(248 S.W.) appellant in support of his contention that there was a sufficient consideration for appellee's promise to pay the indebtedness of her husband are cases holding that a detriment to the promisee is as good a consideration as a benefit to the promisor, among which are: Braswell's Adm'r v. Braswell, 109 Ky. 15, 58 S. W. 426, 22 Ky. Law Rep. 521; Wright v. Bayless (Ky.) 118 S. W. 918; Van Winkle v. King, 145 Ky. 691, 141 S. W. 46; Shadwick v. Smith, 147 Ky. 159, 143 S. W. 1027. facts which formed an equally independent and separate cause of action. 2. Apprentices 8-Contract not complying with statute is valid in so far as executed. A contract attempting to create the relationship of master and apprentice, but not complying with the requirements of Ky. St. 1922, §§ 2591-2610, is valid in so far as it was executed. 3. False imprisonment 2—Master not liable for false imprisonment because apprenticeship contract was invalid. Even if there were an attempt to apprentice an infant to defendant, which was abortive because of a failure to conform to the statutory prerequisites to the creation of that relationship, the only consequence would be the loss to each party of the remedies given by the statute for the enforcement of the relationship, and the master would not be thereby rendered liable for false imprisonment because of services rendered under the contract. 4. False imprisonment 39-Directed verdict justified. [3] This principle of law is of course thoroughly established, and we have no fault to find with its application in any of these cases upon the facts there presented, but the facts of this case are not such as to admit of its application, since appellant neither did any thing which he was not bound to do, nor refrained from doing anything which he had a right to do in return for the promise of appellee to pay her husband's indebtedness to him. The facts here are simply these: The widow, within 13 days after the death of her husband, voluntarily agreed to pay his inEvidence 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 transaction between him and his sister-inlaw. Grimes v. Grimes, supra. Hence there was no detriment to him, as confessedly there was no benefit to her, to support her promise, and she was clearly entitled to have the note and mortgage canceled. Judgment affirmed. BROOKS v. MADDEN et al. (Court of Appeals of Kentucky. March 9, 1923.) 1. Action 50(4)-Pleading →369(1, 6)— Actions against employer and racing association held improperly joined; motion to require election proper in case of misjoinder; on refusal to elect, court properly struck out one cause of action. the master had coerced the boy into taking trips referred to, though the boy testified he was forced to take one trip by some negro not shown to be in defendant's employ, held not to show false imprisonment by defendant, so that a verdict in his favor was properly directed. Appeal from Circuit Court, Fayette County. Action by James Brooks, an infant, by his next friend, Jonas Ellis, against John E. Madden and others. Judgment for defendants, and plaintiff appeals. Affirmed. R. E. L. Murphy, of Lexington, for appellant. Hunt, Northcutt & Bush, of Lexington, for appellee State Racing Commission. J. Keene Daingerfield, of Lexington, for appellee Madden. THOMAS, J. Appellant, James Brooks, an 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 a judgment against defendant Madden for onment and against a racing commission to enjoin 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 plaintiff 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 It was alleged in the petition that Madden proper for the court to strike from the petition owned a farm in Fayette county whereon he 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 Indexes 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 under compulsion he was forced to serve Madden until December 2, 1919, when he managed to make his escape and returned to his mother in Lexington, and that as a consequence "he has suffered great injury and damage by reason of being restrained of his liberty and being compelled to labor and serve the defendant John E. Madden against his will and consent, and being transported out of the state of Kentucky against his consent, in the full sum of $25,000." The alleged wrongful acts committed by the state racing commission, as appears from the petition, were done after plaintiff escaped from his imprisonment by Madden and returned to Lexington. [1] From the above brief statement of the pleadings, it requires no argument or citation of cases to show that under the provisions of section 83 of the Civil Code of Practice there was a clear misjoinder of causes of action, and under the provisions of section 85 of the same Code the motion to require plaintiff to elect was properly sustained, and under the same provisions it was likewise proper for the court to strike from the petition either of the improperly joined causes upon plaintiff's refusal to elect. That being true, it necessarily follows that the court did not err in rejecting the offered amended petition by which the state racing commission was again sought to be brought into the case upon substantially the same facts as alleged against it in the original petition, or upon facts which formed an equally independent and separate cause of action, if any at all. There is therefore no ground for complaint against the judgment in favor of the state racing commission. [2, 3] A vigorous argument is made in brief of counsel for plaintiff that Madden, under the alleged facts, was guilty of "peonage" as defined by section 3944 of the Federal Statutes (U. S. Comp. St. 1918) and punished as prescribed by section 10444 of the same statutes. But that argument does not appeal to us because the facts appearing in the record do not constitute peonage within the On June 3, 1920, Madden entered motion to require plaintiff to elect as against which defendant he would proceed, upon the ground that the causes of action attempted to be relied on against the separate defendants were entirely distinct and wholly disconnected. That motion was sustained, and plaintiff was given 10 days in which to make his election. He declined to do so, but moved the court to elect for him, which motion was overruled, and he then filed a written motion declining to elect. Whereupon the court elected for him that he should prosecute his supposed cause of action against Madden and dismissed it as against the state racing commission. At a subsequent term of the court contemplation of that statute. Plaintiff's plaintiff tendered an amended petition in which he alleged that by the wrongful acts of the state racing commission he had been deprived of work for others than Madden and earning wages of $100 per month which his skill and ability commanded, and that he was compelled to work at other employment at about $30 per month, and that he had thereby been damaged in the sum of $889.20, for which he sought judgment against both defendants, and that the state racing commismission be "enjoined," instead of "prohibited," as prayed in the original petition, from further interference with his employment. The 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 shown was to be paid to plaintiff and the remainder that the master would be liable for false imto his mother, and that he contract was strict-prisonment because of services executed pur counsel also insists that the facts show an effort to create the relationship of "master and apprentice," as provided by chapter 84 of the 1922 Edition of Carroll's Kentucky Statutes, nearly all of the sections whereof are copied in brief, and that they were not complied with, and because of which, he reasons, that a great wrong was perpetrated on his client, for which he is entitled to recover. This court, however, in the case of Cain v. Garner, 169 Ky. 633, 185 S. W. 122, L. R. A. 1916E, 682, Ann. Cas. 1918B, 824, held that such contracts were valid in so far as they were executed, and, in (248 S.W.) suant thereto. We are thoroughly convinced that the only consequence of such an abortive effort, provided the relationship was wrongfully entered into, would be the loss to each party of the remedies given by the statute for the enforcement of that relationship, and not a right to recover damages because of the failure to comply with the statute, which therefore it is clearly apparent has no bearing upon the case whatever. by the buyer, and it is so planted, the seller is Where plaintiff testified, and defendant admitted, that defendant warranted the seed sold to be German millet seed, and that plaintiff sowed the seed in proper soil, but received only an inferior crop of wild grass hay, which was worth less than he paid for the seed, the evidence sustained the judgment allowing plaintiff the value of the crop of millet he might reasonably have expected, if the seed had been 4. Principal and agent 104(2)-Salesman has apparent authority to warrant variety of seed. [4] Plaintiff and his mother, who testified as a witness in his behalf, claimed that the written contract entered into in the early part of 1917, after he had worked some time under an oral one, was not signed by the latter, although it is conclusively proven that plaintiff himself signed it. We are thor-as warranted. oughly convinced, however, that if the moth- 3. Sales 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, conclusively 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 forced him against his consent to make the first trip from Lexington to Louisville; but there is no pretense that such person represented Madden or had any authority to act for him or was even working for him. It is not pretended that he was in any manner forced by any one to remain in Louisville where he continued to draw his monthly wages, nor was he in any manner forced to leave Louisville and go to New York with the horses of defendant. It is true he and his mother testified that the latter was not notified of the contemplated trip to Louisville, but, as stated, both he and she continued to draw the wages from that time till he quit the employment. The alleged cause of action, therefore, if we should concede the sufficiency of the petition as against Madden, is about as much unproven as any case which has come under our observation, and, there being no violation of any statute affording the cause of action, the court properly directed the verdict in favor of defendant. Wherefore the judgment is affirmed. HOBDY & READ v. SIDDENS et al. * (Court of Appeals of Kentucky. March 9, 1923.) 1. Sales 442(11)-Breach of warranty of seed variety entitles buyer to difference of value between crop produced and crop which should have resulted. A salesman for a wholesale seed company, who had during several years sold seed to a retailer, was within the apparent scope of his authority when he warranted certain seeds sold to be of a particular variety, although notices on his principal's letterheads and on tags attached to its bags of seed contained notice that the wholesaler made no warranties. 5. Sales264-Sale of seed by name raises implied warranty. A sale of seed by name raises an implied warranty that it is true to name, and the fact that the buyer inspected it before buying is immaterial, if its character could not be ascertained by a reasonable inspection. 6. Sales 442(13) - Wholesaler, warranting variety of seed, is liable for buyer's liability on similar warranty. When a wholesale seed dealer sold seeds to lar variety, and with knowledge that the rea retailer with warranty they were of a particutailer intended to sell them again to persons who would sow them, and thereafter the retailer 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. Appeal from Circuit Court, Allen County. Action by Dee Siddens against Hobdy & Read to recover damages for breach of warranty of seed, in which the defendants by cross-petition made the National Seed Company a party defendant, and sought recovery against it for the amount recovered by plaintiff from the original defendants. Judgment for the plaintiff against the original defendFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied May 8, 1923. Where seed is warranted as to kind, and the seller knows that the seed is to be planted Morris & Jones, of Frankfort, and W. D. Gilliam and Gilliam & Gilliam, all of Scottsville, for appellants. Davies, Page & Downing, of Louisville, and Oliver & Dixon, of Scottsville, for appellees. F. R. Goad, of Scottsville, for Siddens. seed. ants, and cross-petition dismissed, and the 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 directionsville, 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 the said seed company had warranted the same to be the best quality German millet The answer and cross-petition concluded with a prayer that the plaintiff's petition be dismissed; that defendant National Seed Company be summoned as a defendant on cross-petition, and be made a defendant, and, in the event the court should hold Hobdy & Read liable in damages to appellee Siddens, then they prayed that they have recovery over against the National Seed Company for a like amount. Issue being joined and evidence taken, the chancellor, to whom the law and facts were submitted, the cause having been, on motion of appellants and National Seed Company, transferred to equity, entered a judgment in favor of appellee Siddens against Hobdy & Read for $1,000,, and dismissed the cross-petition of appellants Hobdy & Read against the National Seed Company. This appeal is prosecuted by SAMPSON, C. J. This is an appeal from a judgment in a suit commenced in the Allen circuit court for the purpose of recovering damages for breach of warranty as to kind and quality of millet seed. Appellee Siddens, a farmer owning a rich river bottom farm in Allen county, purchased of appellants, Hobdy & Read, retail seed merchants, at Scottsville, 40 bushels of German millet seed at the price of $3.75 per bushel, to be delivered April 1, 1920. As the merchants did not have the seed on hand at the time, they agreed to procure same for appellee Siddens, and did so, and later appellee sent his wagon 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 crossappeal. on a 50-acre tract of fine, rich bottom land, after the same had been put in proper condition to receive the seed. When the seed germinated and grew, it was discovered, according to the contention of appellee Siddens, that the harvest was going to be something very different from millet. According to his testimony, it was some kind of unknown wild grass, which produced a hay of very little value. It is further alleged: [1] The principle upon which this action rests has been stated in several opinions in substance as follows: Where seed is warranted as to kind, and the vendor knows that the seed is to be planted by the vendee, and it is so planted, the vendor is answerable for the difference between the value of the product of the seed planted and the value of the product that would have resulted, had the Bushnell, 63 Neb. 568, 88 N. W. 693, 93 Am. seed corresponded to the warranty. Dunn v. St. Rep. 474; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; L. R. A. 1916C, 1001; Crutcher & Co. v. Elliott, 13 Ky. Law Rep. 592; Gardner v. Winter & Co., 117 Ky. 382, 78 S. W. 143, 25 Ky. Law Rep. 1472, 63 L. R. A. 647. See, also, Buckbee v. Hohenadel Jr. Co., 224 Fed. 14, 139 C. C. A. 478, L. R. A. 1916C, 1001, Ann. Cas. 1918B, 88. "That had said seed been the kind and character bought, and the kind and character warranted, represented, and sold by the defendants to him, that on said 50 acres he would have, at a low estimate, produced one ton of first-class millet per acre, or a total of 50 tons upon said 50 acres; that said hay would have reasonably been worth on the open market, and was worth and would have sold for, $1 per hundredweight or more, or $1,000 is a reasonable 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 as 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 character of the growth produced would not and did not exceed 10 tons, and at a high estimate was not worth exceeding 75 cents per 100, or a sum total of $150." Appellants, Hobdy & Read, filed answer and cross-petition. By the answer they controverted part of the affirmative averments of the petition, and admitted in substance that they had sold the seed to appellee Siddens at the price stated in the petition, and appellant Read, with whom he dealt, Read on behalf of his firm warranted the said seed to be first-class German millet seed, suitable for sowing. He is corroborated in this by Read, of the firm of Hobdy & Read, who states in substance the same. It is further shown by the evidence introduced by appellee Siddens that the crop produced on his bottoms was not that of German millet and was of very little value; that his land was rich and well suited to millet, and that before (248 S.W.) he sowed the seed in question he prepared the land in the most approved fashion to receive the seed; that the season was good for millet, and that the said land should have produced, had the seed been German millet, at least a ton of hay per acre which said hay would have been reasonably worth a total of something more than $1,000; that he paid $150 for the seed; that the crop he obtained from the said 50 acres was worth only about $150, and that he had been damaged by loss of crops at least $1,000. These facts were well established. "Q. I will ask you if Mr. Read did not state to you they had been handling the Tennessee millet before this time, and if he did not raise the question as to whether the seed which the National Seed Company proposed to sell was the true German big-headed millet? A. Yes, sir; he did. He did not state he had been Appellee National Seed Company defended handling the Tennessee millet, but he asked me if it was the big-headed German millet? chiefly upon the ground that it made no war"Q. Did they further state the seed which ranty of the seed which it sold to Hobdy & he had 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 and stationery, including bills and order blanks, there was printed in plain type in substance the following: satisfy his local trade, and didn't you assure him the seed which you were selling was that character of seed? A. I assured him it was the big-headed German millet. "Q. Did you have authority from the National Seed Company to say to Mr. Read that the seed he purchased was the true German big-headed millet? A. Yes, sir." "We give per cent. of purity or germination for the benefit of our customers. These tests are carefully prepared, but not guaranteed. * * 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 implied, as to description, quality, productiveness, or any other matter of any seeds we send out, and we will not be in any way responsible for the crop." in Louisville. It therefore appears to be conclusively proven that the National Seed Company did in fact, through its agent, warrant 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 & Read purchased the seed with the understanding that there was no warranty; that appellants had actual knowledge that appellee National Seed Company did not warrant its seeds. It admits, however, that it sent its salesman to Scottsville, in Allen county, and sold seeds to appellants, Hobdy & Read, and that its said agent, while in Scottsville, sold to appellees at least 100 bags of seed, which were later delivered to appellants, and for which appellants paid appellee National Seed Company the full price. Its agent, Mr. W. F. Alvis, who took the said order, testified in substance that he sold the seeds to appellants, Hobdy & Read, for German millet, to be sold to their customers for sowing. He was asked: "Q. The 100 bags of true German-big-head German-millet were shipped to them after their purchase? A. Sure. "Q. How many years have you been knowing of Hobdy & Read, or selling them seed? A. not to warrant seeds, would perhaps be sufficient to defeat a recovery in a case like this. But Alvis had authority to act for and on behalf of the appellee seed company. He was offering to sell and was selling seed for it. He had been its representative for several years, and had called upon appellants at different times and sold them seed. Whether he had actual authority from his employer to warrant the seed is not so material, for he was acting within the apparent scope of his authority when he said to Mr. Read, of the firm of Hobdy & Read, that the seed were first-class big-headed German millet seed, and assured him that the said seeds were first-class in every respect. Although appellee National Seed Company at the time had a general rule not to warrant the quality of its seed, it had the power to make such warranties in specific sales, as the evidence shows it did in this case, and its agent, Alvis, in offering the seed for sale and in selling them, was acting in the apparent scope of his |