Holcomb v. Kentucky Union Co.

• Decision Date: 21 January 1936
• Citation: 90 S.W.2d 25,262 Ky. 192
• Parties: HOLCOMB v. KENTUCKY UNION CO.
• Court: Kentucky Court of Appeals

90 S.W.2d 25

262 Ky. 192

HOLCOMB v. KENTUCKY UNION CO.

Court of Appeals of Kentucky

January 21, 1936

Appeal from Circuit Court, Perry County.

Action by A.B. Holcomb against the Kentucky Union Company. The petition was dismissed, and plaintiff appeals.

Affirmed.

Napier & Eblen, of Hazard, for appellant.

Samuel M. Wilson, of Lexington, for appellee.

RICHARDSON Justice.

A.B Holcomb, a citizen and resident of Perry county, Ky. brought this action against the Kentucky Union Company, a corporation, which resided and had its principal office or chief place of business in Fayette county, Ky.

In his petition Holcomb sets up an oral contract with the Kentucky Union Company, wherein the latter proposed that if he would continue working for it until all litigation over its large tract of land terminated, it would furnish him rent free about 200 acres of land on Beehive creek, Perry county, Ky the acreage to be laid off in such manner as he desired to include the residence in which he resided and all out buildings, orchard, garden, and adjacent cleared land; that he accepted the proposition in September, 1919, and continued in its employment and occupied a certain 200 acres of its land until June 4, 1929, at which time it sold and conveyed all of its land, including the 200 acres, and thus disregarded its contract with him. In reliance upon this contract, he alleges, he erected between September, 1919, and June 4, 1929, lasting and valuable improvements on the 200 acres, enhancing its value $5,000. During this time it paid him compensation of $50 per month for the services performed by him under its contract, but the same were reasonably worth $150 a month. The total sum for his alleged services and the value of the improvements are fixed in his petition at $16,600, for which he asked a personal judgment against the Kentucky Union Company. He alleges that this contract was made, and to be performed, by him and the Kentucky Union Company in Perry county. The summons on his petition was served on the Kentucky Union Company in Fayette county.

Reserving all questions without entering its appearance and protesting against doing so, it filed a special demurrer to the jurisdiction of the court; pleaded that another action at law was pending in equity, having been transferred thereto, in the Perry circuit court, "between the same parties for the same alleged cause of action and that it was undisposed of." Still protesting against the jurisdiction of the court and declaring its purpose not to enter its appearance it filed a special plea to the jurisdiction of the court. Section 92, Civil Code of Practice. Its special plea states facts showing the contract sued on was verbal, invalid, and unenforceable against it; that the 200 acres of land described in the petition was a part of a large tract of land; and that Holcomb neither asserted, nor sought in his petition to enforce a lien on the 200 acres, and pleaded that if he had any cause of action on the facts stated in his petition, it arose "solely and exclusively by operation and construction of law and not upon any contract" between it and Holcomb "entered into at any time or place or to be performed at any time or place, either express or implied." It charged that his cause of action, if any he had, is transitory; the summons had been executed in Fayette county on its president who resided, and its chief office and place of business was in that county.

The trial court overruled the special demurrer, but later on a reconsideration sustained it and the plea in abatement. Holcomb declined to plead further and the petition was dismissed.

The question presented for decision must be determined on the facts stated in the petition and in the plea in abatement, in connection with sections 72 and 78, Civil Code of Practice.

Section 72 reads: "An action against a corporation which has an office or place of business in this State, or a chief officer or agent residing in this State, must be brought in the county in which such office or place of business is situated or in which such officer or agent resides; or, if it be upon a contract, in the above-named county, or in the county in which the contract is made or to be performed; or, if it be for a tort, in the first-named county, or the county in which the tort is committed."

Section 78 is in this language: "An action which is not required by the foregoing sections of this article to be brought in some other county may be brought in any county in which the defendant, or in which one of several defendants, who may be properly joined as such in the action, resides or is summoned."

In Holcomb's brief it is stated: "The question is whether or not the Perry circuit court is the proper venue for an action against a corporation of Fayette county under a contract entered into with that corporation by a Perry county citizen to be performed in Perry county." On this premise he insists that the cases of Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S.W. 1121, and City of Covington v. Limerick, 40 S.W. 254, 19 Ky. Law Rep. 330, are controlling. He contends further that:

"The rule is well established in this State that a verbal contract for the sale or transfer of land is unenforcible and invalid. The rule, however, is modified in cases where the grantee is placed in possession of the land by the grantor, and while there bona fidely claiming and holding the land as his, puts valuable permanent improvements thereon. In such case the grantor cannot recover the land until he places the grantee in statu quo. *** He must pay a reasonable price for such valuable and lasting improvements as were placed on the land by the grantee while in good faith relying upon his verbal contract." Crain v. Crain et al., 197 Ky. 813, 248 S.W. 176; Zanone v. Tashgian, 231 Ky. 454, 21 S.W.2d 825; Farley v. Stacey, 177 Ky. 109, 197 S.W. 636, 1 A.L.R. 1181; Ruehl v. Davidson's Ex'r, 237 Ky. 53, 34 S.W.2d 937; Dye Bros. v. Butler, 209 Ky. 199, 272 S.W. 426.

Holcomb was not in the possession of the 200 acres at the time this action was filed. He is not relying on...