(248 S.W.) chattels must restore or offer to restore the property within a reasonable time after the discovery of the defects. 2. Sales 119-Buyer cannot rescind purchase of tractor in absence of warranty. The buyer of a tractor cannot cancel his contract because of defects in the machine, in the absence of a warranty of its sufficiency. 3. Sales126(3)-Delay at seller's request to give chance to make machine perform does not prevent rescission. ant was interested, at least in some way, in one-third of that stock, else he would not be in condition to have its proceeds applied to the note sued on, or, if he was not personally interested in it, that there existed some arrangement by which he was entitled to that much credit. If he was the owner of that proportion of the stock, then it would further appear that he was in some way obligated on the large note as principal, and that those various transactions were intimately connected so as to form one transaction, and we are convinced that under the above exception to the general rule, disal-cording to warranty, his delay in returning or lowing contemporaneous parol testimony to vary the terms of a writing complete and absolute on its face, the defense here relied on was available to the defendant, and the court did not err in overruling the demurrer to the answer. The evidence is admitted, not to contradict the writing, but to show what was the contract. Where the buyer of a tractor gave prompt notice to the seller that it failed to perform ac attempting to return the tractor to the seller, on the seller's request that he be given an opportunity to repair and adjust the machine to make it perform according to the warranty, does not estop the buyer from thereafter returning the machine and demanding a rescission of the contract. Appeal from Circuit Court, Larue County. Action by L. R. Howell against William Leming. Judgment for plaintiff, and defendant appeals. Affirmed. Sam Y. Jones, of Hodgenville, for appellant. Williams & Handley, of Hodgenville, for appellee. SAMPSON, C. J. Defendant, by his testimony, supported by that of other witnesses who testified for him, sustained his defense, and there are circumstances appearing in the record, such as the issuing of the stock certificates to the parties, the entries appearing on the books of the insurance company, and others, which likewise support the defense relied on. The principal witness contradicting those facts was the plaintiff himself, and his testimony Appellant, Leming, a is very confusing and greatly unsatisfactory. dealer in farming implements, sold appellee, One fact strongly supporting defendant's the- Howell, a farmer, a farm tractor for $700. ory is that the note. sued on is exactly oneThe machine proved unsatisfactory, and third of the original amount of the larger Howell tendered it back and sued Leming note, and there was issued to him certificates for the $700 paid him for the tractor. Apof insurance company stock for 361 and a pellant, Leming, defended on two grounds: fraction shares, which is one-third of (a) He did not warrant the tractor, and (b) 1,0845/12 shares, the amount of the original if there were a warranty as claimed by apcollateral stock, less 1,100 shares, which lat-pellee, Howell, he was too late in demanding ter amount, according to plaintiff's theory, a rescission of the contract. was to be sold toward liquidating the larger note. Before closing the opinion, it might be stated that the collateral stock rapidly declined, and the proceeds of that which was sold was wholly inadequate to pay the larger note. Appellee, Howell, testified and introduced evidence to prove that appellant, Leming, warranted the tractor in all respects, as claimed, while appellant, Leming, denied he warranted the tractor, and called witnesses to prove he did not do so. The evidence of appellee, Howell, further shows that the machine was defective, unsatisfactory, and disabled from the day of delivery, and that he repeatedly offered to return it to appel Having reached the conclusions above expressed, it is unnecessary to consider the other grounds urged as sustaining the defense, and, finding no error prejudicial to the substantial rights of plaintiff, the, judg-lant and demanded a rescission of the conment is accordingly affirmed. LEMING v. HOWELL. (Court of Appeals of Kentucky. March 2, 1923.) 1. Sales124-Buyer must restore property within reasonable time to rescind for breach of warranty. In order to avail himself of his right to rescind for breach of warranty, the buyer of tract; that appellant begged him each time to keep the tractor a little longer and give appellant a chance to make it work, and promised to put the machine in good condition, but failed to do so. All this is likewise denied by appellant, Leming, and some of his witnesses. [1] It is a well-established and frequently confirmed rule of law applied by this court that the purchaser of personal property, under a warranty which has failed, must, in order to avail himself of the right to a rescission of the contract, restore or offer to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of any business, or the management of the estates or the collection of rents, etc., and to act as agent or trustee for persons and corporations in any and all other matters which can be carried on by an agent or trustee, is empowered to act as an insurance agent. 3. Corporations 372-General words following specific enumeration of powers are restricted to powers of same class. If a charter, in defining the powers of a [2, 3] If there had been no warranty of the sufficiency of the tractor, the law would not allow, in a case of this character, a cancellation of the contract. The rule is oth-corporation, enumerated certain things which erwise where the purchaser tenders the machine back within the time specified or within a reasonable time, and the seller asks the purchaser to retain it longer so that the seller may have an opportunity to make it comply with the contract, and the machine is so retained. it may do by words of particular and specific meaning, and such enumeration is followed by general words, the general words are not to be taken in their widest sense, but are restricted to things of the same general kind as those enumerated, unless a contrary intent appears. 4. Corporations 380-Requirement agent shall be of good character does not prevent corporation from acting as agent. if it acts through persons who themselves pos- Where the seller of machines delivers a defective machine, and thereafter, through his agents and servants, attempts to make The requirement of the statute that an apthe machine perform the functions for which plicant for license as insurance agent shall be it was intended, and, while thus engaged in a person of good moral character does not preattempting to accomplish this purpose, re-vent a corporation from acting as such agent quests the purchaser to keep the machine and give the seller a chance to make it perform, the retention of possession of the machine under such conditions does not, no matter how long continued, operate to estop the purchaser from returning the machine and demanding a rescission of the contract, including a return of his money paid for the machine, in the absence of intervening equities. Debaun v. Weaver, 190 Ky. 685, 228 S. W. 27; Bernard v. Napier, 167 Ky. 824, 181 S. W. 624; Hauss v. Surran. 168 Ky. 686, 182 S. W. 927, L. R. A. 1916D, 997; J. I. Case Threshing Machine Co. v. Walters Bros., 197 Ky. 348, 246 S. W. 831; 35 Cyc. 542-548. For the reasons indicated the judgment is affirmed. Judgment affirmed. ROGERS v. RAMEY, Ins. Com'r. (Court of Appeals of Kentucky. March 6, 1923.) I. Insurance 184-It is not rebating for officer of corporation organized for profit to write insurance and give commissions to corporation. It is not rebating, contrary to the statute, for an officer of a brokerage corporation, which was organized for profit and authorized to act as agent, to write insurance in his own name as agent, but on behalf of the corporation, and to turn over to the corporation his commissions on the insurance so written. 2. Corporations 380-Charter held to authorize brokerage corporation to act as insurance agent. An officer of a brokerage corporation can also act as agent for an insurance company, which insures property under the charge of the brokerage corporation, where he does so with the knowledge of all the parties concerned, and it will not be presumed that such officer will do otherwise. 6. Insurance 184-It is not rebating for agent to receive commission for insuring own property. It is not rebating, contrary to the statute, for an insurance agent to insure his own property and receive a commission for doing so, since he may pay the premium for such insurance, either by money or services, and the rule is the same whether the agent is a corporation or a natural person. 7. Insurance 184-Receipt by stockholders of portion of insurance commissions as dividends does not show rebating. The fact that a portion of the commissions paid to a brokerage corporation for writing insurance on the property under its control would be repaid to the stockholders in the form of dividends does not show that it would be rebating to permit the corporation to act as an insurance agent, since the stockholders would receive such portion, not as a special privilege, but as part of the profits to which they were entitled on the investment of their money. Appeal from Circuit Court, Franklin County. Mandamus by E. R. Rogers against James F. Ramey, Insurance Commissioner. MandaA corporation empowered by its charter mus denied, and plaintiff appeals. Reversed to act as agent or attorney for the transaction and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) B. G. Williams and W. C. Marshall, both of Frankfort, for appellant. Chas. I. Dawson, Atty. Gen., and O'Rear, Fowler & Wallace, of Frankfort, for appellee. CLAY, J. This is an appeal from a judgment denying appellant a mandamus requiring James F. Ramey, insurance commissioner, to grant him a license to act as agent for the Employers' Fire Insurance Company of Boston, Mass. It appears that appellant is employed by the Capital Guaranty & Brokerage Company as its secretary, and receives a salary for his services. The Capital Guaranty & Brokerage Company is a corporation with headquarters in the city of Frankfort, and among the powers conferred by its charter are the following: corporation of the Capital Guaranty & Brokerage Company is attached hereto as a part of this statement." The license was refused, and the mandamus denied, on the ground that appellant's plan of doing business was violative of the statute prohibiting rebates. [1] The case of L, W. Botts v. J. F. Ramey, Insurance Commissioner, which was before Chief Justice Carroll on motion for an injunction restraining Ramey, as insurance commissioner, from revoking Botts' license to act as an insurance agent, involved a similar question. Botts, who was an officer of the Fidelity & Columbia Trust Company, wrote insurance for the general public in his own name, but accounted to the trust company for all the commissions which he received. In an opinion concurred in by three other members of the court the Chief Justice held that the Fidelity & Columbia Trust Company was authorized by its charter to act as an insurance agent, and its receipt of commissions earned by its officer was not rebating within the meaning of the statute. In the more recent case of Lyman v. Ramey, 195 Ky. 223, 242 S. W. 21, it appeared that Lyman was the secretary of the Kentucky Association of Highway Contractors, an organization that had no capital stock, was composed entirely of highway contractors, and whose purposes were to promote the business interests of its members, but not to make profits for itself. Lyman was the only paid officer employed, and his salary and expenses were paid by dues or assessments against members of the association. Lyman proposed to write bonds and indemnity insurance for members of the as "The nature of the business of said corporation and the objects and purposes to be transacted, promoted, and carried on by it shall be to buy and sell, discount and rediscount, notes, drafts, bills of exchange, stocks, bonds, securities, and choses in action of all kinds, both as principal and as agent; also to buy and sell liens on real and personal property and to loan money and accept as surety therefor liens on and pledges of real and personal property; to act as agent or attorney for the transaction of any business or the management of estates or the collection of rents, accounts, interest, dividends, notes, and bonds, securities for money, and demands of every kind and character, and to also act as agent or trustee for persons and corporations in any and all other matters which can be solicited, negotiated, operated, and carried on by an agent or trustee; also to act as agent or broker in securing loans, effecting sales of real and personal property; to organize, finance, develop, and improve busi-sociation and possibly others, and the comness firms, partnerships, and corporations." Appellant's amended application for the license contains the following: I missions earned by him were to be turned over to the association and used to pay his salary and expenses, thus reducing the dues or assessments against the members for whom he wrote the insurance. In holding that this was a method of rebating, the court approved the ruling in the Botts Case, but distinguished the two cases in the following language: "I am employed by the Capital Guaranty & Brokerage Company, a Kentucky corporation, with its chief office and place of business at Frankfort, Ky. I work on a salary basis, and my employer, under the conditions of the employment, is entitled to my entire time. "Nor is, as counsel asserts, this conclusion propose, therefore, to write insurance on all the property of my employer, its customers, inconsistent with an order of a member of this officers, and stockholders and for the public court in which three other members concurred, generally. I propose to turn over to my em- granting an injunction in the case of L. W. ployer all of the commissions, premiums, or Botts v. J. F. Ramey, Insurance Commissionparts of premiums and profits which I may er, pending in the Jefferson circuit court. In case the insurance commissioner was earn or which may accrue to such agency, be- that cause, as we mutually construe it, my employer threatening to cancel a license granted to is entitled to these commissions under my conBotts, an officer and employé of the Fidelity & tract of employment. While in fact I am ap- Columbia Trust Company, who was writing inplying for an agent's license, the license to all surance for members of the general public in intents and purposes is being issued to the Cap- his own name, but accounting to the trust comital Guaranty & Brokerage Company, my em- pany by whom he was employed for all comThat holding was based upon the ployer. I desire to further state, however, that missions. the Capital Guaranty & Brokerage Company is ground that the trust company, organized for fully authorized and empowered under its char-profit and empowered by its charter to act as ter to act as agent or attorney in any and all insurance agent, was really the agent of the matters, and is therefore qualified to act as insurance companies, and writing the insurance insurance agent. A copy of the articles of in- through its agent, Botts, whereas appellant's employer is not by its charter authorized to act as such agent or permitted to earn profits. "Hence appellant, when writing insurance as he proposes, must act for himself, and not for his employer, and, when he indirectly returns to those for whom he writes insurance the commissions earned by him for so doing, he is rebating, as that word is used and defined in 762a19, supra." [2, 3] But it is insisted that the Capital Guaranty & Brokerage Company is not authorized by its charter to act as the agent of a fire insurance company. While it is the rule that, if a charter, in defining the powers of a corporation, enumerates certain things which it may do by words of particular and specific meaning, and such enumeration is followed by general words, the general words are not to be taken in their widest sense, but are restricted to things of the same general kind as those enumerated, unless a contrary intent appears. State v. Lincoln Trust Co., 144 Mo. 562, 46 S. W. 593. No such case is here presented. After enumerating certain other powers, the language of the charter is as follows: had received the necessary certificates; and we see no reason why a corporation authorized to act as insurance agent may not do so through a person who possesses the moral character and other qualifications necessary to entitle him to a license. [5] But it is said that appellant, who is the agent of the insurance company and also the agent of the Capital Guaranty & Brokerage Company, cannot serve two masters whose interests are conflicting. Ordinarily, of course, an agent is not authorized to write a policy on his own property or property of a corporation of which he is an officer and stockholder (Zimmerman v. Dwelling House Ins. Co., 110 Mich. 399, 68 N. W. 215, 33 L. R. A. 698; Arispe Mercantile Co. v. Capital Ins. Co., 133 Iowa, 272, 110 N. W. 593, 9 L. R. A. [N. S.] 1084, 12 Ann. Cas. 93; 14 R. C. L. 873), but the rule does not apply where, as is generally the case, the agent acts by the authority, or with the knowledge, of all the parties concerned, and we shall not indulge the presumption that appellant will do otherwise. [6, 7] It remains to determine whether the "To act as agent or attorney for the trans- proposed plan amounts to rebating. In supaction of any business, or the management of port of the affirmative, it is argued that, as estates or the collection of rents, accounts, appellant will insure the property of the Capinterest, dividends, notes, and bonds, securities ital Guaranty & Brokerage Company, and for money, and demands of every kind and that company will receive all the commischaracter, and to also act as agent or trustee sions earned by appellant, and the stockfor persons and corporations in any and all holders of the company whose property is other matters which can be solicited, negotiat-insured will get back a portion of their preed, operated, and carried on by an agent or trustee." It will thus be seen that the corporation is given specific authority not only to act as agent for the transaction of any business, but to act as agent in any and all other matters which can be carried on by an agent. Manifestly it would do violence to the language employed to say that it was not broad enough to include the power to act as an insurance agent. miums by way of dividends, the necessary result will be that both the company and the stockholders will obtain their insurance at less rates than others are charged. The fact that an agent who insures his own property with his principal's consent receives a commission on the premium paid is not rebating, for he may pay the premium either in money or services, and the rule is the same whether the agent be a corporation or a natural person. Nor does the stockholder whose prop[4] Another contention is that a corpora- erty is insured receive a rebate within the tion may not act as an insurance agent. The meaning of the statute. It is true that the basis of this contention is that the provision corporation receives a portion of the preof the statute requiring the applicant for a mium as its commission, and in this way the license to be a person of good moral charac- stockholder may get back a portion of his ter. considered in connection with other pro- premium in the form of a dividend, but in visions of the statute, shows that the Legis- that event he will receive such portion of the lature intended that only natural persons premium, not as a gratuity or special privishould be licensed to act as insurance agents. lege, but as a part of the profits which he In the case of William Messer Co. v. Roth-is entitled to receive in return for the monstein, 129 App. Div. 215, 113 N. Y. Supp. 772, the fact that the statute required every plumber to have a certificate of competency was held not to preclude a corporation so authorized by its charter from carrying on the plumbing business through agents who ey which he has invested in the capital stock. On the whole, we conclude that appellant is entitled to a license, and that the court erred in refusing the relief asked. Judgment reversed and cause remanded for proceedings consistent with this opinion. Ark.) MCFARLANE v. MORGAN MCFARLANE v. MORGAN. (No. 145.) (Supreme Court of Arkansas. Feb. 5, 1923. 1. Taxation 679(5), 855-Land commission- Under Overdue Tax Act (Acts 1881, p. 67, 7), requiring the court to inquire into sufficiency of tax sales or forfeitures to vest state with title, and, if found insufficient, to proceed under section 8 to order assessor to assess the lands for the years taxes were unpaid. such proceeding vacates a prior sale and precludes the state from acquiring title thereunder. 4. Taxation 684(4)—Redemption presumed where land is not listed in report of sale confirmed by court. Where land ordered sold for taxes does not appear upon commissioner's sale report, confirmed by the court, the presumption is that it was redeemed from the decree. 5. Adverse possession 93-Payment of taxes for 7 years under color of title makes title. Under Crawford & Moses' Dig. § 6943, payment of taxes for 7 consecutive years under color of title makes title, unless during that time the land was owned by the state. Appeal from Union Chancery Court; J. Y. Stevens, Chancellor. 18 south, range 16 west, as a cloud on his [1] Appellee purports to deraign his title. from the United States by an unbroken chain of conveyances; but appellant says that under the testimony there are some broken links in this chain. We do not stop to inquire whether there are missing links in this chain of title or not, for the reasons hereafter stated; and the point to be de The land cided is the effect of this deed. commissioner's deed recites that the state had title to the land conveyed under a forfeiture and sale for the taxes of 1868; but it would, of course, convey any other title the state may have had. Walker v. Taylor, 43 Ark. 543. The answer of appellant alleged the fact to be that the land had been sold to the state under an overdue tax decree; that this sale had been duly confirmed, and the state acquired the title thereby, and conveyed it to appellant by the deed of the We have land commissioner stated above. before us the record in the overdue tax suit of Union county, a proceeding had under Act 39 of the Acts of 1881 (Acts 1881, p. 63). This was a general act entitled "An act to enforce the payment of overdue taxes," and under it proceedings were had in Union county substantially similar to proceedings had under said act in all the other counties of the state. Many cases have reached this court which grew out of these proceedings, and we shall attempt no review of this legislation at this time. The records of Union county, at least the court records, are intact, in so far as this overdue tax proceeding is concerned, and this litigation arises out of a difference of opinion as to what the records show in regard to this statutory proceeding. The first order of the court was that of the clerk in vacation, made pursuant to section 2 of the Overdue Tax Act, warning all persons to appear within 40 days and show cause why a lien should not be declared on the lands there described for unpaid taxes, The land in and the same ordered sold. litigation is there described, and this order Suit by D. E. Morgan against Bruce Mc- was made July 13, 1882. Farlane for cancellation of deed. for plaintiff, and defendant appeals. firmed. Decree Af The next order of the court is one in which a decree pro confesso is taken, purThe court suant to section 5 of the act. Jesse B. Moore, of El Dorado, and H. B. finds that the sales to the state for the nonpayment of the taxes for the year set out Martin, of Tulsa, Okl., for appellant. Marsh & Marlin, of El Dorado, for ap in the complaint are void, and the assessor of the county was directed to proceed forthpellee. with to reassess the land. This order was The next order made November 1, 1882. recites the filing of the assessment by the county assessor pursuant to the directions of the court. SMITH, J. Appellee brought this suit to effect the cancellation of a deed executed by the commissioner of state lands on April 21, 1920, conveying to appellant the title of The next is an order before the clerk in the state to the northeast quarter of the northwest quarter of section 11, township vacation, made on October 21, 1882. This For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-17 |