Mason & Ford Co. v. Main Jellico Mountain Coal Co.

• Decision Date: 13 October 1888
• Citation: 9 S.W. 391,87 Ky. 467
• Parties: MASON & FORD CO. v. MAIN JELLICO MOUNTAIN COAL CO.
• Court: Kentucky Court of Appeals

9 S.W. 391

87 Ky. 467

MASON & FORD CO. v. MAIN JELLICO MOUNTAIN COAL CO.

Court of Appeals of Kentucky.

October 13, 1888

Appeal from Louisville law and equity court.

Wm Lindsay, and Brown, Humphrey & Davie, for appellant.

Hargis & Eastin, for appellee.

LEWIS C.J.

This appeal is from a judgment pursuant to the verdict of a jury rendered under a peremptory instruction in three consolidated actions instituted by appellant against appellee. The first is an action on two promissory notes; the second, on an open account for labor and services performed under a contract between the parties dated June 30, 1885,--the amount sued for being the balance left after deducting, besides other credits, the two notes mentioned that were given in part payment of the account; and the third, upon an open account for like labor and services under a contract dated May 1 1886. The defenses set up and relied on in the answers of appellee, besides a general denial of the correctness of the accounts, are (1) a special plea of non est factum (2) alleged fraudulent collusion between the person at the time its president, and appellant, in making the contracts; and (3) the illegality of the contracts. There was evidence introduced which conduced to prove the alleged services were rendered by "Mason & Ford Company," and accepted and enjoyed by the "Main Jellico Mountain Coal Company," and that the contracts were made by the president of the latter in good faith, and with the knowledge and assent of its directors and stockholders. Consequently the only apparent ground for the peremptory instruction to the jury to find for the defendant is the supposed illegality of the two contracts upon which the plaintiff based its right to recover. By those contracts, which do not differ substantially from each other except as to the mode of determining the amount of wages to be paid, Mason & Ford Company, claiming to be lessee of the Kentucky penitentiary in virtue of a contract made April 27, 1885, with the commonwealth, through the commissioners of the sinking fund, agreed, for the consideration stated therein, to hire and furnish, for specified periods of time, a certain number of able-bodied convict men from the penitentiary, to labor in the coal mines of the Main Jellico Mountain Coal Company, situated in Whitley county; and, without cost to the latter, to guard and control the convicts while inside as well as outside the mines, assume all risk of their escape, and to maintain, care for, and support them, erecting buildings necessary for the purpose. By the contract of April 27, 1885, the commonwealth of Kentucky, in terms, let and hired to Mason & Ford Company the labor of the convicts who were then or might be in the penitentiary, for the period of four years; and agreed the lessee might employ all the males able to perform such labor, except those convicted of certain enumerated crimes, and such as were then employed upon the branch penitentiary, "upon public works in Kentucky, such as the construction and improvement of railroads, canals, water-ways, levees, and mining." Upon the condition, however, that whenever there should be provided sufficient rooms and accommodations for them within the walls of the penitentiary at Frankfort, or any branch penitentiary thereafter erected, the commissioners of the sinking fund might require the return to the penitentiary of all convicts employed outside, upon giving six months' notice to the contractors. On its part the company agreed to pay into the treasury, quarterly, a stipulated net sum; and to acquit the commonwealth of all expense on account of officers, guards, and inspectors of the penitentiary; to provide for the convicts as comfortably, in sickness and in health, as might be consistent with good discipline; and to faithfully conform to all rules and regulations prescribed by the commissioners of the sinking fund respecting the labor, diet, clothing, care, discipline, and safe-keeping of the convicts. For the...