FIELDS BROS. v. BLANE, &c.

(Filed November 20, 1896-Not to be reported.)

Tobacco warehousemen-Tobacco warehousemen having, in the usual course of business, received tobacco from one who was not the owner, they are not liable to the owner for its proceeds unless they were notified of his claim before the sale or before they had paid over or accounted for the proceeds; and in this action by the owner to recover the proceeds, the evidence as to the notice to defendants of his claim being conflicting, the court erred in taking that question from the jury by instructing them to find for plaintiff if they believed from the evidence that he was the owner.

Burnett & Dallam for appellants.

James T. Webb and R. E. Johnston for appellees.
Appeal from Graves Circuit Court.

Opinion of the court by Judge Landes.

The action was to recover the proceeds of a quantity of tobacco, which was prized by appellees, George Robbins and W. L. Blane, for appellee, W. E. Blane, and being in part the contents of three hogsheads, which were shipped to the appellants, tobacco warehousemen, by Robbins and Blane. in their name, and sold by the appellants for account of Robbins and Blane.

It was alleged in the petition that said Robbins and Blane and the appellants converted the entire proceeds of the tobacco, amounting to $130.38, to their own use, and that they had "failed and refused to pay said money to plaintiff, or any part of same, although often requested to do so."

Issue was joined, and under the peremptory instructions of the court the jury returned a verdict for Robbins and Blane, and the petition was dismissed as to them. The case was submitted to the jury, however, on the issue made by the appellants, on the evidence and the instructions of the court as to the law, and the jury returned a verdict for the appellee, W. E. Blane, against them for the amount claimed in the petition, upon which judgment was rendered, and this appeal is prosecuted from that judgment, motion for a new trial having been made by appellants and overruled.

It appears from the evidence that the appellants had advanced a large amount of money to Robbins and Blane, who were engaged in the purchase and handling of tobacco, to enable them to buy tobacco, all of which they agreed to ship to the appellants to 'be inspected and sold at their warehouse in Paducah, who were to make their usual charges for the storing and selling the tobacco, and to credit the proceeds of the sale to the account of Robbins and Blane. Under this arrangement Robbins and Blane shipped to the appellants about 130 hogsheads of tobacco, the tobacco in controversy, which was prized by them under contract with appellee, W. E. Blane, being in three of these hogsheads, and being part of the tobacco that was sold by the appellants for the account of Robbins and Blane. The proceeds of these shipments having been credited by the appellants to Robbins and Blane, it was found at the close of the transaction that the latter owed the appellants a balance of about $2,800 on account of money advanced under the arrangement between them. Meantime, Robbins and Blane, being insolvent, made an assignment for the benefit of their creditors, and the amount of the balance ow

ing by them to the appellants was transferred to Robbins by the appellants for 50 cents on the dollar.

The appellants denied in their pleadings the charge that they had any notice that the tobacco in controversy was owned or claimed by the plaintiff, W. E. Blane, and the testimony on that issue was conflicting.

The appellants complain, first, that the court erred in overruling their demurrer to the petition, and claim that the petition was insufficient.

Although the petition might have been more definite in some es sential particulars, yet it is sufficiently definite and plain to a common intent to make known to the defendants, not only the amount claimed by plaintiff, but also the grounds upon which it was sought to make them both liable to him. The demurrer was, therefore, properly overruled.

Further complaint is made that the court erred in the instructions given to the jury at the instance of plaintiff. The instruction complained of is in the following language: "The court instructs the jury that if they believe by a preponderance of the evidence that the plaintiff, W. E. Blane, was the owner of the tobacco sued for or any part of it, they must find for the plaintiff the reasonable cash value of the tobacco owned by him, not exceeding the value alleged in the petition, $19.27 for the lugs, or $81.11 for the leaf, or $130.38 for all."

It is the opinion of the court that the court below erred in giving this instruction. It may be true that the tobacco in controversy did belong to the plaintiff, and that his ownership of it was sufficiently established by the evidence, and yet upon the issues made that the appellants were not liable to him for the proceeds of it. Being warehousemen, and having come into the possession of the tobacco lawfully and in the natural course of business, they were not liable for the proceeds of it unless they were notified before the sale, or before they had paid over, or had accounted for the proceeds if they were paid over, or accounted for by them, to Robbins and Blane, that the plaintiff was the owner, or that he claimed to be the owner of the tobacco or its proceeds. (Abernathy & Long v. Wheeler, Mills & Co., 92 Ky., 320.)

The question of fact in issue as to whether the appellants had paid over the proceeds of the tobacco to Robbins and Blane, their principals, or accounted for the proceeds on a settlement with them, and that before that was done they had actual notice of the plaintiff's claim to the tobacco or its proceeds, was in effect taken by the court from the jury in the instruction complained of. The instruction was, in effect, a peremptory instruction to find for the plaintiff against the appellants.

The evidence on that question of fact being in conflict, the appellants were entitled to have it passed on by the jury, and the instruction complained of was erroneous and prejudicial to the substantial rights of the appellants on its merits. It is not necessary to refer to any other alleged errors. The principles of law applicable to such cases are well settled, and were fully stated in the case referred, to.

For the error mentioned the judgment is reversed and the cause remanded, with directions to grant the appellants a new trial, and for further proceedings consistent with this opinion.

BALLOWE, &c. v. HILLMAN, &C.

(Filed November 21, 1896-Not to be reported.)

1. Right of plaintiff to introduce testimony after motion for peremptory instruction--There can be no reversal in this case because of the action of the court in permitting the plaintiff to introduce additional testimony after a motion had been made by defendant for a peremptory instruction, the trial court having a reasonable discretion as to that matter, and there being no abuse of discretion in this case.

2. Validity of land patent- A patent for 75,000 acres of land, giving the entire boundary and then excluding "all those surveys of land to which there is now a lawful title," without designating the boundaries excluded, is not void for uncertainty, but passes the title to all the vacant and unappropriated land within the boundary called for by the patent.

3. Same The fact that a patent embraces 10.000 acres of land. although calling for only 8,000 acres, does not affect its validity.

W. G. Bullitt for appellants.

Fenton Sims and R. A. Burnett for appellees.

Appeal from Trigg Circuit Court.

Opinion of the court by Judge Guffy.

It is substantially alleged in the petition that the plaintiffs below, appellees here, were the owners of and entitled to the possession of 200 acres of land in Trigg county and that appellants were in the unlawful and wrongful possession of the same, and had been and were damaging the same, and appellees sought to enjoin the appellants from further damaging the land, as well as to recover judgment for possession of the land and damages for the trespass, etc.

A demurrer of the appellants to the petition having been properly overruled, they answered. The substance of the answer is that appellant Ballowe is the real party in interest; that Stafford was merely his agent, and that the land was vacant land, and that the county of Trigg had a right to sell the same, and that said appellant bought the same and took out a county warrant therefor, but the county surveyor, who was an agent for appellees, refused to survey the land for appellant, therefore appellant took actual possession of said land with intent to improve it for himself; also denied that plaintiffs had any right or title to the said 200 acres; denied that it was inside of any legal patent or deed to plaintiffs.

The reply of plaintiffs traversed all averments adverse to appellees' title.

A trial resulted in a verdict and judgment in favor of appellees, plaintiffs below.

The appellants moved for a new trial and assigned nine different reasons or grounds therefor. The third ground complains of the failure of the court to give a peremptory instruction to find for the defendants, but, on the contrary, suggested to plaintiffs what additional testimony was necessary to their case, and in opening up the case for plaintiffs to introduce such testimony. The bill of exceptions does not show that the court made such suggestion; but does show that plaintiffs were allowed to introduce additional evidence. The trial court should be allowed a reasonable discretion in such cases, and it does not appear that there was any abuse of discretion in this case, hence we conclude that the court below did not err in refusing the peremptory instruction.

It is also claimed that the court erred in allowing the patent from the Commonwealth of Kentucky to Edwin A. McCaughan, of date 18th April, 1853, for 8,000 acres of land to be read to the jury; also erred in allowing to be read the deed from McCaughan to Hillman, of date 28th January, 1853, for 3,753 acres. Other grounds are relied on, to the effect that the court erred in giving and refusing instructions, which need not be noticed at length.

The chief question presented for decision is as to the validity of the said 8,000-acre patent. Appellants contend that the patent is void because it includes land theretofore patented, and also void for uncertainty and because it includes 10,000 acres when only 8,000 were patented or named.

If the patent passed the title to the patentee to all the land included in the boundary except the parcels excluded, then it is pretty clear that appellees were entitied to recover, for they are certainly the remote vendees of the patentee.

It appears that the entire boundary given in the patent includes or embraces about 75,000 acres; but the patent “excluded all those surveys of land to which there is now a lawful title."

Such patents have been heretofore held by this court to be valid and to pass the title to all the vacant and unappropriated land within the boundary called for by the patent. (Hall v. Martin, 89 Ky., 9.)

It is clearly proven that the patent embraces and includes the land in contest, and the same is true of the subsequent deeds on down to the appellees; and these facts being established, appellees were entitled to recover. Hence it is not necessary to determine whether or not the court erred in giving or refusing other instructions, for the reason that such errors, if any, did not prejudice the substantial rights of the appellants. The fact that the patent embraces 10,000 acres of land, although calling for only 8,000, can not affect appellees' right to recover,

The proof conduces to show that appellants had actual notice of appellees' title before taking possession of the land in contest. Judgment affirmed.

KALER, &C. V. GRADY.

(Filed November 24, 1896-Not to be reported.)

Statute of frauds-Where the land of a decedent, sold under decree of court to satisfy a lien upon it, brought less than two-thirds of its appraised value. any one of the heirs had the right to redeem, and certain of the heirs having refrained from redeeming upon the faith of the purchaser's promise that if they would not redeem he would pay to one of them the value of her interest in the land or convey to her a part of the land, that agreement, in so far as it related to the promise to pay the value of the particular interest in the land. was not within the statute of frauds, and is therefore enforcible, although not in writing. It is not necessary to determine whether the promise to convey a part of the land was within the statute of frauds, as that part of the agreement is not sought to be enforced.

E. F. Bullock and Thomas G. Poore for appellants.

J. M. Brummel & Son for appellee.

Appeal from Hickman Circuit Court.

Opinion of the court by Judge Landes.

A tract of about 50 acres of land, which was owned by W. B. Grady in his lifetime, was sold by a commissioner under a judgment rendered in the Hickman Circuit Court in an action commenced after his death by Dr. George Beeler, on a debt owing by him and secured by a lien on the land, against his administrator and his four children, who were his only heirs at law, the appellant, Mrs. Kaler, and the appellee being two of them. Previous to the sale the commissioner caused the land to be appraised as required by the statute, and the appraisers fixed the value of it at $1,000. The appellee was the purchaser of the land at a price less than two-thirds of its value so fixed, and it was therefore subject to redemption by any of the heirs of W. B. Grady, deceased.

It was alleged in the petition, in substance, that the plaintiffs, appellants here, had made arrangements to redeem the land, and that they were able and would have redeemed it within the period allowed by the statute for redemption, but that they were induced to and did relinquish their purpose to redeem it by the promise and undertaking of the appellee (not alleged to be in writing), that if they would not do so, but would allow him to pay the Beeler debt and take a conveyance of the land to himself from the commissioner, by virtue of his said purchase, he would pay plaintiffs the value of the interest of Mrs. Kaler as one of the heirs of W. B. Grady, deceased, in the land, alter paying the Beeler debt, or that he would convey to Mrs. Kaler a quantity of the land sufficient to pay her for her said interest or portion, "and if they could not agree upon the price of the land, then he would pay her the money." The meaning of the last sentence, which is accurately quoted from the petition as it is copied in the record, is somewhat obscure. But the object and prayer of the petition, as it relates to the alleged promise of the appellee, was to recover of him the value of the onefourth interest of Mrs. Kaler in the land, after deducting one-fourth of the sum that was paid by the appellee in satisfaction of the Beeler debt and costs, it being alleged that the land was conveyed to the appellee by the commissioner, and a copy of the deed filed as an exhibit with the petition, and that the appellee had refused either to pay the appellants for Mrs. Kaler's part of the land or to convey to them any part of the land.

The court below sustained a demurrer to the petition and also to two successive amendments thereto, which were offered by the appellants, and, the petition having been thus disposed of by the judgment of the court, this appeal was prayed and prosecuted from that judgment.

It is contended by the learned counsel for the appellee that the promise, undertaking or contract set up in the petition is within the statute of frauds, and that this action on it could not be maintained because it was not alleged to have been made in writing.

It is not necessary for us now to decide whether the promise alleged to have been made by the appellee to convey a part of the land to Mrs. Kaler is within the statute of frauds or not. But the promise to pay Mrs. Kaler the value of her interest in the land, as one of the heirs of W. R. Grady, deceased, upon the conditions alleged in the petition and performed by the appellants, if true, as admitted by the demurrer, is not within the statute, and an action may be maintained on it, even though it does not appear to have been in writing. Such a promise or contract is not "for the sale of real estate," and therefore need not be in writing in order to be actionable. (Ky.