163 S.W.2d 466 (Ky.App. 1942), Barker v. Stearns Coal & Lumber Co.

CourtCourt of Appeals of Kentucky
Writing for the CourtSTANLEY, Commissioner.
Citation163 S.W.2d 466,291 Ky. 184
Docket Number.
Date16 June 1942
PartiesBARKER v. STEARNS COAL & LUMBER CO.

Page 466

163 S.W.2d 466 (Ky.App. 1942)

291 Ky. 184

BARKER

v.

STEARNS COAL & LUMBER CO.

Court of Appeals of Kentucky

June 16, 1942

Appeal from Circuit Court, McCreary County; Flem D. Sampson, Judge.

Action by C. M. Barker, doing business as Citizens Milling Company, against the Stearns Coal & Lumber Company, to recover the amount of scrip issued by defendant to its employees and acquired by plaintiff. Judgment was entered for plaintiff for the amount of a verdict directed by the court, and the petition was dismissed to the extent that it sought to recover more. From the judgment, plaintiff appeals and defendant cross-appeals.

Judgment reversed on direct appeal and affirmed on cross-appeal.

Page 467

Kennedy & Kennedy, of Somerset, for appellant.

H. C. Gillis, of Williamsburg, for appellee.

STANLEY, Commissioner.

C. M. Barker, doing business as Citizens Milling Company, at Somerset, acquired $18,000 of scrip issued by the Stearns Coal & Lumber Company. These tokens were redeemable only in merchandise equivalent in value to the amounts indicated by numbers stamped on them. They were also marked as non-transferable. Barker demanded payment of the scrip in cash on a regular payday of the company but it was refused and he sued to recover the aggregate value. His petition was dismissed on demurrer. We reversed a judgment on the ground that Chapter 44, Acts of 1932, published as Section 4758b-2, Statutes, under which the scrip had been issued, was unconstitutional. Barker v. Stearns Coal & Lumber Company, 287 Ky. 340, 152 S.W.2d 953.

Upon the return of the case to the trial court the defendant answered. The first paragraph of the answer was a traverse. The second paragraph alleged that the scrip had been issued to the defendant's employees for wages earned and unearned under the Act of 1932, and, since that was void, the tokens and promises represented by them were likewise void. The third paragraph pleaded that the plaintiff had not complied with the terms of Section 4758b-1, of the Statutes, which is an Act of 1924, separate and distinct from the 1932 Act, in that he nor anyone else had kept a record showing the names of the persons from whom the scrip was acquired, the amounts paid therefor, and other information, nor presented same to the defendant when payment was demanded as is required by that statute. It pleaded that the observance of these terms were and are conditions precedent to the right to require redemption of the scrip in cash and to the maintenance of the action, and that the failure of the plaintiff to comply constituted a complete defense. Paragraph four of the answer alleged that "a large amount of the scrip sued on by the plaintiff herein was issued by the defendant to its employees as a medium of credit for unearned wages, or in anticipation that labor would be performed thereafter, or upon the credit standing and rating of employees to whom same was issued, and upon the faith and confidence of the defendant in the integrity and ability of such employees to pay, or for other reasons, and not as credit for, or in payment of, wages earned or labor performed; and a large part of said scrip was issued in payment for mine timbers, produce and other commodities purchased by the defendant, and in payment

Page 468

of other obligations of the defendant, and all such scrip was issued and accepted upon the conditions that same was non-transferable and payable in merchandise only to the employees or other persons to whom same was issued, and such scrip was, and is, non-transferable and redeemable only in merchandise, and plaintiff has acquired no right, title or interest therein and has no cause of action thereon and the defendant is under no obligation to redeem any of said scrip so issued from the plaintiff, and the defendant is not now, and at no time has been, under any obligation to redeem such scrip except in merchandise from the employees or other persons to whom same was issued."

A demurrer was sustained to the second paragraph of the answer. The court also sustained the plaintiff's motion that the defendant be required to make the allegations of the fourth paragraph more definite and specific in stated particulars. When the defendant had responded that it was physically impossible to comply with the order of the court and that it was, therefore, forced to decline to do so, on plaintiff's motion paragraph four of the answer was stricken.

The reply admitted the plaintiff had not kept the records or presented the verified statement stipulated by the 1924 Act. Section 4758b-1 of the Statutes. In avoidance of the defenses it pleaded that the company had waived the...

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35 practice notes
  • 47 S.W.3d 335 (Ky.App. 2001), 2000-CA-000276, Conseco Finance Servicing Corp. v. Wilder
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 18 Mayo 2001
    ...(citations omitted). [29] Greathouse v. Shreve, Ky., 891 S.W.2d 387, 390 (1995) (quoting Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). [30] Valley Construction Company, Inc. v. Perry Host Management Company, Inc., supra. [31] Greathouse v. Shreve, supra.......
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 26 Octubre 2012
    ...demanded or insisted upon." Weinberg v. Gharai, 338 S.W.3d 307, 314 (Ky. App. 2011) (citing Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). Unequivocally, the appellants knew from the onset of this litigation that they had the option, if it applied, t......
  • 221 So.3d 909 (La.App. 5 Cir. 2016), 16-CA-7, Ferrand v. Ferrand
    • United States
    • Louisiana Court of Appeal of Louisiana (US)
    • 31 Agosto 2016
    ...891 S.W.2d 387, 390, 42 01 Ky.L.Summary 19 (Ky.1995) (quoting Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (Ky. 1942)). No formal or written waiver is required, however " statements and supporting circumstances must be equivalent to......
  • Sharp v. Stevenson, 031010 TNCIV, W2009-00096-COA-R3-CV
    • United States
    • Tennessee Court of Appeals of Tennessee
    • 10 Marzo 2010
    ...advantage which the party at his option might have demanded or insisted upon." Id. (quoting Barker v. Stearns Coal & Lumber Co., 163 S.W.2d 466, 470 (1942))(emphasis added). In addressing the issue of evidence required for waiver, the KY court stated: "waiver requires proof of......
  • Request a trial to view additional results
35 cases
  • 47 S.W.3d 335 (Ky.App. 2001), 2000-CA-000276, Conseco Finance Servicing Corp. v. Wilder
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 18 Mayo 2001
    ...(citations omitted). [29] Greathouse v. Shreve, Ky., 891 S.W.2d 387, 390 (1995) (quoting Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). [30] Valley Construction Company, Inc. v. Perry Host Management Company, Inc., supra. [31] Greathouse v. Shreve, supra.......
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 26 Octubre 2012
    ...demanded or insisted upon." Weinberg v. Gharai, 338 S.W.3d 307, 314 (Ky. App. 2011) (citing Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). Unequivocally, the appellants knew from the onset of this litigation that they had the option, if it applied, t......
  • 221 So.3d 909 (La.App. 5 Cir. 2016), 16-CA-7, Ferrand v. Ferrand
    • United States
    • Louisiana Court of Appeal of Louisiana (US)
    • 31 Agosto 2016
    ...891 S.W.2d 387, 390, 42 01 Ky.L.Summary 19 (Ky.1995) (quoting Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (Ky. 1942)). No formal or written waiver is required, however " statements and supporting circumstances must be equivalent to......
  • Sharp v. Stevenson, 031010 TNCIV, W2009-00096-COA-R3-CV
    • United States
    • Tennessee Court of Appeals of Tennessee
    • 10 Marzo 2010
    ...advantage which the party at his option might have demanded or insisted upon." Id. (quoting Barker v. Stearns Coal & Lumber Co., 163 S.W.2d 466, 470 (1942))(emphasis added). In addressing the issue of evidence required for waiver, the KY court stated: "waiver requires proof of......
  • Request a trial to view additional results

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