Wickliffe's Ex'rs v. Smith

• Decision Date: 16 October 1928
• Citation: 10 S.W.2d 291,225 Ky. 796
• Parties: WICKLIFFE'S EX'RS v. SMITH.
• Court: Kentucky Court of Appeals

10 S.W.2d 291

225 Ky. 796

WICKLIFFE'S EX'RS v. SMITH.

Court of Appeals of Kentucky

October 16, 1928

Appeal from Circuit Court, Muhlenberg County.

Action by J. A. Smith, for the use and benefit of Muhlenberg County and the Department of State Road and Highways, against W. A Wickliffe's executors. Judgment for plaintiffs, and defendants appeal. Affirmed.

Eaves &amp Sandidge, of Greenville, for appellants.

Wilkins & Sparks, of Greenville, for appellee.

HOBSON C.

In the year 1919 a citizens' meeting was held at Central City to secure the location in Muhlenberg county of an important public highway, and to this end a committee was appointed to co-operate with the fiscal court in securing the road, the purpose being to get up subscriptions to aid the fiscal court in raising the money necessary for this purpose. At that meeting five gentlemen were appointed as a committee to this end. Later the fiscal court made an order approving the appointment of the committee, pledging it its support and co-operation, and appointing the same persons "to act in connection with the fiscal court to construct said highway and in the expenditure of all funds available for the construction of said road." Among the subscriptions obtained was one from W. A. Wickliffe in these words:

"$500.00. Greenville, Ky. July 28, 1919.

For and in consideration of the benefits which will be derived by me or us from the construction of a metal highway through Muhlenberg county, to be known as the Central Highway, beginning at the Hopkins county line at Clark's Ferry bridge on Pond river, and running thence through Depoy, Greenville, Powderly, Central City, South Carrolton, and Bremen to the McLean county line on the Greenville and Calhoun road, I or we promise to pay to the order of First National Bank of Greenville, Ky. to aid in the construction of said road, five hundred and no/100 dollars. I, or we, agree to pay said sum to said bank in two equal installments, without interest, except from maturity. The first installment to be due and payable on February, 1920, and the second installment to be due and payable on August 1, 1920. Said sums, when so paid to said bank, shall be held by it subject to, and paid by it on, the order of J. A. Smith, W. G. Duncan, Jr., D. F. Mercer, Edgar Nicholls, and Harry Gatton, commissioners, or their successors, and upon such payment the liability of said bank growing out of its collection of said sum shall cease and determine. All subscribers to this fund shall pay cash or execute an agreement the same as this, except as to date and amounts.

[Signed] W. A. Wickliffe.

Witness: -----.

P. O. -----."

The note was not paid at maturity; the bank delivered the note to the committee, with this indorsement on it:

"The within note is assigned to the order of -----, without recourse either in law or equity, this ----- day of -----, 192-.

First National Bank, Greenville, Ky.,

By -----."

Thereupon the committee, the county of Muhlenberg, and the department of public roads and highways of the state of Kentucky filed this action to recover on the note. The defendants, who were the executors of Wickliffe, demurred to the petition on the ground that the plaintiffs were not the proper persons to sue. The demurrer was overruled. The defendants filed answer. The court sustained the plaintiff's demurrer to the answer, and gave judgment for the plaintiffs. The defendants appeal.

The demurrer to the petition was properly overruled. Section 18 of the Civil Code of Practice provides that every action must be prosecuted in the name of the real party in interest, except as is provided in section 21, and by section 21 it is provided, among other things, that a person with whom or in whose name a contract is made for the benefit of another may prosecute the action in his own name. By the terms of the contract the money was to be paid to the bank, but the bank was to pay it out on the order of the committee. The bank was merely the custodian, to hold the money for the committee and to pay it out on its order. The committee was the real party in interest. The subscription was made in the interest of Muhlenberg county, and it, too, was joined as one of the plaintiffs. The action was therefore properly brought. Mutual Insurance Co. v. Hammond, 106 Ky. 386, 50 S.W. 545, 20 Ky. Law Rep. 1944; Gaines v. Hume, 215 Ky. 27, 284 S.W. 119.

The answer pleaded in substance that Wickliffe was the owner of two lots in Greenville, in front of which the road ran, that the road was not constructed by the highway commission through Greenville, and that the city had by ordinance required these streets reconstructed at the cost of the property owners, at a cost to him of about $1,200, and that the consideration of the contract had failed by reason of section 4356t8, Kentucky Statutes, which is in these words:

"When any primary road herein designated must pass through a city or town, the state highway commission is hereby empowered to enter into a contract with such city or town for the construction of such road if the road through the city or town is to be different from the road constructed outside of the city or town, but if the road is the same the cost thereof shall be paid as is the cost of other roads designated herein. In the event it is necessary to construct a road or street at a greater cost than is paid for construction of a like lineal mileage outside of the city or town, such city or town must pay the additional cost of construction, and the details shall be agreed upon between such city or town and

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