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(248 S.W.) jury at the conclusion of the commonwealth's , and clarified by the introduction of oral testievidence.

mony, cannot be applied, where the contract [6-8] It is finally contended for appellant sued on, which was attached to the petition, was that his motion for a peremptory instruc- a standard form complete in every detail, adopttion should have been sustained. It is the ed by plaintiff for use by it among its retail rule that where there are any facts introduc- tail dealer as a complete contract, and so ac

dealers everywhere, and was offered to its reed in evidence from which the guilt of the accepted and executed by him. cused can reasonably be deduced, the case should be submitted to the jury under appro- 3. Reformation of instruments Com 37-Mistake priate instruction, although a conviction bas

must be alleged to be mutual, ed on the evidence would be regarded as flag

Before one can have reformation of a writrantiy against it. The finding of a discharg- ten instrument upon the grounds of mistake, he ed shell at the place of the assassination that the mistake was mutual, not unilateral, so

must allege and prove by satisfactory evidence which could have been fired from appellant's that a counterclaim, alleging that the contract shotgun, the evidence to the effect that he sued on by mistake failed to contain the entire had been seen on two or three occasions im- agreement without any allegation that the mismediately preceding the killing between his take was mutual, was insufficient to support a home and the deceased's place and that he judgment. offered to bribe a neighbor to testify that he 4. Reformation of instruments 36(3)-Facts was at home on the day that the killing oc showing mutual mistake should be alleged. curred, and the slight similarity between the To entitle a party to reformation of an inindentation on the discharged shell found at strument for mistake, it is necessary to allege the scene of the killing and the indentation facts showing how the mistake was made, made on the same kind of shell fired from whose it was, and what brought it about, so his gun, in connection with his statement on that the mutuality of the mistake may appear. a former occasion that the deceased ought to be killed, tended to establish the common Appeal from Circuit Court, Jefferson Counwealth's case, and authorized its submission ty, Common Pleas Branch, Fourth Division. to the jury. Appellant, with others, was

Action by the Commercial Auto Company charged in the indictment with the murder, against the Brandeis Machinery & Supplý and, although the jury found him guilty un- Company. Judgment for defendant on its der an unwarranted instruction, the finding counterclaim, and plaintiff appeals. Reversunder that instruction is not tantamount to ed for further proceedings. an acquittal under the instruction by which the jury was authorized to convict him, if it Leo J. Sandmann, of Louisville, for appelbelieved that he alone was concerned in the lant. killing. On another trial, if the evidence be Robert Lee Page and Davies, Page & Downthe same as on the last, the instruction on ing, all of Louisville, for appellee. conspiracy will not be given, but the case will be submitted to the jury on the charge SAMPSON, C. J. Appellant Auto Company that appellant alone committed the murder. commenced this action in the Jefferson circuit The judgment is reversed.

court against the appellee supply company to recover $267.81, which it is alleged in the petition was the balance of a deposit of $480, made by it with appellee supply company to

protect the latter against loss on account of COMMERCIAL AUTO CO. v. BRANDEIS

shipment of supplies to the auto company MACHINERY & SUPPLY CO.

under a written contract, of date February

4, 1918. Appellee company filed an answer (Court of Appeals of Kentucky. March 6, and counterclaim, by which it sought to re1923.)

cover of appellant auto company the sum of 1. Appeal and error 544(2)-Sufficiency of

$3,012.00. A jury trial resulted in a verdict pleading to sustain judgment only question for appellee supply company on its counterreviewable in absence of bill of exceptions.

claim for the sum of $3,042; complaining of Where there was no bill of exceptions in this, the auto coinpany appeals. the record on appeal from a judgment for de

(1) As there is no bill of exceptions in the fendant on its counterclaim, the only question record, the only question presented is whethpresented for review is whether the pleadings er the pleadings support the judgment. Milsupport the judgment.

ler's Appellate Practice, section 58; Broad2. Evidence fw 442(6)-Long contract prepar- way & Newport Bridge Co. v. Commonwealth, ed by distributor held not memorandum ex- 173 Ky. 165, 190 S. W. 715; Salisbury v.

Wellman Electrical Co., 173 Ky. 462, 191 S. The rule that a written contract, which was

W. 289. The petition stated a cause of acamere memorandum, not purporting to contain tion in favor of the auto company. The supall the terms of the agreement, can be explained 'ply company filed answer and counterclaim,

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

plainable by parol.

to which a general demurrer was interposed , the contract was short and incomplete; the by plaintiff. The demurrer was sustained by limitation of the rule being couched in these the court with leave to amend. The an- words: swer and counterclaim, as amended, were "It is restricted in its application to cases in likewise held to be insufficient upon demur- / which the writing only purports to interpose rer. Later a part of the counterclaim was part of a contract, or is expressed in such short withdrawn and another filed which was held incomplete terms as to render parol evidence insufficient by the court. Later an amended necessary to explain what is per se unintelligireformed and substituted answer, counter-ble, and the proposed evidence is not inconsistclaim, and cross-petition was filed, to which ent with the terms of the writing.” a general demurrer was overruled. By this last-mentioned pleading the appellee, then from being short and incomplete, goes into

[3, 4] The contract in the instant case, far defendant, undertook to aver that the writ- long detail, appearing on its face to be a ten contract attached to the petition, and

complete contract. The only remedy left apupon which appellants relied for recovery by mutual mistake, omitted a material part of tain the complete agreement, was to seek a

pellee company, if the contract did not conthe contract whereby the auto company was reformation thereof on the grounds of fraud to purchase outright at least 10 traction

or mistake. units at the market price, plus freight, on prepared the contract, it could hardly plead

As appellee company's agent or before September 1st of that year, or with-fraud in its execution. It was therefore rele in the term of the contract; or that the

gated to mistake, committed either by the written contract attached to plaintiff's petition was a mere memorandum which did not parties or by the draftsman of the instru

ment. Before one can have a reformation of purport to contain all the terms of the contract, and which could, under our rule, be a writing, such as this, upon the grounds of explained and clarified by the introduction mistake, he must not only aver but prove by

satisfactory evidence that the mistake was of oral testimony. Elliott on Contracts, s

mutual, not unilateral. There is no aver1632. While one or both of these pleas were intended by the pleader, the averments of the ment in the counterclaim that the mistake said counterclaim are, we think, wholly in- was mutual, nor indeed any averments show

ing how or why the mistake was made, or sufficient for the purpose. [2] From a careful examination of the long auto company, its agents or servants, knew

who made the mistake, or that the appellant printed contract attached to plaintiff's peti

anything of or concerning the mistake. tion, and which forms the basis of this action, we are convinced that it is a standard "It is necessary," says 34 Cyc. p. 976, "to form, complete in every detail, adopted by aver facts showing how the mistake was made, the appellee for use by it among its retail whose mistake it was, and what brought it

about, so that the mutuality may appear. In dealers everywhere, and in no sense is a

all cases the mutual mistake or circumstances memorandum or outline agreement. At any from which the same can be readily inferred rate it was prepared and offered by the ap should be alleged with precision and clearness.” pellee supply company to its retail dealer as Fairbanks-Morse Co. v. Manning & Combs, 164 a complete contract, and was so accepted and Ky. 478, 175 S. W. 1000; Cecil v. Ky. Live executed by appellant auto company. It is Stock Insurance Co., 165 Ky. 211, 176 S. W. not such an obligation or undertaking as was 986; Riddle et al. v. Runnions et al., 162 Ky. under consideration in the case of Asher & 750, 172 S. W. 1041; Scott v. Spurr, 169 Ky. Hensley v. Stacey, 65 S. W. 603, 23 Ky. Law 575, 184 S. W. 866; Kreitz v. Gallenstein, 170

Ky. 16, 185 S. W. 132. Rep. 1586; nor such as is treated of in Cyc. vol. 9, p. 77, of which it is said:

Evidence of a mistake in a writing is not "Where a contract consists of an oral agree competent, unless mutual mistake is averred ment, a part of which only has been reduced to in the pleading. Riddle v. Runniens, supra. writing, it is proper to declare on it as a parol

Measured by these rules, the counterclaim contract,"

was wholly insufficient, and the general deupon which appellee relies. We are also con- murrer interposed to it by appellant company vinced that the writing under consideration should have been sustained by the trial court. does not come within the rule recognized in Failing to do so, the court committed prejuthe case of Castleman-Blakemore v. Pickrell dicial error for which the judgment must be & Craig Co., 163 Ky. 750, 174 S. W. 749, upon reversed. which appellee leans for support, for there Judgment reversed for proceedings not in. it was held that parol evidence could be in- consistent with this opinion. troduced to explain a contract only where Judgment reversed.

(248 S.W.)

tion was sustained, and plaintiff appeals BAILEY CONST. CO. V. CORNETT. Reversed and remanded, with directions. (Court of Appeals of Kentucky. March 6, John D. Carroll, of Frankfort, and J. S. 1923.)

Forester, of Harlan, for appellant. 1. Municipal corporations Cw551_Setting out all of Harlan, for appellee.

G. G. Rawlings and Sampson & Sampson, proceedings in petition to enforce lien for improvements is unnecessary. Under Ky. St. 1922, $ 3574, part of the

SETTLE, J. The appellant, Bailey Conprovisions for public improvements by cities struction Company, a corporation, attemptof the fourth class, which makes an allegation, ed by this action in equity to enforce, as in an action to enforce a lien for such improve against certain lots in Harlan, Ky., the ments, that the improvement had been made property of the appellee, A, B. Cornett, liens and the work accepted pursuant to ordinances aggregating in amount $1,371.42, arising, as of the eity, duly passed in accordance with law | alleged, out of its construction by authority a suficient pleading, it is unnecessary, in a of, and under a contract with, the city counpetition containing the statutory allegation to cil of Harlan of certain of its streets abutted set out the facts relating to the improvement and the passage of the preliminary resolution, by the lots of appellee; the acceptance by ordinances, and the making of the contract, and the council of the work of construction such unnecessary allegation does not render when completed, and its apportionment to the petition demurrable.

and against the lots, respectively, of the

several sums as constituting the appellee's 2. Pleading ww312-Exhibits filed for use as

evidence do not always control allegations of proportionate share of the cost of such street petition.


The appellee filed in the court below a genThough writings like a note or other written contract, which constitute the basis of the eral demurrer to the petition, which that action and for that reason are required by Civ. court sustained. Appellant duly excepted to Code Prac. $ 120, to be filed with the petition this, ruling and declined to further plead; as exhibits, must control if they contradict the thereupon the court entered judgment disallegations of the petition, that is not always missing the petition at its cost, and, from true of writings permitted by section 128 to the judgment indicating these rulings, the be bled as exhibits merely for use as evidence, latter has appealed. which exhibits do not form part of the record,

[1] The General Assembly of this state, in unless used as evidence on the trial.

March, 1916, by chapter 113, Acts 1916, p. 3. Municipal corporations m551---Failure of 675, amended the previous statute and greatly resolution and ordinances filed with petition enlarged the powers of the boards of counas exhibits to show adoption and publication cil of cities of the fourth class, to which does not invalidate petition.

Harlan belongs, respecting their control, conWhere a petition to enforce a lien upon struction, and reconstruction of streets, alabutting property for the improvement of a leys, and other public ways in such cities. street in a fourth class city contained the al- The provisions of this amendatory act tolegation of regularity which was made suffi- gether with such of those of the prior statcient by Ky. St. 1922, § 3574, the fact that the ute as seem to have been retained by it are resolution and ordinances, which plaintiff was erroneously compelled by the court to attach now contained in sections 3562 to 3579, into his petition, failed to show that they had clusive, Kentucky Statutes (Edition 1922). been adopted by a yea and nay vote or that Prior to the passage of the act of March, they had been published, did not render the 1916, the statute respecting cities of the petition insufficient, since those exhibits were fourth class, made no provision for the crenot a part of the petition and proof of the legal ation or enforcement of liens upon or against adoption and publication of the resolution and the abutting real estate of property owners ordinances could be made from other records.

for the reconstruction of streets, but such 4. Municipal corporations m552–After work liens are allowed by the present statute for is accepted, property owner must show de reconstruction as well as original construc

tion of streets. After a municipal improvement has been The specific powers conferred by the stat. completed and accepted by the city, which has ute, supra, on the boards of council of cities apportioned the cost against the abutting prop- of the fourth class, with respect to the conerty owners, an owner objecting to the lien trol of their streets and other public ways, must, by answer set up and by proof, establish are enumerated in section 3562; but the such a defense as woulu defeat the lien.

power of the council to improve them at the

cost of the abutting property owners, proAppeal from Circuit Court, Harlan County. viding for the assessing of such property for Action by the Bailey Construction Com- such cosť and the giving of liens thereon for pany against A. B. Cornett. Judgment for its payment, are more particularly set forth defendant, when plaintiff declined to plead in the succeeding section 3563. By section further

, after general demurrer to the peti-l 3570 it is provided that the council, at least Pun For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fense to lien.

30 days before ordering, through the pas-, the city council of the resolution provided sage of an ordinance, the improvement of for in section 3570, declaring the necessity any street, alley, public way, or sidewalk, for and setting forth the character and exas allowed by section 3563, shall adopt and tent of the street improvement, before it was cause to be published in a newspaper as ordered by an ordinance of the council; it therein directed a resolution designating the being argued that such a resolution was streets, public ways, or sidewalks to be jurisdictional and its passage a condition preimproved, etc. This section also provides cedent to the right of the council to enter infor the filing of petitions by owners of prop- to a contract for the improvement of the erty abutting the streets or other public streets. In overruling this contention, we ways sought to be improved at any time said of that part of section 3574, quoted before the final passage of the ordinance above: ordering the improvement, for the purpose of

"Formerly in such cases the rules of pleaddesignating the material to be used for ing required that a plaintiff should, to make that part of the improvement for the cost of his pleading good and to justify the enforcewhich their abutting property would be li- ment of his lien, set out in detail and at length able, or of protesting against the improve all the acts of the municipal board necessary ment; and in either event the wishes of to give him the statutory lien, and this enthe petitioners or protestants shall prevail actment, which is now in the charters for most, unless overriden by an ordinance passed by if not all, classes of cities in this state, was a two-thirds vote of members of the council. intended to dispense with this cumbersome and Sections 3571-3573 relate further to the such proceedings; and was intended, not only

laborious process of pleading in detail all of powers of the council and street committed to permit a plaintiff in such cases to thereby in deciding what streets or other public ways plead a conclusion of law as to the validity shall be improved, the material to be used of such proceedings, but in addition placed upon in same, plans and specifications for the the defendant the necessity, in defending such work, requiring of estimates, advertising for action, of pleading as a defense any fault or and accepting of bids, letting of contracts illegal proceeding shown by the record of the for work and the like.

council upon which it might rely. Nor is there Section 3574 also contains an enumeration any hardship in this rule. The records of the of further powers that may be exercised by city councils are public records and available the council; among them the authority to as well to the defendant as to the plaintiff, and consider protests, hear evidence, reject or tiff in such action from setting forth in detail

the purpose manifestly was to relieve the plainaccept work of construction, apportion the all the proceedings thereof which go to make cost thereof against abutting property, and out for him a valid lien, and to require a detake such steps, by action or otherwise, as fendant who relies upon anything shown in may be necessary to enforce the liens there the record to defeat the lien to specifically for in the interest of the city. This section point it out, and thereby simplify the pleadings also provides:

and issues.

Even if the preliminary

resolution, setting forth the character and ex"Nor shall any error of the proceedings of tent of the proposed improvement and declarthe board of council exempt any property from ing the necessity therefor, is jurisdictional, the the lien for, or payment of, such taxes after jurisdictional fact depends upon what a public the work has been done and accepted as pro- record shows, and it is within the power of the vided in this section; but the board of coun- General Assembly in a matter of procedure to cil or the courts in which suits are pending require the defendant in such an action to asshall make all corrections, rules and orders to sume the burden of showing from the record do justice to all parties concerned; and in the want of jurisdiction." no event shall the city be liable for any part of the cost of such improvement except as pro

[2] We regard the case, supra, conclusive vided in section 3563. Such liens may be en

of the case at bar. It is true the petition forced, as other liens on real estate, by action brought in the name of the city or the contrac

here sets out the facts relating to the im-' tor entitled thereto, and in any such' action provement and also the passage of the prean allegation in substance that the inprove-liminary resolution, ordinances, and making ment had been made and the work accepted of the contract under which it was effected, pursuant to and by ordinances of the city duly but this was unnecessary under section 3574, passed in accordance with law, shall be a suffi- and much of it mere surplusage. The fact cient pleading of the ordinances and proceed that the records of the council were referred ings under which the work was done and ac

to by the petition was unimportant. The cepted without setting out the same in full. records (resolution and ordinances) were not

filed as exhibits with the petition by the In the very recent case of Ball v. Geo. M. appellant. He was improperly required by Eady Co., 193 Ky. 813, 237 S. W. 670, we had the court below to file them on the appellee's occasion to consider the meaning of section motion, but they neither added to nor de3574 of the statute, supra. In that case ittracted from the material averments that was complained by the appellant that the sufficiently conformed to the requirements petition did not state a cause of action be- of section 3574, supra; hence, we see no mer


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(248 S.W.) bibits contradict the averments of the peti- / tion, therefore, is whether the work was done tion and for that reason should control in according to contract with the city, accepted determining whether the pleading states a by the city, and the amount due by defendcause of action. Writings, like a note or oth- ant apportioned to him by the city authorier written contract, which constitute the ties, as alleged in the petition. As this has basis of the action and for that reason are been done, in order to defeat the appellant's required by the Civil Code, $ 120, to be filed lien, the appellee must by answer set up, and with the petition as exhibits, if found to con- by proof establish, such a defense as would tradict its averments, must control; but effect that result. Johnson v. McKenna, 171 this is noť always true of writings permitted Ky. 389, 188 S. W. 450; City of Maysville v. by section 128 of the Code to be filed as Davis, 166 Ky. 563, 179 S. W. 463; Mulligan exhibits merely for use as evidence. In an v. McGregor, 165 Ky. 231, 176 S. W. 1129; equitable action such an exhibit will not even Ball v. Geo, M. Eady Co., etc., 193 Ky. 813, constitute a part of the record, if it be 237 S. W. 670. shown that it was not used as evidence on It is our conclusion that the petition suffi. the trial. In an ordinary action it will not ciently states a cause of action under the constitute a part of the record, unless it statute, supra, hence the action of the circuit afirmatively be made to appear that it was court in sustaining the demurrer to same used as evidence on the trial.

must be held reversible error. Other ques(3] The fact that the preliminary resolu- tions raised on the record are not passed on. tion determining the necessity for and char Judgment reversed, and cause remanded, acter of the improvements and designating with directions to the lower court to set the streets to be improved, which the court aside the judgment, overrule the demurrer compelled the appellant to file with its peti- to the petition, and permit such further protion as an exhibit, does not upon its face, ceedings in the case as may not be inconshow it was passed by a yea and nay vote sistent with the opinion. or was published, does not necessarily import that it was not so passed or published, or render it contradictory of the averments of the petition; nor does the failure of any of the ordinances exhibited to show that it

UNION LIGHT, HEAT & POWER CO, V. was passed by a yea and nay vote, or pub

O'CONNELL. lished as required by the statute, make it contradictory of the averments of the peti

(Court of Appeals of Kentucky. March 6, tion. The resolution and ordinances were

1923.) made exhibits, not as a basis for the action, but for use as evidence, and the facts as to l. Damages On 143—Petition held not demur. the manner of their passage or whether they rable, as showing injuries due to fright alone. were published as required, may be proved A petition alleging that plaintiff was vioafter the issues are completed and when the lently thrown backwards against a table by an case is tried by the minutes of the city coun- explosion of gas, and was thereby knocked mo. cil meetings at which they were acted upon.

tionless and speechless for many seconds, and

soon afterwards collapsed, and was confined to In Louisville v. Cornell, 14 Ky. Law Rep. her bed under physician's care, and suffered 398 (Super. Court), was held that the great mental and physical pain, that her nervrule that where there is a conflict between ous system was permanently destroyed, and the allegations of a pleading and the exhibit her heart partly affected, and she had lost filed with it, that the latter should control, weight and was unable to do her household duhas no application where the petition is ties, was not demurrable as showing that her framed for the enforcement of an ordinance injury was by fright alone, and that she suffered alleging its passage at two successive meet: no physical injury. ings of the council with two weeks interven- 2. Damages E210(2)-Injury not pleaded ing, where such exhibit is silent as to the

provable to show violence of explosion and time of the passage of the ordinance. This resultant injury, but jury should have been case seems to be in accord with Stone, Audi instructed not to allow damages therefor. tor, r. Wickliffe, 106 Ky. 252, 50 S. W. 44, 20 Where plaintiff suing for injuries from exKy. Law Rep. 1806; Boyd v. Bethell, 9 s. plosion of gas alleged no injury to her back or W. 417, 10 Ky. Law Rep. 470; Green v. Page, hip, evidence thereof was competent as tend80 Ky. 370.

ing to show the violence of the concussion and [4] It will be observed that the exhibits the resultant injury, but the jury should have that were filed only relate to the making of been instructed not to allow damages therefor. the improvement's, none of them to their com 3. Damages on 144-Loss of time is special pletion, the acceptance by the city of the damage, and must be pleaded. work of the apportionment of the cost, all Loss of time from personal injury is of the of which is alleged in the petition and ad- nature of special damage, and must be pleaded mitted by the demurrer.

The crucial ques. ' in order to recover therefor.
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