Scott v. A. Arnold & Sons Transfer & Storage Co., Inc.

• Decision Date: 19 April 1938
• Parties: SCOTT v. A. ARNOLD & SONS TRANSFER & STORAGE CO., Inc.
• Court: Kentucky Court of Appeals

116 S.W.2d 296

273 Ky. 163

SCOTT v. A. ARNOLD & SONS TRANSFER & STORAGE CO., Inc.

Court of Appeals of Kentucky

April 19, 1938

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by H. J. Scott against A. Arnold & Sons Transfer & Storage Company, Inc., for the reasonable value of merchandise and articles stored with defendant and sold by it for storage charges. Judgment for the defendant, and plaintiff appeals.

Affirmed.

Joseph J. Kaplan, Grover G. Sales, and Frank A. Garlove, all of Louisville, for appellant.

W. S Heidenberg and Walter P. Lincoln, both of Louisville, for appellee.

CLAY Justice.

On December 16, 1931, H. J. Scott stored with A. Arnold & Sons Transfer & Storage Company, Inc., a quantity of household goods and agreed to pay storage thereon at the rate of $5 a month. He failed to pay the storage and about twenty months thereafter the storage company advertised the merchandise for sale and sold it for $4.74 in excess of the charges due thereon.

Some time later this action was brought by Scott against the storage company to recover the reasonable value of the merchandise and articles stored. Recovery was asked on the ground that the sale was invalid because of insufficient advertisement, and for the further reason that the storage company sold the merchandise without exhibiting the contents of the boxes, barrels, and cedar chest in which it was stored. In its answer the company denied many allegations of the petition, and pleaded compliance with section 4778, Kentucky Statutes, and other defensive matter which will hereafter be discussed. Plaintiff filed a reply which was afterwards withdrawn. A demurrer to paragraphs 1 and 2 of the answer to the amended petition was overruled, and the plaintiff having declined to plead further, his petition was dismissed. Plaintiff appeals.

Section 4778, Kentucky Statutes, reads as follows:

"Any property in a warehouse upon which the charges have not been paid for twelve months after the same have become due, unless otherwise provided by contract, the warehouseman may sell such property, or enough thereof to pay the charge, at public auction, at the warehouse or at the courthouse door of the county in which the warehouse is situated. Before any such sale shall be made, the warehouseman shall cause the sale of the property to be advertised for not less than twenty days before the day of the sale, by printed notices posted at the door of the court-house of the county, and in three or more public places in the county where the sale is to take place, and by having such notice published at least once a week for at least three weeks in a newspaper of general circulation in the county where the warehouse is situated. Such notice shall contain the day and place of sale, a description of the property to be sold, if known; if not, a description of the package in which it is contained, the amount of charges and the name and place of the residence of the owner, if known; and the warehouseman, at least ten days before the day of sale, shall mail to the owner a notice of the time and place of sale, with a description of the article to be sold and amount of charges."

The first question for consideration is, Whether the sale was properly advertised? There is no complaint that the printed notices were not properly posted, or that appellant was not notified of the time and place of the sale. The only ground of complaint is that the sale took place on August 22, 1933 and the notice of the sale was published on August 8, August 14, and August 21, 1933, which, it is claimed, was not a compliance with the statute. The argument is that the statute, being in derogation of the common law, should be strictly construed, and, when that is done, there is no escape from the conclusion that the language of the statute requiring that the notice be published "at least once a week for at least three weeks" means that the first...