150 Ky. 473 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing.
Tbis litigation grew out of certain transactions between appellants, Carsey & Co., and the firm of Swan & James, composed of the appellees, J. B. Swan and Gr. C. James. It appears from' the record that the Planters
The warehouse and prizer’s fees are deducted after the sale of the tobacco and the net proceeds paid the farmer. By the rules of the Planters Protective Association, the prizer is not permitted to make advances to farmers on their tobacco, but money may be advanced the latter by the various association warehouses, after the delivery of the tobacco to the prizer, and it seems to be also permissible for the warehouses to advance small sums to the farmers, even before the tobacco is delivered to the prizer.
Such advancements as are received by the farmers are made by the warehouse companies through the prizers; the farmer being required to execute his note for the amount advanced him and therein pledge his tobacco for its payment and agree that the tobacco shall be shipped to and sold by the warehouse company making the advancement. The prizer, through whom these advances are made, is required to sign or endorse and become bound on the note given by the farmer for the money advanced him by the warehouse company. In addition, the prizer obtains for the farmer the moneys advanced him by making a draft upon the warehouse company therefor, payable to the farmer and the draft is accepted and paid by the warehouse company upon its presentation, accompanied by the farmer’s note, signed or endorsed by the prizer.
The appellee, J. B. Swan, had a contract with the Planters Protective Association to prize, at Lynn Grove, Kentucky, during the year 1912, such tobacco grown in the year 1911, as might be taken to him by the farmers of that vicinity. He took G. C. James in with him as a partner and agreed to pay him for his services one-half the fees earned by the firm for the prizing of tobacco. The firm received but little, tobacco for prizing, but busied themselves in soliciting custom and securing advances for various farmers upon their tobacco. By>
After these advances were made and before any of the tobacco upon which Carsey & Company had advanced these moneys, had been prized by Swan & James, or shipped to Carsey & Company, Swan discovered that James was dishonest and he thereupon dismissed him as a partner, following which the firm of Swan & James was sued in this action upon the several notes which had been executed for various moneys advanced farmers by Carsey & Company; the firm name of Swan & James appearing on each of these notes as obligors.
Swan & James filed separate answers; that of the former traversing the averments of the petition and pleading non est factum; and that of the latter confessing the allegations of the petition. On the hearing, a trial by jury having been waived, judgment was rendered in appellants’ behalf against Gr; C. James for the aggregate amount of the notes sued on, but their petition was dismissed as to the appellee, Swan, of which, and the refusal of the circuit court to grant them a new trial, they complain; hence this appeal.
The judgment of the trial court, as shown by its separate conclusions of law and of fact, was based upon the ground that the firm of Swan & James was a surety on the notes sued on and that as the firm name was signed to the notes in that capacity by the wife of James, under mere verbal authority from James, section 482, Kentucky Statutes, relieved the firm of any liability as surety. That section provides:
“No person shall be bound as the surety of another by the act of an agent, unless the authority of the agent is in writing, signed' by the principal, or if .the principal do not write his name, then by his sign or mark made in the presence of at least one credible attesting witness.”
We think the court erred in reaching the conclusion -that the firm of Swan & James was a mere surety in the •notes. It is apparent from the evidence that under the
Appellants cannot, however, recover of appellee the fee claimed for services performed by their attorney in bringing this action, although the notes sued on contain an agreement to that effect, and such a fee is recoverable under the laws of the State -of Tennessee. We have repeatedly held that a provision in a note, as to the payment of an attorney’s fee for bringing suit thereon is in the nature of a penalty, against public policy, and not enforcible in this jurisdiction. Rilling v. Thompson, 12 Bush, 310; Thomasson v. Townsend, 10 Bush, 114; Gaar v. Lou. Banking Co., 11 Bush, 188. Nor can there be any recovery by appellants of the warehouse- fees claimed, as the tobacco was not shipped to or sold by them.
For the reasons indicated, the judgment is reversed as to the appellee, Swan, and cause remanded for a new trial consistent with the opinion.