personal services assents to its assignment
either in words or by acts sufficient to warrant his assent, the
assignment is valid and the contract may be enforced by the
assignee. Idem
Same Parties Only are Bound.-One can not be bound by the
provisions of a contract between other parties; they can only
bind themselves. Idem
9. Cross Appeal.-A cross appeal can only be granted by the
Court of Appeals. A cross appeal granted by the circuit court
will not be considered. Idem
10. Contracts-Building Warrant-Balance Due-Failure of Ar-
Ichitect to Give Warrant-Evidence.-Where, under a building
contract it was stipulated that 85 per cent. of the contract
price was to be paid during the construction of the building,
the failure of the architect to give the contractors a warrant
for the balance will not defeat them in their attempt to col-
lect it, where the claim is supported by sufficient evidence.
Potter College v. Collett & Bro.
11. Written Contract-Limitation.-Where the contract was in
writing, a payment on it made in 1894 prevented the statutes
of limitation from defeating the claim, the action having
been brought within the fifteen year period. Idem
12. Contracts-Restraint of Trade-Reasonable Restriction.-
Where defendant sells to plaintiff his livery and undertak-
ing business, together with his good will, and agrees not to
engage in the same business within fifty miles of the place
where the business is located for a period of ten years,
and it appears that the restriction is necessary for the
protection of plaintiff from competition at the hands of
defendant, the restriction as to time and place is reasonable,
and such contract is not void because in restraint of trade.
Linnemann & Moore v. Allison & Yates ...
13. Injunction..-Where the seller in violation of his agreement
again engages in the same business with another party
within the restricted territory and within the time forbid-
den by the contract, the purchaser may enjoin them from
Idein
continuing the business.
14. Waiver of Right to Demand Strict Compliance With.-
Where a contract of lease provided that if one thousand dol-
lars was not paid by the lessee on or before a specified date
the lease should be null and void, the lessor by accepting on
the day the money should have been paid a check for the
amount of it and holding the check twenty days before return-
ing it to the lessee, waived his right to claim a forfeiture of
the contract on account of the failure to pay the money accord-
ing to its terms, Stafford v. Pinson, et al.
15. Where a contract is contained in two separate and dis-
tinct papers, they will be read together for the purpose of
ascertaining the true contract. Sackett v. Maggard.... .... 500
16. Same-When it may be Modified by Parol Proof.-Parol evi-
dence is not admissible to contradict a written contract,
except in cases of fraud or mistake, or where there is vice in
the contract. Idem
17. Signing Without Reading-Effect.-Where the defendant signs
a contract without reading it he is bound by it in the absence
of misrepresentation as to it. J. I. Case Threshing Machine
Co. v. Mattingly ....
18. Same-Express Warranty-Merger of Oral Agreement.—
Where a thresher is sold under an express warranty in writ
ing, the writing merges any previous oral agreement, and
the rights of the parties must be determined from the writ-
ing. Idem ...
19. Subsequent Agreement-Counterclaim.-Where the defend-
ant relies on a subsequent agreement by the maker of the
machine to put it in order, and it is shown that it did come
and work on the machine, and he expressed himself satis-
fied, and made no further complaint, he can not rely upon a
counterclaim based on the failure of the maker to put the
machine in order. Idem ...
20. Mutuality-Option of Parties.-A contract to be binding
must be mutual. One party can not be bound while the ther
has not the option to accept or reject its terms. Second Nat.
Bank of Ashland, et al. v. Rouse, et al.
21. Contract for Growing Timber-Writing.-A note can not be
accepted as an evidence of a contract for the sale of grow-
ing timber which contemplates that some memorandum, at
least evidencing the contract, must be signed by the seller
and delivered by him to the buyer or to some one represent-
ing him.
Idem
22. Growing Timber-Sale-Evidenced by Writing.-As a gen-
eral rule growing trees are treated as realty to the extent
that the title to them will not pass without some writing
evidencing same. In this State it is well settled that where
the trees are not sold for immediate severance and re-
moval from the soil, title to them can only be passed by
some writing signed by the parties to be bound, and de-
livered to the purchaser. Idem
23. Contracts-Rescission.-Plaintiff sold defendant certain tim-
ber on four tracts of land. Defendant failed to comply with
his contract. Plaintiff sued to enforce his claim for purchase
money. Defendant claimed that plaintiff had no title to the
timber on certain tracts, and was unable to comply with his
contract and asked that the petition be dismissed. Subse-
quently by amended answer he agreed to waive plaintiff's ina-
bility to comply with the contract, and elected to take and
pay for the timber on one tract. At the same time he asked
the return of a certain cash consideration paid on the timber
in case the court was of the opinion that the contract should
be rescinded. Held that the court's action in rescinding the
contract of sale and returning to defendant his money with
interest gave defendant what he asked for, and did substan-
tial justice between the parties. Mechling v. Potter
CORPORATIONS-See Appeals 2.
Corporations Private-Statutory
Statutes, Chapter 32.-Any number of persons, not less than
three, are empowered by statute to become incorporated for
doing business by complying with the requirements of the
chapters on private corporations. (Chapter 32, Kentucky
Statutes.) Randolph, et al. v. Ballard County Bank ........ 145
Powers Derived From State. When incorporated under the
general law now, the corporation's powers are derived from
the State and are as if the particular corporation was named
in the statute and its articles were embodied therein. Idem.. 145
Engaging in Business Without Being Incorporated. To en-
gage in the business of a corporation without becoming incor-
porated under the statute is to violate the provisions of the
article on corporations. To exceed that which the statute al-
lows is no less a violation of the law. Idem
Directors-Liability.-Directors of corporations alone have
If they allow managing officers
the power of their control.
of the corporation to exceed or otherwise to violate the char-
ter of the company, or any provision of the statute regulating
them, it is intended by Section 550 of the statute to hold them
personally liable for the defection. They are immune from
personal liability when they do their duty imposed by the
statute, when they neglect that duty, or wilfully violate
it, they are liable for the consequences. Idem
Sale of Stock-Right to Sue Director for Deceit. The pur-
chaser of stock from a director of a corporation, who was in-
duced to purchase by reason of representations made by the
director as to the value of the stock, may sue to recover the
difference between the actual and represented value of the
stock; and if the director knew or by the exercise of rea-
sonable diligence could have known that his representa-
tions were false, he will be liable. Long v. Douthitt. .... 427
Duties of Director.-The director of a corporation is required
to exercise such diligence to understand the condition of the
corporation as an ordinarily prudent man would use in the
management of his own business under similar circumstances.
Idem.
Charters. When the charter of a corporation expires, and it
continues in business, the property held in its name should
be taxed in its name, and as its property for two years,
and after that time it should be taxed in the name of the
stockholders and as their property. Ewald Iron Co. v. Com-
monwealth
Holding Real Estate-Limitation.-A corporation whose char-
ter has expired, and which is doing no business except to
wind up its affairs, is not within the purview of Section 192
of the Constitution, and the time it so holds real estate is not
to be counted in the five years' limit under that section.
Louisville Banking Co. v. Commonwealth ...
9. Corporation Officers-Capacity to Make Contract.-Where the
President of a corporation was mentally incapable of making
a contract, but only signed it after the terms had been agreed
upon and put in writing under the direction of the secretary,
treasurer and manager, the contract was binding upon the
corporation. Samuels & Co. v. Gilmore & Co.....
166
10. Right to Rely Upon Incapacity of Officer.-In order that a
corporation may rely upon the mental incapacity cf its officer
or agent to make a contract on behalf of the corporation, it
must be clearly established that the contracting agent did
not, at the time the contract was entered into, have sufficient
capacity to know and understand what he was doing. Idem.. 167
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