(248 S.W.) jury at the conclusion of the commonwealth's and clarified by the introduction of oral testievidence. [6-8] It is finally contended for appellant that his motion for a peremptory instruction should have been sustained. It is the rule that where there are any facts introduced in evidence from which the guilt of the accused can reasonably be deduced, the case should be submitted to the jury under appropriate instruction, although a conviction based on the evidence would be regarded as flagrantly against it. The finding of a discharged shell at the place of the assassination which could have been fired from appellant's shotgun, the evidence to the effect that he had been seen on two or three occasions immediately preceding the killing between his home and the deceased's place and that he offered to bribe a neighbor to testify that he was at home on the day that the killing occurred, and the slight similarity between the indentation on the discharged shell found at the scene of the killing and the indentation made on the same kind of shell fired from his gun, in connection with his statement on a former occasion that the deceased ought to be killed, tended to establish the commonwealth's case, and authorized its submission to the jury. Appellant, with others, was charged in the indictment with the murder, and, although the jury found him guilty under an unwarranted instruction, the finding under that instruction is not tantamount to an acquittal under the instruction by which the jury was authorized to convict him, if it believed that he alone was concerned in the killing. On another trial, if the evidence be the same as on the last, the instruction on conspiracy will not be given, but the case will be submitted to the jury on the charge that appellant alone committed the murder. The judgment is reversed. COMMERCIAL AUTO CO. v. BRANDEIS MACHINERY & SUPPLY CO. (Court of Appeals of Kentucky. March 6, 1923.) 1. Appeal and error 544(2)-Sufficiency of pleadings to sustain judgment only question reviewable in absence of bill of exceptions. Where there was no bill of exceptions in the record on appeal from a judgment for defendant on its counterclaim, the only question presented for review is whether the pleadings support the judgment. mony, cannot be applied, where the contract sued on, which was attached to the petition, was a standard form complete in every detail, adopted by plaintiff for use by it among its retail dealers everywhere, and was offered to its retail dealer as a complete contract, and so accepted and executed by him. 3. Reformation of instruments 37-Mistake must be alleged to be mutual. Before one can have reformation of a written instrument upon the grounds of mistake, he that the mistake was mutual, not unilateral, so must allege and prove by satisfactory evidence that a counterclaim, alleging that the contract sued on by mistake failed to contain the entire agreement without any allegation that the mistake was mutual, was insufficient to support a judgment. 4. Reformation of instruments 36(3)—Facts showing mutual mistake should be alleged. To entitle a party to reformation of an instrument for mistake, it is necessary to allege facts showing how the mistake was made, whose it was, and what brought it about, so that the mutuality of the mistake may appear. Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by the Commercial Auto Company against the Brandeis Machinery & Supply Company. Judgment for defendant on its counterclaim, and plaintiff appeals. Reversed for further proceedings. Leo J. Sandmann, of Louisville, for appellant. Robert Lee Page and Davies, Page & Downing, all of Louisville, for appellee. SAMPSON, C. J. Appellant Auto Company commenced this action in the Jefferson circuit 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 shipment of supplies to the auto company under a written contract, of date February 4, 1918. Appellee company filed an answer and counterclaim, by which it sought to recover of appellant auto company the sum of $3.042.00. A jury trial resulted in a verdict for appellee supply company on its counterclaim for the sum of $3,042; complaining of this, the auto company appeals. [1] As there is no bill of exceptions in the record, the only question presented is whether the pleadings support the judgment. Miller's Appellate Practice, section 58; Broad 2. Evidence 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. plainable by parol. Wellman Electrical Co., 173 Ky. 462, 191 S. The rule that a written contract, which was W. 289. The petition stated a cause of aca mere 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 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 defendant, undertook to aver that the written contract attached to the petition, and upon which appellants relied for recovery by mutual mistake, omitted a material part of the contract whereby the auto company was to purchase outright at least 10 traction units at the market price, plus freight, on or before September 1st of that year, or within the term of the contract; or that the written contract attached to plaintiff's petition was a mere memorandum which did not purport to contain all the terms of the contract, and which could, under our rule, be from being short and incomplete, goes into [3, 4] The contract in the instant case, far long detail, appearing on its face to be a complete contract. The only remedy left appellee company, if the contract did not contain the complete agreement, was to seek a reformation thereof on the grounds of fraud or mistake. prepared the contract, it could hardly plead As appellee company's agent fraud in its execution. It was therefore relegated to mistake, committed either by the parties or by the draftsman of the instru ment. Before one can have a reformation of a writing, such as this, upon the grounds of explained and clarified by the introduction satisfactory evidence that the mistake was mistake, he must not only aver but prove by of oral testimony. Elliott on Contracts, § 1632. While one or both of these pleas were intended by the pleader, the averments of the said counterclaim are, we think, wholly insufficient for the purpose. [2] From a careful examination of the long printed contract attached to plaintiff's petition, and which forms the basis of this action, we are convinced that it is a standard form, complete in every detail, adopted by the appellee for use by it among its retail dealers everywhere, and in no sense is a memorandum or outline agreement. At any rate it was prepared and offered by the appellee supply company to its retail dealer as a complete contract, and was so accepted and executed by appellant auto company. It is not such an obligation or undertaking as was under consideration in the case of Asher & Hensley v. Stacey, 65 S. W. 603, 23 Ky. Law Rep. 1586; nor such as is treated of in Cyc. vol. 9, p. 77, of which it is said: "Where a contract consists of an oral agreement, a part of which only has been reduced to writing, it is proper to declare on it as a parol contract," upon which appellee relies. We are also convinced that the writing under consideration does not come within the rule recognized in the case of Castleman-Blakemore v. Pickrell & Craig Co., 163 Ky. 750, 174 S. W. 749, upon which appellee leans for support, for there it was held that parol evidence could be introduced to explain a contract only where mutual, not unilateral, There is no averment in the counterclaim that the mistake was mutual, nor indeed any averments showing how or why the mistake was made, or auto company, its agents or servants, knew who made the mistake, or that 'the appellant anything of or concerning the mistake. "It is necessary," says 34 Cyc. p. 976, "to aver facts showing how the mistake was made, whose mistake it was, and what brought it all cases the mutual mistake or circumstances about, so that the mutuality may appear. In from which the same can be readily inferred should be alleged with precision and clearness." Fairbanks-Morse Co. v. Manning & Combs, 164 Ky. 478, 175 S. W. 1000; Cecil v. Ky. Live Stock Insurance Co., 165 Ky. 211, 176 S. W. 986; Riddle et al. v. Runnions et al., 162 Ky. 750, 172 S. W. 1041; Scott v. Spurr, 169 Ky. 575, 184 S. W. 866; Kreitz v. Gallenstein, 170 Ky. 16, 185 S. W. 132. Evidence of a mistake in a writing is not competent, unless mutual mistake is averred in the pleading. Riddle v. Runniens, supra. Measured by these rules, the counterclaim was wholly insufficient, and the general demurrer interposed to it by appellant company should have been sustained by the trial court. Failing to do so, the court committed prejudicial error for which the judgment must be reversed. Judgment reversed for proceedings not inconsistent with this opinion. Judgment reversed. (248 S.W.) BAILEY CONST. CO. v. CORNETT. (Court of Appeals of Kentucky. March 6, 1923.) 1. Municipal corporations 551-Setting out proceedings in petition to enforce lien for improvements is unnecessary. Under Ky. St. 1922, § 3574, part of the provisions for public improvements by cities of the fourth class, which makes an allegation, in an action to enforce a lien for such improvements, that the improvement had been made and the work accepted pursuant to ordinances of the city, duly passed in accordance with law a sufficient pleading, it is unnecessary, in a petition containing the statutory allegation to set out the facts relating to the improvement and the passage of the preliminary resolution, ordinances, and the making of the contract, and such unnecessary allegation does not render the petition demurrable. 2. Pleading 312-Exhibits filed for use as evidence do not always control allegations of petition. Though writings like a note or other written contract, which constitute the basis of the action and for that reason are required by Civ. Code Prac. § 120, to be filed with the petition as exhibits, must control if they contradict the allegations of the petition, that is not always true of writings permitted by section 128 to be filed as exhibits merely for use as evidence, which exhibits do not form part of the record, unless used as evidence on the trial. 3. Municipal corporations 551-Failure of resolution and ordinances filed with petition as exhibits to show adoption and publication does not invalidate petition. Where a petition to enforce a lien upon abutting property for the improvement of a street in a fourth class city contained the allegation of regularity which was made sufficient by Ky. St. 1922, § 3574, the fact that the resolution and ordinances, which plaintiff was erroneously compelled by the court to attach to his petition, failed to show that they had been adopted by a yea and nay vote or that they had been published, did not render the petition insufficient, since those exhibits were not a part of the petition and proof of the legal adoption and publication of the resolution and ordinances could be made from other records. 4. Municipal corporations 552-After work is accepted, property owner must show defense to lien. After a municipal improvement has been completed and accepted by the city, which has apportioned the cost against the abutting property owners, an owner objecting to the lien must, by answer set up and by proof, establish such a defense as would defeat the lien. Appeal from Circuit Court, Harlan County. Action by the Bailey Construction Company against A. B. Cornett. Judgment for defendant, when plaintiff declined to plead further, after general demurrer to the peti tion was sustained, and plaintiff appeals G. G. Rawlings and Sampson & Sampson, all of Harlan, for appellee. SETTLE, J. The appellant, Bailey Construction Company, a corporation, attempted by this action in equity to enforce, as against certain lots in Harlan, Ky., the property of the appellee, A. B. Cornett, liens aggregating in amount $1,371.42, arising, as alleged, out of its construction by authority of, and under a contract with, the city council of Harlan of certain of its streets abutted by the lots of appellee; the acceptance by the council of the work of construction when completed, and its apportionment to and against the lots, respectively, of the several sums as constituting the appellee's proportionate share of the cost of such street construction. The appellee filed in the court below a general demurrer to the petition, which that court sustained. Appellant duly excepted to this, ruling and declined to further plead; thereupon the court entered judgment dismissing the petition at its cost, and, from the judgment indicating these rulings, the latter has appealed. [1] The General Assembly of this state, in March, 1916, by chapter 113, Acts 1916, p. 675, amended the previous statute and greatly enlarged the powers of the boards of council of cities of the fourth class, to which Harlan belongs, respecting their control, construction, and reconstruction of streets, alleys, and other public ways in such cities. The provisions of this amendatory act together with such of those of the prior statute as seem to have been retained by it are now contained in sections 3562 to 3579, inclusive, Kentucky Statutes (Edition 1922). Prior to the passage of the act of March, 1916, the statute respecting cities of the fourth class, made no provision for the creation or enforcement of liens upon or against the abutting real estate of property owners for the reconstruction of streets, but such liens are allowed by the present statute for reconstruction as well as original construction of streets. The specific powers conferred by the statute, supra, on the boards of council of cities of the fourth class, with respect to the control of their streets and other public ways, are enumerated in section 3562; but the power of the council to improve them at the cost of the abutting property owners, providing for the assessing of such property for such cost and the giving of liens thereon for its payment, are more particularly set forth in the succeeding section 3563. By section 3570 it is provided that the council, at least For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for in section 3570, declaring the necessity for and setting forth the character and extent of the street improvement, before it was ordered by an ordinance of the council; it being argued that such a resolution was jurisdictional and its passage a condition precedent to the right of the council to enter into a contract for the improvement of the streets. In overruling this contention, we said of that part of section 3574, quoted above: 30 days before ordering, through the pas-, the city council of the resolution provided sage of an ordinance, the improvement of any street, alley, public way, or sidewalk, as allowed by section 3563, shall adopt and cause to be published in a newspaper as therein directed a resolution designating the streets, public ways, or sidewalks to be improved, etc. This section also provides for the filing of petitions by owners of property abutting the streets or other public ways sought to be improved at any time before the final passage of the ordinance ordering the improvement, for the purpose of designating the material to be used for that part of the improvement for the cost of which their abutting property would be liable, or of protesting against the improvement; and in either event the wishes of the petitioners or protestants shall prevail unless overriden by an ordinance passed by a two-thirds vote of members of the council. Sections 3571-3573 relate further to the powers of the council and street committee in deciding what streets or other public ways shall be improved, the material to be used in same, plans and specifications for the work, requiring of estimates, advertising for and accepting of bids, letting of contract's for work and the like. Section 3574 also contains an enumeration of further powers that may be exercised by the council; among them the authority to consider protests, hear evidence, reject or accept work of construction, apportion the cost thereof against abutting property, and take such steps, by action or otherwise, as may be necessary to enforce the liens therefor in the interest of the city. This section also provides: "Formerly in such cases the rules of pleading required that a plaintiff should, to make his pleading good and to justify the enforcement of his lien, set out in detail and at length all the acts of the municipal board necessary to give him the statutory lien, and this enactment, which is now in the charters for most, if not all, classes of cities in this state, was intended to dispense with this cumbersome and such proceedings; and was intended, not only laborious process of pleading in detail all of to permit a plaintiff in such cases to thereby plead a conclusion of law as to the validity of such proceedings. but in addition placed upon the defendant the necessity, in defending such action, of pleading as a defense any fault or illegal proceeding shown by the record of the council upon which it might rely. Nor is there any hardship in this rule. The records of the city councils are public records and available the purpose manifestly was to relieve the plainas well to the defendant as to the plaintiff, and tiff in such action from setting forth in detail all the proceedings thereof which go to make out for him a valid lien, and to require a defendant who relies upon anything shown in the record to defeat the lien to specifically point it out, and thereby simplify the pleadings 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 council or the courts in which suits are pending shall make all corrections, rules and orders to do justice to all parties concerned; and in no event shall the city be liable for any part of the cost of such improvement except as provided in section 3563. Such liens may be enforced, as other liens on real estate, by action brought in the name of the city or the contractor entitled thereto, and in any such action an allegation in substance that the improvement had been made and the work accepted pursuant to and by ordinances of the city duly passed in accordance with law, shall be a sufficient pleading of the ordinances and proceedings under which the work was done and accepted without setting out the same in full. In the very recent case of Ball v. Geo. M. Eady Co., 193 Ky. 813, 237 S. W. 670, we had occasion to consider the meaning of section 3574 of the statute, supra. In that case it was complained by the appellant that the petition did not state a cause of action because of its failure to allege the passage by General Assembly in a matter of procedure to require the defendant in such an action to assume the burden of showing from the record the want of jurisdiction." [2] We regard the case, supra, conclusive of the case at bar. It is true the petition here sets out the facts relating to the improvement and also the passage of the preliminary resolution, ordinances, and making of the contract under which it was effected, but this was unnecessary under section 3574, and much of it mere surplusage. The fact that the records of the council were referred to by the petition was unimportant. The records (resolution and ordinances) were not filed as exhibits with the petition by the appellant. He was improperly required by the court below to file them on the appellee's motion, but they neither added to nor detracted from the material averments that sufliciently conformed to the requirements of section 3574, supra; hence, we see no merit in the appellee's contention that the ex (248 S.W.) but hibits contradict the averments of the petition and for that reason should control in determining whether the pleading states a cause of action. Writings, like a note or other written contract, which constitute the basis of the action and for that reason are required by the Civil Code, § 120, to be filed with the petition as exhibits, if found to contradict its averments, must control; this is not always true of writings permitted by section 128 of the Code to be filed as exhibits merely for use as evidence. In an equitable action such an exhibit will not even constitute a part of the record, if it be shown that it was not used as evidence on the trial. In an ordinary action it will not constitute a part of the record, unless it affirmatively be made to appear that it was used as evidence on the trial. [3] The fact that the preliminary resolution determining the necessity for and character of the improvements and designating the streets to be improved, which the court compelled the appellant to file with its petition as an exhibit, does not upon its face, show it was passed by a yea and nay vote 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 was passed by a yea and nay vote, or published as required by the statute, make it contradictory of the averments of the petition. The resolution and ordinances were made exhibits, not as a basis for the action, but for use as evidence, and the facts as to the manner of their passage or whether they were published as required, may be proved after the issues are completed and when the case is tried by the minutes of the city council meetings at which they were acted upon. In Louisville v. Cornell, 14 Ky. Law Rep. 398 (Super. Court), it was held that the rule that where there is a conflict between the allegations of a pleading and the exhibit filed with it, that the latter should control, has no application where the petition is framed for the enforcement of an ordinance alleging its passage at two successive meetings of the council with two weeks interven ing, where such exhibit is silent as to the time of the passage of the ordinance. This case seems to be in accord with Stone, Auditor, v. Wickliffe, 106 Ky. 252, 50 S. W. 44, 20 Ky. Law Rep. 1806; Boyd v. Bethell, 9 S. W. 417, 10 Ky. Law Rep. 470; Green v. Page, 80 Ky. 370. tion, therefore, is whether the work was done according to contract with the city, accepted by the city, and the amount due by defendant apportioned to him by the city authorities, as alleged in the petition. As this has been done, in order to defeat the appellant's lien, the appellee must by answer set up, and by proof establish, such a defense as would effect that result. Johnson v. McKenna, 171 Ky. 389, 188 S. W. 480; City of Maysville v. Davis, 166 Ky. 565, 179 S. W. 463; Mulligan V. McGregor, 165 Ky. 231, 176 S. W. 1129; Ball v. Geo. M. Eady Co., etc., 193 Ky. 813, 237 S. W. 670. It is our conclusion that the petition sufficiently states a cause of action under the statute, supra, hence the action of the circuit court in sustaining the demurrer to same must be held reversible error. Other questions raised on the record are not passed on. Judgment reversed, and cause remanded, with directions to the lower court to set aside the judgment, overrule the demurrer to the petition, and permit such further proceedings in the case as may not be inconsistent with the opinion. UNION LIGHT, HEAT & POWER CO. v. O'CONNELL. (Court of Appeals of Kentucky. March 6, 1923.) 1. Damages 143-Petition held not demurrable, as showing injuries due to fright alone. A petition alleging that plaintiff was violently thrown backwards against a table by an explosion of gas, and was thereby knocked motionless and speechless for many seconds, and her bed under physician's care, and suffered soon afterwards collapsed, and was confined to great mental and physical pain, that her nervous system was permanently destroyed, and her heart partly affected, and she had lost weight and was unable to do her household duties, was not demurrable as showing that her injury was by fright alone, and that she suffered no physical injury. 2. Damages 210(2)-Injury not pleaded provable to show violence of explosion and resultant injury, but jury should have been instructed not to allow damages therefor. Where plaintiff suing for injuries from explosion of gas alleged no injury to her back or hip, evidence thereof was competent as tending to show the violence of the concussion and the resultant injury, but the jury should have been instructed not to allow damages therefor. [4] It will be observed that the exhibits that were filed only relate to the making of the improvements, none of them to their com- 3. Damages 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. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |