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(248 S.W.)
appellant in support of his contention that, facts which formed an equally independent and
there was a sufficient consideration for appel- separate cause of action.
lee's promise to pay the indebtedness of her 2. Apprentices Om 8-Contract not complying
husband are cases holding that a detriment with statute is valid in so far as executed.
to the promisee is as good a consideration as

A contract attempting to create the rela-
a benefit to the promisor, among which are: tionship of master and apprentice, but not
Braswell's Adm'r v. Braswell, 109 Ky. 15, 58 complying with the requirements of Ky. St.
S. W. 426, 22 Ky. Law Rep. 521; Wright v. 1922, 88 2591-2610, is valid in so far as it was
Bayless (Ky.) 118 S. W. 918; Van Winkle v. executed.
King, 145 Ky. 691, 141 S. W. 46; Shadwick 3. False imprisonment com 2-Master not liable
V. Smith, 147 Ky. 159, 143 $. W. 1027.

for false imprisonment because apprentice.
[3] This principle of law is of course thor ship contract was invalid,
oughly established, and we have no fault to Even if there were an attempt to apprentice
find with its application in any of these cases an infant to defendant, which was abortive be-
upon the facts there presented, but the facts cause of a failure to conform to the statutory
of this case are not such as to admit of its prerequisites to the creation of that relation-
application, since appellant neither did any each party of the remedies given by the statute

ship, the only consequence would be the loss to thing which he was not bound to do, nor re- for the enforcement of the relationship, and frained from doing anything which he had the master would not be thereby rendered liable a right to do in return 'for the promise of ap- for false imprisonment because of services renpellee to pay her husband's indebtedness to dered under the contract. him. The facts here are simply these: The 4. False imprisonment Ow39–Directed verdict widow, within 13 days after the death of her

justified. husband, voluntarily agreed to pay his in

Evidence that an infant and his mother had debtedness for which she was in no wise contracted that he should render services for bound, and within about 20 days thereafter defendant at a stipulated wage, payable partly repented of her action, and seeks relief there to the boy and partly to the mother, that the from. The appellant still has his unsatisfied wage had been paid and received by the boy claim against her husband's estate, which he and his mother during the entire time the servmay prosecute in any way he deems advis-ices had been rendered, without any evidence able

, since it was not extinguished by the the master had coerced the boy into taking transaction between him and his sister-in- trips referred to, though the boy testified he

was forced to take one trip by some negro not law. Grimes v. Grimes, supra. Hence there shown to be in defendant's employ, held not to was no detriment to him, as confessedly there show false imprisonment by defendant, so that was no benefit to her, to support her promise, a verdict in his favor was properly directed. and she was clearly entitled to have the note and mortgage canceled.

Appeal from Circuit Court, Fayette County. Judgment affirmed.

Action by James Brooks, an infant, by his next friend, Jonas Ellis, against Jobn E. Madden and others. Judgment for defend

ants, and plaintiff appeals. Affirmed. BROOKS V, MADDEN et al.

R. E. L. Murphy, of Lexington, for appel

lant. (Court of Appeals of Kentucky. March 9, Hunt, Northcutt & Bush, of Lexington, for 1923.)

appellee State Racing Commission. 1. Action 504)–Pleading 369(1,6)

J, Keene Daingerfield, of Lexington, for ap Actions against employer and racing associa pellee Madden. tion held improperly joined; motion to require election proper in case of misjoinder;

THOMAS, J. Appellant, James Brooks, an on refusal to elect, court properly struck out one cause of action.

infant, by his next friend, Jonas Ellis, filed A petition by an infant against his former this action in the Fayette circuit court' seekemployer for damages caused by false impris- ing by the original petition the recovery of opment and against a racing commission to en

a judgment against defendant Madden for join it from interfering with the obtaining of the sum of $25,000, and “to prohibit” deemployment by the infant manifests a clear fendant state racing commission from its almisjoinder of causes of action, under Civ. Code leged unlawful interference with plaintifr Prac. $ 83, so that a motion to require plain- in obtaining employment by others than Madtiff to elect between them under the provisions den as an exerciser and rider of race horses. of section 85 was properly sustained, and it was proper for the court to strike from the petition owned a farm in Fayette county whereon he

It was alleged in the petition that Madden the cause of action against the racing commission after plaintiff refused to elect between the bred and trained race horses and ran them causes, and thereafter to reject an amended on the various tracks of the country; that in petition by which the racing commission was 1916 plaintiff began work for him on that again sought to be brought into the case upon farm as an exerciser of horses; and that

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

some time in 1917 he was forced by Maddenly performed by him according to its terms against his will to go with and look after a and obligations. Appropriate pleadings made lot of horses, which were sent to the city of the issues, and upon trial the court gave a perLouisville for training or some other pur- emptory instruction in favor of Madden and pose; that in like manner he was later com- overruled plaintiff's motion for a new trial, pelled by Madden against his will to go to from which judgment he has appealed. New York on a similar mission; and that [1] From the above brief statement of the under compulsion he was forced to serve pleadings, it requires no argument or citaMadden until December 2, 1919, when he tion of cases to show that under the provimanaged to make his escape and returned sions of section 83 of the Civil Code of Practo his mother in Lexington, and that as a tice there was a clear misjoinder of causes of consequence "he has suffered great injury action, and under the provisions of section 85 and damage by reason of being restrained of of the same Code the motion to require plainhis liberty and being compelled to labor and tiff to elect was properly sustained, and unserve the defendant John E. Madden against der the same provisions it was likewise prophis will and consent, and being transported er for the court to strike from the petition out of the state of Kentucky against his con- either of the improperly joined causes upon sent, in the full sum of $25,000." The al- plaintiff's refusal to elect. That being true, leged wrongful acts committed by the state it necessarily follows that the court did not racing commission, as appears from the pe- err in rejecting the offered amended petition tition, were done after plaintiff escaped from by which the state racing commission was his imprisonment by Madden and returned again sought to be brought into the case upto Lexington.

on substantially the same facts as alleged On June 3, 1920, Madden entered motion against it in the original petition, or upon to require plaintiff to elect as against which facts which formed an equally independent defendant he would proceed, upon the ground and separate cause of action, if any at all. that the causes of action attempted to be re There is therefore no ground for complaint lied on against the separate defendants were against the judgment in favor of the state entirely distinct and wholly disconnected. racing commission. That motion was sustained, and plaintiff [2, 3] A vigorous argument is made in brief was given 10 days in which to make his elec- of counsel for plaintiff that Madden, under the tion. He declined to do so, but moved the alleged facts, was guilty of "peonage” as decourt to elect for him, which motion was fined by section 3944 of the Federal Statutes overruled, and he then filed a written motion (U. S. Comp. St. 1918) and punished as predeclining to elect. Whereupon the court scribed by section 10444 of the same statelected for him that he should prosecute his utes. But that argument does not appeal to supposed cause of action against Madden and us because the facts appearing in the rece dismissed it as against the state racing com- ord do not constitute peonage within the mission. At a subsequent term of the court contemplation of that statute. Plaintiff's plaintiff tendered an amended petition in counsel also insists that the facts show which he alleged that by the wrongful acts an effort to create the relationship of "masof the state racing commission he had been ter and apprentice," as provided by chapdeprived of work for others than Madden and ter 84 of the 1922 Edition of Carroll's Kenearning wages of $100 per month which his tucky Statutes, nearly all of the sections skill and ability commanded, and that he whereof are copied in brief, and that they was compelled to work at other employment were not complied with, and because of at about $30 per month, and that he had there- which, he reasons, that a great wrong was by been damaged in the sum of $889.20, for perpetrated on his client, for which he is enwhich he sought judgment against both de-titled to recover. This court, however, in fendants, and that the state racing commis- the case of Cain v. Garner, 169 Ky, 633, 185 mission be "enjoined," instead of "prohibits. W. 122, L. R. A. 19169, 682, Ann. Cas. ed," as prayed in the original petition, from 1918B, 824, held that such contracts were valfurther interference with his employment. id in so far as they were executed, and, inThe court declined to allow that amendment ferentially, it was held that they did not to be filed. Madden, in his answer, denied come within the purview or were included in the alleged grounds of complaint against him the statutory provisions for apprenticing and affirmatively pleaded that he entered in- minors, and for that reason the reliance of to a written contract with plaintiff and his counsel upon the statute can be given no efmother (the father being dead) by which he fect in this case. If, however, there had employed the services of plaintiff for one year been an attempt to apprentice plaintiff to the as a hostler and an exerciser of horses and defendant Madden, and it was abortive beto train him as a race rider with the privilege cause of a failure to conform to some statuof extending that contract for another year tory prerequisite in order to create the reat a stipulated monthly wage, a part of which lationship, it would then remain to be showa was to be paid to plaintiff and the remainder that the master would be liable for false im

(248 S.W.) suant thereto. We are thoroughly convinced by the buyer, and it is so planted, the seller is that the only consequence of such an abortive answerable for the difference between the value effort, provided the relationship was wrong of the product of the seed planted and the value fully entered into, would be the loss to each of the product that would have resulted, if it party of the remedies given by the statute

had corresponded to the warranty. for the enforcement of that relationship, and 2. Sales Cww441(4)-Evidence held to sustain not a right to recover damages because of the recovery for breach of warranty as to variety failure to comply with the statute, which

of seed. therefore it is clearly apparent has no bear

Where plaintiff testified, and defendant ading upon the case whatever.

mitted, that defendant warranted the seed sold [4] Plaintiff and his mother, who testified sowed the seed in proper soil, but received

to be German millet seed, and that plaintiff as a witness in his behalf, claimed that the only an inferior crop of wild grass bay, which written contract entered into in the early was worth less than he paid for the seed, the part of 1917, after he had worked some time evidence sustained the judgment allowing plainunder an oral one, was not signed by the tiff the value of the crop of millet he might latter, although it is conclusively proven reasonably have expected, if the seed had been that plaintiff himself signed it. We are thor- as warranted. oughly convinced, however, that if the moth-3. Sales Om 441(2)-Evidence held to show er did not in fact sign her name to it she con agent of wholesaler warranted variety of seed. sented thereto. However, we do not consid Testimony by a retailer and by the salesman er that fact either material or anywise im of the wholesaler that the latter sold German portant, since it is admitted by both of them millet seed to the retailer, to be sold to his custhat throughout the term of service the tomers for sowing, with assurance that the agreed wages were monthly paid, he receiv- seed was true big-headed German millet, con

clusively establishes that the wholesaler, ing his proportion and his mother her pro- through its agent, warranted the seed sold to portion. It is true that he testified that the retailer. some colored person at the stables on defendant's farm drew a revolver on him and 4. Principal and agent com 104 (2)—Salesman

has apparent authority to warrant variety of forced him against his consent to make the

seed. first trip from Lexington to Louisville; but

A salesman for a wholesale seed company, there is no pretense that such person repre- who had during several years sold seed to a resented Madden or had any authority to act tailer, was within the apparent scope of his for him or was even working for him. “It is authority when he warranted certain seeds sold not pretended that he was in any manner to be of a particular variety, although notices forced by any one to remain in Louisville on his principal's letterheads and on tags atwhere he continued to draw his monthly tached to its bags of seed contained notice that wages, nor was he in any manner forced to the wholesaler made no warranties. leave Louisville and go to New York with 5. Sales Ew264_Sale of seed by name raises the horses of defendant. It is true he and implied warranty. his mother testified that the latter was not A sale of seed by name raises an implied notified of the contemplated trip to Louis- warranty that it is true to name, and the fact ville

, but, as stated, both he and she con- that the buyer inspected it before buying is tinued to draw the wages from that time till immaterial, if its character could not be ascer

tained by a reasonable inspection. he quit the employment. The alleged cause of action, therefore, if we should concede the 6. Sales Cm 442(13) - Wholesaler, warranting sufficiency of the petition as against Madden,

variety of seed, is liable for buyer's liability is about as much unproven as any case which

on similar warranty. has come under our observation, and, there

When a wholesale seed dealer sold seeds to being no violation of any statute affording a retailer with warranty they were of a particuthe cause of action, the court properly di- tailer intended to sell them again to persons

lar variety, and with knowledge that the rerected the verdict in favor of defendant. who would sow them, and thereafter the reWherefore the judgment is affirmed. tailer was held liable to his customer for breach

of warranty as to the variety of the seed, the wholesaler thereby became liable to the retailer for the amount recovered from the latter.

HOBDY & READ V. SIDDENS et al. * Appeal from Circuit Court, Allen County. (Court of Appeals of Kentucky. March 9, Action by Dee Siddens against Hobdy & 1923.)

Read to recover damages for breach of war1. Sales 442 (11)-Breach of warranty of ranty of seed, in which the defendants by seed variety entities buyer to difference of cross-petition made the National Seed Comvalue between crop produced and crop which pany a party defendant, and sought recovery should have resulted.

against it for the amount recovered by plainWhere seed is warranted as to kind, and tiff from the original defendants. Judgment the seller knows that the seed is to be planted for the plaintiff against the original defendOm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied May 8, 1923.

ants, and cross-petition dismissed, and they had warranted the said seed to be genuine original defendants appeal. Judgment for German millet. By their cross-petition they plaintiff affirmed, and judgment dismissing made the National Seed Company, of Louisthe cross-petition reversed, with directions ville, a party defendant, averring that they to enter a judgment for the original defend had purchased the seed from the National ants on their cross-petition.

Seed Company as German millet, and that Morris & Jones, of Frankfort, and W. D. the said seed company had warranted the Gilliam and Gilliam & Gilliam, all of Scotts- same to be the best quality German millet ville, for appellants.

seed. The answer and cross-petition conDavies, Page & Downing, of Louisville, and cluded with a prayer that the plaintiff's peti. Oliver & Dixon, of Scottsville, for appellees. tion be dismissed; that defendant National F. R. Goad, of Scottsville, for Siddens.

Seed Company be summoned as a defendant

on cross-petition, and be made a defendant, SAMPSON, C. J. This is an appeal from a and, in the event the court should hold Hobdy judgment in a suit commenced in the Allen & Read liable in damages to appellee Siddens, circuit court for the purpose of recovering then they prayed that they have recovery damages for breach of warranty as to kind over against the National Seed Company for and quality of millet seed. Appellee Siddens,

like amount. Issue being joined and evi. a farmer owning a rich river bottom farm dence taken, the chancellor, to whom the in Allen county, purchased of appellants, law and facts were submitted, the cause havHobdy & Read, retail seed merchants, at ing been, on motion of appellants and NaScottsville, 40 bushels of German millet seed tional Seed Company, transferred to equity, at the price of $3.75 per bushel, to be de- entered a judgment in favor of appellee Sidlivered April 1, 1920. As the merchants did dens against Hobdy & Read for $1,000,, and not have the seed on hand at the time, they dismissed the cross-petition of appellants agreed to procure same for appellee Siddens. Hobdy & Read against the National Seed and did so, and later appellee sent his wagon

Company. This appeal is prosecuted by to the store and obtained the seed, and car- Hobdy & Read against both Siddens and the ried the same to his farm, where it was sown

National Seed Company. There is no crosson a 50-acre tract of fine, rich bottom land,

appeal. after the same had been put in proper condi

[1] The principle upon which this action tion to receive the seed. When the seed rests has been stated in several opinions in germinated and grew, it was discovered, ac- substance as follows: · Where seed is warcording to the contention of appellee Siddens, ranted as to kind, and the vendor knows that that the harvest was going to be something the seed is to be planted by the vendee, and very different from millet. According to his it is so planted, the vendor is answerable for testimony, it was some kind of unknown the difference between the value of the prodwild grass, which produced a hay of very uct of the seed planted and the value of the little value. It is further alleged:

product that would have resulted, had the “That had said seed been the kind and char- Bushnell, 63 Neb. 568, 88 N. W. 693, 93 Am.

seed corresponded to the warranty. Dunn v. acter bought, and the kind and character warranted, represented, and sold by the defend. St. Rep. 474; White v. Miller, 71 N. Y. 118, 27 ants to him, that on said 50 acres he would Am. Rep. 13; L R. A. 1916C, 1001; Crutcher have, at a low estimate, produced one ton of & Co. v. Elliott, 13 Ky. Law Rep. 592; Gardfirst-class millet per acre, or a total of 50 tons ner v. Winter & Co., 117 Ky. 382, 78 S. W. upon said 50 acres; that said hay would have 143, 25 Ky. Law Rep. 1472, 63 L. R. A. 647. reasonably been worth on the open market, and See, also, Buckbee v. Hohenadel Jr. Co., 224 was worth and would have sold for, $1 per Fed. 14, 139 C. C. A. 478, L. R. A. 1916C, 1001, hundredweight or more, or $1,000 is a reasona- Ann. Cas. 1918B, 88. ble and low value of said crop in said year, if said deed had been as warranted and repre

[2] The petition sufficiently stated a cause sented by the defendants. Plaintiff says that of action in favor of appellee Siddens against

a result of sowing said seed there was appellants, Hobdy & Read, for breach of only produced some kind or character of wild warranty, and the cross-petition against the grass or other filth, which has no value for National Seed Company was equally suffifeeding purposes, and could only be used for cient. Appellee Siddens testified unequivocalbedding stalls, filling ditches, or a similar pur- ly that, when he purchased the seeds from pose, and that the total amount of this charac- appellant Read, with whom he dealt, Read on ter of the growth produced would not and did behalf of his firm warranted the said seed not exceed 10 tons, and at a high estimate was not worth exceeding 75 cents per 100, or a sum

to be first-class German millet seed, suitable total of $150."

for sowing. He is corroborated in this by

Read, of the firm of Hobdy & Read, who Appellants, Hobdy & Read, filed answer states in substance the same. It is further and cross-petition. By the answer they con- shown by the evidence introduced by appeltroverted part of the affirmative averments lee Siddens that the crop produced on his of the petition, and admitted in substance bottoms was not that of German millet and that they had sold the seed to appellee Sid was of very little value; that his land was dens at the price stated in the petition, and rich and well suited to millet, and that before

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(248 S.W.) be sowed the seed in question he prepared. Ever since I have been connected with the Na-. the land in the most approved fashion to re- tional Seed Company, some 5 or 6 years. ceive the seed; that the season was good for "Q. With which member of the firm of Hobdy millet, and that the said land should have & Read did the National Seed Company deal in produced, had the seed been German millet, making this sale? A. Mr. Read, at least a ton of hay per acre which said bay in Scottsville ? A. Yes, sir.

"Q. And that took place at their warehouse would have been reasonably worth a total of

"Q. I will ask you if Mr. Read did not state something more than $1,000; that he paid to you they had been handling the Tennessee $150 for the seed; that the crop he obtained millet before this time, and if he did not raise from the said 50 acres was worth only about the question as to whether the seed which the $150, and that he had been damaged by loss National Seed Company proposed to sell was of crops at least $1,000. These facts were the true German big-headed millet? A. Yes, well established.

sir; he did. He did not state he had been Appellee National Seed Company defended handling the Tennessee millet, but he asked me chiefly upon the ground that it made no war

if it was the big-headed German millet?

"Q. Did they further state the seed which ranty of the seed which it sold to Hobdy & he bad been handling was the Tennessee millet Read. In support of this contention it proved and had given entire satisfaction, and he was that the custom among millet seed dealers particularly interested in procuring the true was to sell such seed without warranty. It German-big-headed German-millet that would further proved that upon its letter heads satisfy his local trade, and didn't you assure and stationery, including bills and order him the seed which you were selling was that blanks, there was printed in plain type in character of seed? A. I assured him it was the substance the following:

big-headed German millet.

"Q. Did you have authority from the Na"Ve give per cent, of purity or germination tional Seed Company to say to Mr. Read that for the benefit of our customers. These tests the seed he purchased was the true German are carefully prepared, but not guaranteed. big-headed millet? A. Yes, sir."

All seeds are selected with great care, but we give no warranty, either express or im

[3, 4] Mr. Read, who made the purchase plied. We do not guarantee any of them, nor for appellants, testified that the agent, Mr. will we be responsible for the crop. If not ac- Alvis, warranted the seed to be big-headed cepted on these conditions, goods must be returned at once.

* The above purity and German millet, suitable for sowing, and exgermination test is secured from reliable sourc- hibited to him a sample which the agent said es and is for information only and without he had taken from the stock in its warehouse guaranty. We give no warranty, express or in Louisville. It therefore appears to be implied, as to description, quality, productive conclusively proven that the National Seed Dess, or any other matter of any seeds we send Company did in fact, through its a gent, warout, and we will not be in any way responsible ! rant the seed sold to appellants, Hobdy &

Read, to be big-headed German millet, suitIt further says that upon each of the bags able for sowing. 'In the absence of an actual containing the seeds sold and delivered to warranty such as made by Alvis for and on appellants, Hobdy & Read, there was a ship- behalf of his employer, appellee National ping card or ticket containing printed matter Seed Company, the nonwarranty tags, cards, in substance the same as the foregoing non- letter heads, and bills, together with proof warranty provisions.

The National Seed of the general custom among seed dealers Company charges that appellants Hobdy & not to warrant seeds, would perhaps be suffiRead purchased the seed with the under-cient to defeat a recovery in a case like this. standing that there was no warranty; that But Alvis had authority to act for and on appellants had actual knowledge that appel- behalf of the appellee seed company. He lee National Seed Company did not warrant was offering to sell and was selling seed for its seeds. It admits, however, that it sentit.

He had been its representative for seyits salesman to Scottsville, in Allen county, eral years, and had called upon appellants and sold seeds to appellants, Hobdy & Read, at different times and sold them seed. and that its said agent, while in Scottsville, whether he had actual authority from his sold to appellees at least 100 bags of seed, employer to warrant the seed is not so mawhich were later delivered to appellants, and terial, for he was acting within the apparent for which appellants paid appellee National scope of his authority when he said to Mr. Seed Company the full price. Its agent, Read, of the firm of Hobdy & Read, that the Mr. W. F. Alvis, who took the said order, seed were first-class big-headed German miltestified in substance that he sold the seeds let seed, and assured him that the said seeds to appellants, Hobdy & Read, for German were first-class in every respect. Although millet, to be sold to their customers for sow- appellee National Seed Company at the time ing. He was asked:

had a general rule not to warrant the quality "Q. The 100 bags of true German-big-head of its seed, it had the power to make such German–millet were shipped to them after warranties in specific sales, as the evidence their purchase? A. Sure.

shows it did in this case, and its agent, Alvis, How many years have you been knowing in offering the seed for sale and in selling of Hobdy & Read, or selling them seed? A. them, was acting in the apparent scope of his

for the crop."

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