Lewis v. Creasey Corporation

CourtCourt of Appeals of Kentucky
Writing for the CourtTHOMAS, J.
Citation248 S.W. 1046,198 Ky. 409
PartiesLEWIS, BANKING COM'R, v. CREASEY CORPORATION.
Decision Date23 March 1923

248 S.W. 1046

198 Ky. 409

LEWIS, BANKING COM'R,
v.

CREASEY CORPORATION.

Court of Appeals of Kentucky.

March 23, 1923


Appeal from Circuit Court, Franklin County.

Suit by the Creasey Corporation against James P. Lewis, Banking Commissioner. Judgment for plaintiff, and defendant appeals. Affirmed. [248 S.W. 1047]

Chas. I. Dawson, Atty. Gen., and Martin T. Kelly, Asst. Atty. Gen., for appellant.

J. P. Hobson, of Frankfort, and Woodward & Warfield, of Louisville, for appellee.

THOMAS, J.

Appellee and plaintiff below, the Creasey Corporation, was organized under the laws of Delaware, with an authorized capital of $3,000,000, and its business is the operation of wholesale grocery houses in the different states of the Union wherein it does business. One of its methods of procuring customers is that of selling to retail dealers what it denominates as a "service contract," for which it charges $300, and in consideration therefor it obligates itself to the purchaser of the contract to furnish him groceries for his store for a period of 20 years at only 5 per cent. increase of the original costs to plaintiff, plus the actual necessary expense of conducting the business, subject, however, to certain enumerated discounts for the payment of cash within a limited time after the furnishing of the goods. It is also agreed in the contract that the customer may at all times during its life be entitled to a standing credit with the company for the $300 he paid. Provisions for transferring the contract are contained in it, and perhaps some other minor matters not pertinent to the question involved. Upon the enactment of chapter 125, Acts of 1920, page 582, commonly known as "The Kentucky Blue Sky Law," and which is now sections 883e1 to 883e26, both inclusive, of the present Kentucky Statutes, plaintiff, as it claims out of abundant caution, complied with the provisions of that act, and obtained permission from the State Banking Commissioner, whom the act appoints to enforce and administer its provisions, the right and privilege to sell such service contracts in this commonwealth. In October 1922, it received notice from the present Banking Commissioner, the appellant and defendant below, James P. Lewis, to appear before him in his office at Frankfort, to show cause why its right to sell such contracts should not be revoked. The matter pended for a while and in December following the right was suspended by defendant, and this suit was filed by plaintiff against him in the Franklin circuit court to enjoin him from prosecuting plaintiff for failure to comply with the act and from otherwise interfering with its right to continue to sell such contracts in Kentucky. Upon a hearing of the motion the circuit judge granted the injunction which Chief Justice Hurt, with three other members of this court, declined to dissolve on a motion made before him for that purpose. The case was then finally heard by the circuit court upon affidavits and exhibits filed therewith, pursuant to agreement between the parties, and the temporary injunction was perpetuated, and this appeal by the Commissioner challenges the correctness of that judgment.

The right of the Commissioner to interfere with the business of plaintiff in the respects mentioned or to prosecute it for a failure to comply with the terms of the act is denied upon the ground that its terms do not include or apply to the character of contract involved, which proposition is denied by defendant, and that is the sole question for determination.

Before taking up the concrete question, we deem it appropriate to say that it is the contention of the Commissioner, and which plaintiff denies, that the character of contract involved is a fraudulent one, or at least it possesses potentialities for the perpetration of fraud, and that a number of plaintiff's customers have been actually defrauded, and that the whole scheme is bottomed upon unsound financial business principles. With some of the affidavits filed as evidence on behalf of plaintiff upon that issue, 117 letters from the holders of such contracts in Kentucky were filed, and with defendants affidavit about 52 letters from other customers were also filed, but none of those letters was brought here with the record. If, therefore, that issue of fact, which is strongly asserted by defendant and with equal positiveness denied by plaintiff, were pertinent and material to the determination of the case, we would be compelled to affirm the judgment as to that issue under the well-known rule of practice that, in the absence of the evidence heard by the...

To continue reading

Request your trial
22 practice notes
  • White House Vigil for Era Committee v. Clark, No. 84-5271
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 Abril 1984
    ...v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198-99, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Lewis v. Creasey Corp., 198 Ky. 409, 413, 248 S.W. 1046, 1048 47 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 23 Aug. 1983). The district court originally set 2......
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • 9 Febrero 1962
    ...in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. R. Co., 144 Ky.......
  • Heleringer v. Brown, No. 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 7 Mayo 2003
    ...in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. Ry. Co., 144 Ky......
  • Heleringer v. Brown III, 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Mayo 2003
    ...in enacting the statute Page 6 and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R.R. Co., 1......
  • Request a trial to view additional results
22 cases
  • White House Vigil for Era Committee v. Clark, No. 84-5271
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 Abril 1984
    ...v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198-99, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Lewis v. Creasey Corp., 198 Ky. 409, 413, 248 S.W. 1046, 1048 47 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 23 Aug. 1983). The district court originally set 2......
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • 9 Febrero 1962
    ...in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. R. Co., 144 Ky.......
  • Heleringer v. Brown, No. 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 7 Mayo 2003
    ...in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. Ry. Co., 144 Ky......
  • Heleringer v. Brown III, 2003-SC-0327-TG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 19 Mayo 2003
    ...in enacting the statute Page 6 and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R.R. Co., 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT