Burley Tob. Growers' Co-Op. Assn. v. Devine

• Decision Date: 17 December 1926
• Citation: 217 Ky. 320
• Court: Supreme Court of Kentucky
• Parties: Burley Tobacco Growers' Co-Operative Association v. Devine, et al.

217 Ky. 320

Burley Tobacco Growers' Co-Operative Association v.Devine, et al.

Court of Appeals of Kentucky.

Decided December 17, 1926.

1.Trial — Case Involving Only Injunctive Relief Held Erroneously Transferred to Common-Law Docket.— Where action by co-operative association is merely for injunctive relief, proper practice is to order an issue out of chancery and submit to jury only questions of fact, with directions to answer each question separately, and transferring case to common-law docket was error.

2.Appeal and Error — Jury's Verdict on Question of Fraud in Case Involving Only Injunctive Relief is Not Conclusive.— Question of fraud in case involving only injunctive relief is not legal issue as to which verdict of jury is conclusive, unless flagrantly against evidence.

3.Agriculture — Agreement for Raising Tobacco by Child of Member of Growers' Association Held Device to Nullify Member's Agreement with Association.— Agreement between landowner and daughter of member of tobacco growers' association, whereby daughter raised tobacco, using father's equipment, held merely a device to nullify member's agreement with association.

4.Equity — Equity Regards Substance, Not Form.— Court of equity regards substance, and not form.

5.Agriculture — Member of Tobacco Growers' Association May Not Escape Liability by Raising Crop in Name of Another.— Member of tobacco growers' association may stop raising tobacco, but he must act in good faith, and will not be permitted to escape liability to association by merely raising tobacco in name of some one else.

Appeal from Boyle Circuit Court.

ROBERT H. HAYS, CHENAULT HUGUELY and C.C. BAGBY for appellant.

HENRY JACKSON and M.C. MINOR for appellees.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Reversing.

This is an action by the Burley Tobacco Growers' Co-operative Association against Andrew Devine, a member of the association, and his daughter, Bee Devine, to enjoin the sale and delivery to anyone other than the association of 5,000 pounds of tobacco raised in the year 1925 on the farm of F. Fox Caldwell.The petition proceeds on the theory that the tobacco was produced by and for Andrew Devine under an agreement made in the name of his daughter for his sole use and benefit, and that his daughter had no interest in the tobacco.The defense was that the contract between Miss Devine and Mr. Caldwell was made in good faith and that she and not her father was the owner of the tobacco.The Boyle circuit court refused to grant a temporary injunction, but on application to Judge Sampson, a member of this court, the Boyle circuit court was directed to grant a temporary injunction, and this order was concurred in by all the judges of this court.

When the cause came on for trial on its merits Miss Devine moved the court to transfer the case to the ordinary docket for a trial of the following issues, to-wit: (1) Whether the tobacco was raised by and for Andrew Devine, or was raised for Bee Devine.(2) Whether in the agreement with Mr. Caldwell Andrew Devine or Bee Devine was the real party in interest.(3) Whether the contract was made in good faith, or was fraudulent and the tobacco was in truth raised for Andrew Devine and that Bee Devine had no interest therein.Evidence was heard and the issues were submitted to the jury by the following instruction:

"If you believe from the evidence in this case that the contract introduced in the evidence in the name of the said Bee Devine and Fox Caldwell, for the production of tobacco, was in good faith and the tobacco produced was in good faith that of Bee Devine, and that it was not made and entered into for a fraudulent purpose of avoiding Andrew Devine's contract with the Burley Pool, and that Andrew Devine had no interest in the tobacco and no control over it except as the agent of Bee Devine, you should find for Bee Devine.Otherwise you should find for the plaintiff, Burley Tobacco Growers' Co-operative Association.

"If you find for Bee Devine, you will say in your verdict, `We, the jury, find for Bee Devine.'

"If you find for the Burley Tobacco Growers' Co-operative Association, you will say in your verdict, `We, the jury, find for the Burley Tobacco Growers' Co-operative Association.'"

The jury found for Bee Devine.Thereupon the chancellor, after consideration of the testimony, verdict of the jury and the whole record, refused to grant either a temporary or permanent injunction, and adjudged that the petition be dismissed.The association appeals and its motion, upon consideration by the whole court, to continue the injunction in force pending the appeal, was sustained.

The only witnesses heard by the jury were Andrew Devine and Miss Devine, who testified orally, and F. Fox Caldwell who testified by deposition.Briefly stated Andrew Devine's testimony is as follows: He owned a farm of 64 acres and was engaged in the dairy business.He had been raising tobacco off and on for 30 years.He was a member of the burley pool and signed its contract in 1921.He raised a crop of tobacco that year on Mr. Caldwell's place and delivered it to the pool.He raised another crop in the year 1922 on Mr. Caldwell's place but disposed of it over the loose leaf floor.In 1923he raised another crop, which he delivered to the pool.He raised another crop in 1924, which he did not deliver to the pool, but sold it on the loose leaf floor.The association filed a suit against him for the nondelivery of the 1922 and 1924 crops, and he paid the damages and costs.After that he announced to Mr. Caldwell that he was not going to grow any more tobacco.When he mentioned that fact at home his daughter said: "Father, let me grow that crop of tobacco."She said: "You see Mr. Caldwell for me.Would you let me have your barn and teams and tools and sticks when you are not using them, the same as anybody else?"Devine said, "Yes, do you think you could handle it?"She said, "Yes."Her mother spoke up and said, "You are not going to grow tobacco and work for the railroad?"Her daughter replied, "Mother, I will come home and stay with you during the tobacco season," and she did.In explaining the situation to Mr. Caldwell he said, "Yes, I will let her grow it."Mr. Caldwell drew up the contract for two years and his daughter signed it.His daughter was not present while he and Mr. Caldwell were talking.Prior to that time he had raised tobacco on Mr. Caldwell's land for two years and had superintended those crops.After the contract was made in his daughter's name, he looked after and superintended the planting of the bed.He used his own setter, which he had at home.He used 100 yards of canvas, which he had and bought 200 yards more for his daughter.She made it and paid for it.In setting out the plants he used his own setter part of the time and he used the team of a man by the name of Field part of the time.He was there and looked after the setting "a little."At that time his daughter was working for the railroad in Somerset.His plow turned the tobacco.His team pulled the plow.The tobacco was double-cut with a disc harrow, which he owned and his team pulled the harrow.One day John Merricks cut a portion of the tobacco and he paid him for it out of his own money.The tobacco was hoed by two colored men and he paid them out of his own pocket.The tobacco was suckered by the same men.From the time the tobacco was set until the tobacco was cut his daughter was never in the bed.He had five or six hands engaged in cutting and housing the tobacco.The tobacco was housed on his place and in his barn.His sticks were used in hanging it up.The tobacco was hauled from Caldwell's to his farm by his wagons and by a hired wagon.His team and the team belonging to a man by the name of Steele were used in hauling it.He reckoned he looked after the opening, closing and ventilating of the barn while the tobacco was being cured.The tobacco was stripped by a negro and by a white fellow that lived on his place.He was sometimes around the barn while it was being stripped.He was there part of the time when the tobacco was bulked.His daughter had been working for the Southern Railway Company as stenographer for six or seven years.His daughter got a leave of absence during the summer of 1925 and came home about the first of June.She stayed about three months.While there she helped with the cooking and general housework.Mrs. Devine was not extra well then.The only part that his daughter took in growing the tobacco was to help do all the work at the house and give one regular hand on his place his breakfast and dinner.Prior to that time his daughter had never had any experience in growing tobacco.She never owned any land, teams, barns, implements or canvas.His daughter had never paid him for the use of the teams, tools and implements which he furnished.Under the arrangements with Mr. Caldwell he was to get two-fifths and his daughter three-fifths.On cross-examination he testified as follows: He had satisfactory reasons for not wanting to raise any more tobacco.When he dumped his tobacco he reported to the pool and offered to pay them.The pool then sued him and received the same amount besides making him pay the costs.He sold because he could not raise the tobacco without getting pay for it.He agreed to let his teams be used by his daughter when he could spare them.His daughter was at home when she signed the contract.The reason she came home was to be there during the busy part of the tobacco season.He did not know of any reason why his daughter could not make the contract, or of any reason why he should not let her have the barn that was already there.His daughter had a settlement with him for money that he had paid out along the first of June.She paid him for the tobacco canvas, for the setting of the...