Smith v. Robertson

• Decision Date: 27 April 1899
• Citation: 106 Ky. 472,50 S.W. 852
• Parties: SMITH v. ROBERTSON et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 852

106 Ky. 472

SMITH v. ROBERTSON et al. ^[1]

Court of Appeals of Kentucky.

April 27, 1899

Appeal from circuit court, Fayette county.

"To be officially reported."

Action by Samuel Smith against George L. and Eva M. Robertson to recover for the services of a stallion. Judgment for defendants, and plaintiff appeals. Affirmed.

Webb &amp Farrell, for appellant.

Geo Denny, Jr., for appellees.

GUFFY J.

It is substantially alleged in the petition in this action that in the year 1895 the plaintiff, Smith, was the owner of a stallion known as "Imported Deceiver," and that the defendants, George L. and Eva M. Robertson, were the owners of a chestnut mare, and that by an agreement between plaintiff and defendants said mare was bred to said stallion, and that by the terms of the said agreement defendants promised and agreed to pay plaintiff the sum of $150 for the services of said stallion, to be due and payable when said mare had a foal by said stallion; that upon the 3d of April, 1896, said mare produced a foal, the get of said stallion; and that the services of said stallion were worth the sum of $150, which sum the defendants promised to pay for a foal. The plaintiff claimed a lien upon said colt, and instituted this action to obtain a judgment against the defendants, and for an enforcement of their lien upon said colt. The first paragraph of the answer pleaded a defect of parties, alleged that the stallion Imported Deceiver was owned by Samuel Smith, S. C. Lyon, Nat Pettit, and others, unknown to the defendants, and that plaintiff, Smith, owned only one-eighth interest in said horse; hence they prayed that plaintiff's petition be dismissed. In the second paragraph it was pleaded, in substance, that, when said colt got by said stallion was foaled, defendants should have an option either to give the owners of said stallion one-half interest in said foal at weaning time, or pay to the owners the sum of $150, and that they determined, instead of paying the $150, to give said plaintiff and his associates one-half interest in said colt and so notified plaintiff about the 1st of May, 1896, and alleged that they were now willing and able to do so. In the third paragraph it is substantially alleged that the plaintiff nor any of his associates had paid any license fee in Jessamine county, where said stallion was during the season of 1895, and relied upon the statute in such cases made and provided in bar of plaintiff's right to recover. The court overruled the plaintiff's demurrer to the first and second paragraphs of the answer, but sustained the demurrer to the third paragraph. The reply may be treated as a traverse of the remaining paragraphs of the answer, and also showed a right of plaintiff to recover the $150 under an arrangement between himself and the other joint owners, providing the same could, in law, be collected. The rejoinder may be treated as a traverse of the reply. After the issues were fully made up, and proof taken, the court adjudged in favor of the defendants, and dismissed the petition of plaintiff, and from that judgment this appeal is prosecuted.

It is insisted for appellant that the burden of sustaining the agreement between the parties as to the option of defendants to give plaintiff one-half interest in the colt instead of paying $150 is upon the defendants, and that they have totally failed to sustain the defense by even a preponderance of the evidence. The question first to be disposed of is as to the correctness of the ruling of the court in sustaining the demurrer to the third paragraph of the defendant's answer; in other words, the main question for decision in this case is whether the owner of a stallion, who has not procured a license to stand same, can recover for the services of the stallion. It is not disputed but what the Kentucky Statutes require license to be paid by all persons who stand stallions for hire; and it is further provided by law that, if a person is engaged in such business without license, he is liable to a fine of not less than $50 nor more than $1,000. But it is suggested that the statute in question is a statute for revenue, and not for any other purpose, and that a contract for the services of an unlicensed stallion may nevertheless be collected, although a penalty is denounced against the keeper of such stallion if he stands the same without license. This question is discussed in Buckley v. Humason (Minn.) 16 Lawy. Rep. Ann. 423 note (s. c. 52 N.W. 385), in which the following from Mr. Benjamin is quoted with apparent approval: It is there stated: "First. That, where a contract is prohibited by statute, it is immaterial to inquire whether the statute was passed for revenue purposes only, or for any other object. Secondly. That, when the question is whether the contract has been prohibited by statute, it is material, in construing it, to ascertain whether the legislature had in view solely the security and collection of revenue, or had in view, in whole or in part, the protection of the public from fraud in contracts, or the promotion of some object of public policy. In the former case the inference is that the statute was not intended to prohibit contracts; in the latter that it was. Thirdly. That in seeking for the meaning of the lawgiver it is material also to inquire whether the penalty is imposed once for all on the offense for failing to comply with the requirements of the statute, or whether it is a recurring penalty repeated as often as the offending party may have dealings. In the latter case the statute is intended to prohibit contracting, and the contract is therefore void; but in the former case such is not the intention, and the contract will be enforced." Section 4201, c. 108, Ky. St., provides: "Any person who shall engage in any business, or sell or offer to sell any article on which a license is required before procuring a license, and paying the tax thereon as required by law, shall be deemed guilty of a misdemeanor, and on conviction be fined not less than fifty dollars nor more than one thousand dollars for each offense, unless otherwise specially provided." It will be seen from this statute that a person furnishing the services of an unlicensed stallion for hire or compensation would be liable to indictment, and subject to a fine for each offense. Each contract or service so rendered or performed would evidently be a separate offense, hence it seems that such action would bring the offending party within the rule announced above. In section 547, Bish. Cont., it is said: "And the rule is that, when the statute forbids a particular business generally, or to unlicensed persons, any contract made in such business by one not authorized, or made with the view of violating the statute, is void. Within this principle is the sale of goods to be used in the business from one who has knowledge of the proposed use." And in section 549 it is said: "The law, for convenience for adaptation to our infirmities, and, to...