Hoskins Grocery Co. v. Creech Coal Co.

• Decision Date: 20 January 1933
• Citation: 247 Ky. 8,56 S.W.2d 555
• Parties: HOSKINS GROCERY CO. v. CREECH COAL CO.
• Court: Kentucky Court of Appeals

56 S.W.2d 555

247 Ky. 8

HOSKINS GROCERY CO. v. CREECH COAL CO.

Court of Appeals of Kentucky

January 20, 1933

Appeal from Circuit Court, Harlan County.

Action by Nancy Ellen Hoskins, doing business as the Hoskins Grocery Company, against the Creech Coal Company. Judgment for defendant, and plaintiff appeals.

Reversed with directions.

Pope &amp Baker and J. D. Pope, all of Harlan, for appellant.

B. M Lee, of Harlan, for appellee.

REES J.

Nancy Ellen Hoskins, doing business under the firm name and style of Hoskins Grocery Company, brought this action against the Creech Coal Company to recover $1,105, the amount of scrip or miner's orders, issued by the coal company to its employees which she had taken in at her store in payment for merchandise. She alleged in her petition that the defendant was engaged in the business of mining coal and employed more than 20 laborers; that from time to time it had issued to its laborers, as evidences of its indebtedness to them, scrip, or metal disks, ranging in value from 5 cents to $1, and that many of its laborers had sold, transferred, and delivered these metals disks to other individuals, firms, or persons, who in turn had sold, transferred, and delivered them to plaintiff in exchange for merchandise. She further alleged that she had paid for this scrip at its face value in merchandise and had purchased none of it from employees of the defendant; that on one of defendant's regular pay days she had presented to it scrip in the amount of $1,105 accompanied by a statement setting out the names of persons from whom she purchased the scrip, the dates when purchased, and amounts paid therefor in merchandise, together with the affidavit required by section 4758b-1 of the Kentucky Statutes.

The defendant filed an answer in two paragraphs. The first paragraph was a traverse, and in the second paragraph it alleged that under an agreement between it and its employees, the metal disks issued by it were redeemable only in merchandise, and that section 4758b-1 of the Kentucky Statutes violated the constitutional provision prohibiting the enactment of a law impairing the obligation of contracts.

A demurrer to paragraph 2 of the answer was sustained, and on the trial the court instructed the jury that if it believed from the evidence that plaintiff presented to the defendant the affidavit and statement referred to in her evidence it should find for the plaintiff, and if it did not so believe it should find for the defendant. The jury returned a verdict for the defendant, and the plaintiff has appealed.

It is plaintiff's contention that she was entitled to a peremptory instruction. The evidence shows without contradiction that all of the scrip was purchased from persons who were not employees of the Creech Coal Company and that it was presented for redemption on a regular pay day at the office of the company to Mr. R. W. Creech, its president and general manager. The appellant's husband, Edmus Hoskins, acted as her agent in presenting the scrip and demanding payment. He testified that he presented the scrip to Mr. Creech and informed him that he had a book containing the statement and affidavit required by the statute; that he handed the book to Mr. Creech, who glanced through it and then informed him that the company was not redeeming scrip in cash. His testimony is corroborated by the testimony of Parks Howard, who accompanied him to the office of the coal company. Mr. Creech testified that the scrip was presented to him and payment demanded and that he was handed a book purporting to contain the names of those from whom the scrip had been purchased but he did not remember whether or not any statement in regard to the affidavit was made. He admitted, however, that he merely glanced at the book and that he informed Mr.

Hoskins that the company was not redeeming its scrip in cash. The reason given for refusing to redeem the scrip was not a failure to present the statement and affidavit required by the statute, but the company took the position that it was not required to redeem it in cash. Two employees of the company who were in the office when Mr. Hoskins presented the scrip for redemption testified that they saw him present the book to Mr. Creech but heard no statement in regard to an affidavit. The evidence is uncontradicted, however, that the affidavit was in the book which was handed to Mr. Creech but, conceding for present purposes, that it was necessary where the scrip had been...