evidence shows that he did not use it every day of the time he retained it, for he was working on it and trying to get it into shape to serve his purposes; that he was in good faith giving it a fair trial, and not merely keeping it for the use he was making of it, for it was a losing proposition from the beginning, the trouble, repairs, and upkeep exceeding the profit derived from its use. The chancellor was therefore right in determining that appellee made his offer to rescind within a reasonable time.

[2] 2. It is further contended by appellant company that appellee is restricted to the express warranty contained in the written order for the machine which he signed. If this be true, appellee was not entitled to a rescission, for the warranty mentioned goes merely to the quality of the vehicle and not to its fitness for a particular use, and it was the unfitness of the vehicle for his use of which appellee complained, rather than of any lack of quality of its parts. His principal complaint was that the vehicle had not sufficient power to negotiate the grades on the roads traversed by his transfer line and to haul the loads required to be transported.

The rule governing sales of machinery for a particular use is that approved by this court in Marbury Lumber Co. v. Stearns Mfg. Co., 107 S. W. 200, 32 Ky. Law Rep. 739, quoting from section 988 of Benjamin on Sales,

And so, in this case, whether warranty of fitness for particular use be implied or excluded, there is still nonperformance of the contract of sale itself.

The contract provides that appellant company is to furnish appellee one auto wagon. There were really two orders signed by appellee, the first one merely called for an auto wagon without other description; but the second called for one auto wagon as shown on page 15 of appellant company's catalogue, a copy of which is found in the record. On page 15 of that catalogue appears the illustration of an auto wagon. No horse power is mentioned; but the printed matter on that page recommends the vehicle shown as suitable for just such uses as the appellee desired a vehicle.

the sale of machinery, under such circum- ing but the owner's temper must be said not stances, expressly stipulate against all war- to fill that condition." ranties implied by law, none will be imposed by the court against their consent, still such stipulation will not be given effect unless fairly made as a part of the contract of sale. Such a stipulation, relieving, as it does, the manufacturer from duties imposed by law, will be conclusively presumed to have been inserted in the contract of sale for the sole benefit of the manufacturer, the beneficiary of such relieving stipulation, and effect will not be given to such stipulation unless its inclusion in the contract was fairly procured. In the case under consideration, this stipulation was contained in a printed form of order blank or contract used by appellant company. The language of the stipulation is extremely technical, "This express warranty excludes all implied warranties;" its meaning is clear to but few persons. The Fairly construed, therefore, the contract writing in which such stipulation appears called for a vehicle of the kind there describdirects appellant company to furnish to ap-ed, and capable of performing the service pellee an auto vehicle, a class of machinery for which it was there recommended; and concerning which appellee was indisputably ignorant; and the particular style or pattern of auto vehicle ordered was that selected and recommended by the company's agent; this is undenied. Appellee testified that he explained to the company's agent the purposes for which he intended to use the auto wagon; and it is apparent that, had he understood the full import of the stipulation, he would not have signed the order. Under these circumstances, the court will not say that the stipulation against implied warranties was fairly procured to be included in the contract of sale. To hold that it was so included would be to give life to the letter of the contract and render inanimate the spirit thereof.

the failure of appellant company to furnish such a vehicle was not breach of warranty; it was more; it was nonperformance of the contract itself, and default of such character as to constitute ground for rescission of the contract of sale.

Judgment affirmed.

PROVIDENT SAVINGS LIFE ASSUR. SO-
CIETY v. COMMONWEALTH.

(Court of Appeals of Kentucky. Oct. 1, 1914.)
TAXATION (§ 168*)-LIFE INSURANCE-PREMI-
UM TAX.

Where a foreign insurance company had done business in Kentucky for many years, and had a large number of policies in force there, it could not escape payment of the premium tax war-imposed by Ky. St. 88 4226, 4230a, by withdrawing from the state and reinsuring such policies in another foreign insurance company which had never been authorized to do business, and had done no business, in Kentucky, and by making premium collections solely by mail at its home office in New York.

[4] 3. But, aside from the matter of ranties, there is another feature of this contract. Taking the contract literally, appellee bought an auto vehicle, to be "well made of good material." And, if appellant company failed to furnish a vehicle "well made of good materials," it defaulted in performance of the contract. To use the homely illustration found in Benjamin on Sales, § 918, if a man sells to another peas, and send him beans in their stead, that is nonperformance, not breach of warranty.

As the court said in Ideal Heating Co. v. Kramer, 127 Iowa, 137, 102 N. W. 840, where the contract was for the installation of a heating plant, and the contract provided that the work was to be done in "good, workmanlike manner":

"The stipulation means something more than a promise to do a job which shall look wellsomething more than a good example of pipe fitting. A grist mill which will not grind, a reaper which will not cut grain, a locomotive which will not move when proper power is applied, can hardly be said to have been constructed in a good and workmanlike manner. Even so, a heating apparatus that will heat noth

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 291; Dec. Dig. § 168.*]

Appeal from Circuit Court, Franklin County.

Action by the Commonwealth of Kentucky against the Provident Savings Life Assurance Society. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 155 Ky. 750, 160 S. W. 476.

Wm. Marshall Bullitt, Clarence C. Smith, Bruce & Bullitt, and Keith L. Bullitt, all of Louisville, for appellant. James Garnett, Atty. Gen., John A. Judy, of Mt. Sterling, and C. R. McDowell, of Danville, for the Commonwealth.

CARROLL, J. This is the second appeal in this case. The opinion on the first appeal may be found in 155 Ky. 197, 159 S. W. 698.

For other casos see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Being further of the opinion that the sections of the statute referred to do not violate the fourteenth amendment to the Constitution of the United States, the judgment appealed from is affirmed.

ELLISON v. DAVIS.

(Court of Appeals of Kentucky. Sept. 30, 1914.)

IN FRAUD OF WIFE'S RIGHTS.

Under Ky. St. § 2126, declaring that sales and conveyances made to a purchaser with notice in fraud of the right of the wife or child plaintiff by the husband of defendant is void as to maintenance shall be void, a mortgage given to defendant, where she declined to join and plaintiff was aware of the pendency of an action for divorce between the spouses, and that dethe property mortgaged being practically the fendant claimed maintenance from her husband; only property of the husband subject to execution.

On a return of the case after its reversal by [ment of taxes by reinsuring its policy holders this court, the appellant filed an answer in in another company that it avers has never which it averred: That it was a foreign been authorized to do and has not done any corporation, organized under the laws of the business in this state. state of New York, and that on January 1, 1907, it ceased to do business in the state of Kentucky and withdrew from the state. That on January 1, 1911, the Postal Life Insurance Company, a foreign corporation organized under the laws of the state of New York, reinsured all of the business of the appellant written in Kentucky and assumed and agreed to perform all of the obligations of the company in respect to policies issued in Kentucky. That between January 1, 1907, and January 1, 1911, all premiums paid to 1. DIVORCE (§ 275*)-ALIMONY-CONVEYANCES appellant by persons on policies theretofore issued in Kentucky were paid to it at its home office in New York by such persons mailing to it at such office the premiums. But after January 1, 1911, all premiums accruing on policies written by it while it was doing business in this state were paid to the Postal Life Insurance Company, which company at no time had an office or agents in this state and did not solicit or write any business therein, and the premiums paid to it on account of its reinsurance of the business of appellant were paid by the insured mail-2. ing the premiums to it at its home office in New York. It further averred that sections 4226 and 4230a of the Kentucky Statutes, as construed by this court in the former opinion, which held that, notwithstanding the fact that appellant ceased to do business in the state in the manner stated, it was liable for the tax, under these sections, violated the fourteenth amendment to the Constitution of the United States. To this answer a general demurrer was sustained and judgment entered against the appellant for the amount of tax due the state for the years 1908, 1909, 1910, 1911 and 1912. To this judgment the appellant excepted and prosecuted its appeal to this court.

It does not seem necessary that we should write an extended opinion in this case, as the questions involved have been determined by this court adversely to the contention of appellant in Commonwealth v. Provident Savings Life Assurance Society, 155 Ky. 197, 159 S. W. 698, Commonwealth v. Illinois Life Insurance Co., 159 Ky. 589, 167 S. W. 909, and Commonwealth v. Washington Life Ins. Co., 159 Ky. 581, 167 S. W. 872.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 750, 751; Dec. Dig. § 275.*1 SUBROGATION (§ 23*)-RIGHTS OF SUBRO

GATION.

Where plaintiff advanced to defendant's husband money to enable him to discharge a prior mortgage on land which the husband subsequently conveyed to defendant to satisfy a judgment for alimony and the prior mortgage was not assigned, plaintiff is not subrogated to the rights of the mortgagee, and cannot enforce his claim against the land so conveyed. Cent. Dig. §§ 60-66; Dec. Dig. § 23.*] [Ed. Note. For other cases, see Subrogation,

Appeal from Circuit Court, Whitley County. Action by J. M. Ellison against Barbara A. Davis. From a judgment for defendant, plaintiff appeals.

Affirmed.

Tye & Siler, of Williamsburg, for appellant. R. L. Pope, of Williamsburg, for appellee.

HOBSON, C. J. [1] This action was brought to obtain a sale of a house and lot in Williamsburg, which formerly belonged to J. H. Davis, deceased, and at his death descended to his six children. During the pendency of the action a controversy arose as to the proceeds of the share of Dr. R. H. Davis, one of the children. The facts are these: Dr. Davis separated from his wife, Barbara A. Davis, and brought a suit against If it should be said that the question as her for divorce. She filed an answer and to the liability of the appellant for the tax counterclaim, asking a divorce and alimony, on the premiums collected by the Postal Life also an allowance for her two infant chilInsurance Company was not expressly de- dren. During the pendency of the action cided in these cases, then we have no doubt and before any judgment, J. M. Ellison, who that it is liable for the tax on these pre- had a debt against Dr. Davis, induced Dr. miums to the same extent as if the reinsur- Davis to sign a mortgage to him, but this, ance had not been effected and the pre- on being presented to his wife, she refused miums were paid directly to it. A foreign to sign. Ellison at the time had full notice insurance company, doing business in this of the divorce proceeding. The wife after state, will not be permitted to escape the pay- this obtained a judgment for divorce and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

TION.

place where liquor was illegally sold was not The reputation of defendant's house as a competent on the charge of maintaining a nuisance by permitting drunkenness at such house. Liquors, Cent. Dig. §§ 282-286; Dec. Dig. § [Ed. Note.-For other cases, see Intoxicating 226.*]

an allowance of $2,000 alimony. Dr. Davis | 2. INTOXICATING LIQUORS (§ 226*)-NUISANCE then conveyed to her his one-sixth interest -ADMISSIBILITY OF EVIDENCE OF REPUTAin the lot in question which was practically all the property he had subject to execution. Ellison insists that his mortgage, being executed by the husband before the deed to the wife, gives him priority over her. But section 2126, Ky. St., provides: "Sales and conveyances made to a purchaser with notice, or for the benefit of any religious society, in fraud or hindrance of the right of wife or child to maintenance, shall be void as against them."

The mortgage to Ellison executed during the pendency of the divorce proceeding, and with full notice to him of that proceeding, was clearly in fraud or hindrance of the rights of the wife, and was void under this statute as to her; it being practically all the property, subject to execution, the husband had to which she could look for the satisfaction of her claim. The circuit court properly so held.

[2] Ellison also set up these facts: On April 25, 1908, Dr. Davis executed to L. C.

3. INTOXICATING LIQUORS (§ 236*)-NUISANCE -SUFFICIENCY OF EVIDENCE.

defendant's store with bundles which the witEvidence that persons were seen going from nesses took to be whisky would not sustain a persons to assemble at the store and engage in charge of maintaining a nuisance by permitting drunkenness, in the absence of evidence that any of such persons were ever seen drunk on defendant's premises or when leaving the premises.

Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § [Ed. Note.-For other cases, see Intoxicating 236.*]

Appeal from Circuit Court, Fulton County. A. C. Cook was convicted of maintaining a nuisance, and he appeals. Reversed and remanded.

Ed Thomas, of Fulton, for appellant.

wealth.

Steeley a note for $380, and I. N. Steeley James Garnett, Atty. Gen., for the Commonsigned the note as his surety; and to secure this note Dr. Davis and his wife executed to L. C. Steeley and I. N. Steeley a mortgage on the tract of land in question. Steeley wanted his money, and on January 14, 1910, Davis borrowed $300, J. M. Ellison becoming his surety on the note given for it, and

to secure these notes Davis executed to Ellison a mortgage on his dental tools and outfit. The mere fact that the money which was obtained on the notes signed by Ellison as the surety of Davis was used to pay off the Steeley debt, which was a lien on the land, does not entitle Ellison to a lien on the land; there being no assignment of the Steeley note to him and no agreement even as between the parties that he was to have this

lien.

Jones v. Louisville Tobacco Co., 135 Ky. 831, 121 S. W. 633, 123 S. W. 307; Lewis v. F. & G. Co., 144 Ky. 426, 138 S. W. 305, Ann. Cas. 1913A, 564; Flannery v. Utley, 3 S. W. 412, 5 S. W. 878, 9 Ky. Law Rep. 582; Bank of Maysville v. Vicroy, 70 S. W. 183, 24 Ky. Law Rep. 892; Cecil v. And, 7 Ky. Law Rep. 298.

Judgment affirmed.

COOK v. COMMONWEALTH. (Court of Appeals of Kentucky. Sept. 30, 1914.)

sance.

CLAY, C. Defendant, A. C. Cook, was convicted of the offense of maintaining a nuiof $150 and 20 days' confinement in the counHis punishment was fixed at a fine ty jail. He appeals.

The indictment charges that on the 30th day of January, and within 12 months before the finding of the indictment, the defendant did

"unlawfully suffer and permit divers persons to habitually assemble in a house, same being in Fulton county, Ky., and same being then and a brick house near what is known as Riceville, there in his occupation and under his control, and there were permitted divers evilly disposed people to assemble and engage in drunkenness mon nuisance of all good citizens of the comand loud and boisterous language, to the commonwealth of Kentucky then and there in the neighborhood, passing and repassing, residing and being, and having the right then and there to pass, repass, reside, and be," etc.

testified that they had seen colored persons Several witnesses for the commonwealth coming from defendant's store with bundles under their clothes, which they took to be whisky. They never saw defendant sell any whisky; never saw anybody drunk on his premises; and never heard any loud and boisterous language coming therefrom. They knew the reputation of defendant's place for peace and good order, and its reputation was place was also bad. bad. Its reputation as a whisky selling One witness testified that he saw two men drinking about 150 yards east of defendant's store, but did not know from what direction they had come. One witness for the commonwealth, a minister, stated that his reason for prosecuting [Ed. Note.-For other cases, see Disorderly the defendant was that defendant had a House, Cent. Dig. §§ 26-29; Dec. Dig. § 17.*] United States liquor license. Defendant an

1. DISORDERLY HOUSE (§ 17*)—SUFFICIENCY OF EVIDENCE.

Evidence that the reputation of defendant's house for peace and good order was bad would not sustain a conviction for maintaining a nuisance by permitting evilly disposed persons to assemble at his house and engage in drunkenness and loud and boisterous language.

"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

swered: "Yes; I have, but why does that prove me guilty of operating and running a disorderly house?" At the conclusion of the evidence for the commonwealth defendant moved to exclude from the jury the testimony tending to show that defendant's place of business had a bad reputation for peace and good order, and also all testimony showing or tending to show that he had been selling liquor or had sold liquor, or that his place was a place at which liquor had been sold. Defendant then proved by several witnesses that they had frequently bought groceries from defendant's store; that they had never seen or heard any noise or misconduct, and had never seen any drunkenness there. They further testified that defendant conducted a quiet and orderly place.

We therefore conclude that the evidence is insufficient to sustain a conviction for the offense charged in the indictment.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

HIGGINS et al. v. SOWARDS.

(Court of Appeals of Kentucky. Sept. 29, 1914.) 1. PRINCIPAL AND AGENT (§ 183*)—ACTION BY

AGENT-JOINDER OF PRINCIPAL.

2. MORTGAGES (§ 86*)-LEGALITY-SUFFICIEN

CY OF EVIDENCE.

In a suit to enforce the lien of a mortgage given to secure a note of the mortgagor's sonin-law for the amount of a shortage in his acdefended on the ground that the note and mortcounts as agent for certain insurance companies, gage were given to compound a felony, evidence held insufficient to show that there was any promise not to prosecute the son-in-law inducing the execution of the note and mortgage, assuming that he was guilty of an offense.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1350, 1355, 1364; Dec. Dig. § 86.*]

3. CONTRACTS ($ 128*)- ILLEGALITY-COM

POUNDING OFFENSES.

Where the state agent for an insurance company in settling with a local agent for his company and other companies took a note payable to could sue thereon in his own name, since where himself for the amount due such companies, he a contract is made with an agent in his own name, and the promise is made directly to him, he may sue thereon without joining the person beneficially interested, especially in view of [1-3] It will be observed that defendant Civ. Code Prac. § 21, expressly providing that a was not indicted for the offense of selling person with whom, or in whose name, a conliquor without a license, or contrary to the tract is made for the benefit of another may bring an action thereon without joining the local option law. He was indicted for main-person for whose benefit it is prosecuted. taining a nuisance of a particular kind. The [Ed. Note. For other cases, see Principal and nuisance complained of is that he permitted Agent, Cent. Dig. §§ 691-700; Dec. Dig. § 183.*] divers evilly disposed persons to assemble and engage in drunkenness and loud and boisterous language. The only evidence that any one ever engaged in loud and boisterous language is that the reputation of his house for peace and good order was bad. This of itself is not sufficient to sustain a conviction on that phase of the case. King v. Commonwealth, 154 Ky. 829, 159 S. W. 593, 48 L. R. A. (N. S.) 253. Even if he had been indicted for maintaining a nuisance by selling liquor contrary to law, the reputation of the place as one where liquor was illegally sold would not be admissible. Commonwealth v. Eagan, 151 Mass. 45, 23 N. E. 494. Such evidence is not, therefore, competent on the charge of maintaining a nuisance by suffering drunkenness. While several witnesses testified to seeing persons going from defendant's store with bundles under their clothing which they took to be whisky, not a single witness testified to having seen a single person drunk on defendant's premises, or to having seen a single drunken person coming from the premises. While such evidence might tend to establish the fact that defendant was engaged in selling whisky, it is not sufficient to sustain the charge of suffering persons to assemble and engage in drunkenness, in the absence of evidence to the effect that any one of such persons coming from defendant's house was ever seen drunk on his premises, or ever seen drunk when leaving his premises. Indeed, it would seem that, if defendant actually permitted persons to assemble on his premises and indulge in drunkenness and disorder to the annoyance of people passing and repassing, there could be found one of those passing or repassing who would be able to say that he had seen such drunkenness, or had heard such disorder. single witness so testified.

Not a

A mere intimation, or even a threat to prosecute, will not, in all cases, avoid a contract made by a defaulter for the purpose of making reparation to the person injured by his misdoing, if there is no agreement not to prosecute.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 633-653; Dec. Dig. § 128.*]

Appeal from Circuit Court, Marshall County.

Action by William Sowards against Mary S. Higgins and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Shemwell & Reeder, of Benton, for appellants. Lovett & Fisher, of Benton, for appellee.

HANNAH, J. R. L. Wade was local agent for a number of fire assurance companies in the town of Benton. He failed to make prompt settlement of his accounts with the companies which he represented. William Sowards, state agent for one of the companies, acting for his own and for the other companies interested, made a settlement with Wade. The agency was sold, and after applying upon Wade's indebtedness to the companies the sum received therefor, he still owed them $365. In payment thereof, he executed a note payable to Sowards. F. A.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes