111 Ky. 110 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
This suit was brought in the Garrard circuit court in the name of the 'Commonwealth of Kentucky and Elisa Jennings Lusk, as county superintendent of common schools of Ga-rrard county, Ky., plaintiffs, against Ginn & Go., publishers of school test-books, whose principal
“This covenant and bond this day entered into by and between Ginn & Co., a publisher of school text-books, and a dealer therein, desiring to have same adopted for use in the common schools of the Commonwealth of Kentucky, of the first part, and the Commonwealth of Kentucky, of the second part, acting through the ew officio members of the State board of education of Kentucky,
Wholesale Retail
Price. Price.
Montgomery’s Leading Facts of American History.........................$1 00 $1 00
“Now,. therefore, the party of the fiirst part hereby binds himself or itself to pay to the party of the second part ten thousand dollars ($10,000.00) as agreed liquidated damages -on the adoption of any or all of his^ said ■school text-books herein listed by any county of this State, on condition following, viz.: (1) That the retail price of any of said'books sold to the patrons or pupils, of any common school in any county.adopting same shall not exceed the lowest retail price now or hereafter fixed by said party of the first part for the sale of said textbooks in any State or section of the country.”
Other conditions were stated which should constitute a breach of the covenant, but which are not material to be here inserted. The bond continued: “This bond is executed in conformity with the requirements of sections 61 and 62 of the common-school law [Acts 1891-93, c. 260], and the undersigned principal and sure
It is alleged in the petition as amended that this bond was “'executed by the defendants in this action before the cx officio members of the State board of education of Kentucky, whose names are stated in the original petition.” The breach of the bond is alleged in this: That Ginn & Co. have, since its execution,1 and since the adoption thereof by the board of education of Garrard county, sold, and are now selling, said Montgomery’s Leading Facts of American History in other States or sections of country at less than one dollar per copy; “in or to the State of Indiana it was sold at 65 cents per copy, and said price is printed on the cover of the books;” and that said Ginn & Co. required and compelled local dealers in Garrard county to sell said text-books to the patrons and pupils of the Garrard county common schools at one dollar per copy, while in Indiana the same book is sold at only sixty-five cents. It is further alleged that the book mentioned is the same book in matter, paper, binding, typography, and general make-up as sold in Indiana and other sections of the country as before stated. The plaintiffs, alleging the breaches of the bond above set out, claim that they were entitled to the recovery of the agreed liquidated damages named in the bond, to be covered into the common-school fund of Garrard county, Ky. The circuit court sustained a demurrer to this petition. Plaintiffs failing to plead further, it was dismissed, with judgment for defendants’ costs.
Motions were made by the defendants, and sustained by the court, striking out certain allegations of the petition,
It is further argued by appellees that the petition does not state whether the sales of books are for the purpose of being used as text-books, or whether they were sold at retail or wholesale, it being argued that the covenant of the bond was that the book should not be sold1 in any other State or section of country at a greater price at retail than the price fixed for Kentucky. However, it will be observed that the wording of the bond sued on is to this effect: “This bond is executed in conformity with the requirements of sections 61 and 62 of the common-school law, and the undersigned principal and sureties agree and undertake that said principal shall comply with all the requirements of said sections with respect to the publishers or persons selling text-books adopted by any county in this State.” This we construe
Another questions raised by the motions to strike, and the demurrer, was, whether the $10,000 could be recovered by the superintendent of Garrard county without reference to • the specific damage that may be shown to have been suffered by the school patrons of that county on account of the acts alleged in the petition. Section- 4424 of ' Kentucky Statutes, in part, reads as follows: "'‘'Whenever any publisher or person selling textbooks, who desires to have his text-book adopted in the common schools in lan-y cou-nty in this State, shall file in the office of the superintendent of public instruction a sample copy of each of the text-books intended for adoption, together with the lowest retail list price at which the sam'e shall be sold to the patrons and pupils of any county in which the same may be adopted, and shall execute bond before the ex officio members of the State board of education in the sum of ten thousand1 ($10,000)-dollars, with goo-d security resident in- this State, it shall be the duty of said ex officio members of the said board of' education to accept and file said bond in the office of the superintendent of public instruction. . . . Within ten days after the acceptance and filing in his office the bond' herein, provided for, the superintendent of public instruction shall forward a certified copy thereof to each.
Another question presented in argument is, the bond, a copy of which is filed with the petition, shows that it was “examined and approved in accordance with section 62, Common School Law, October 20th, 1896. [Signed] W. J. Davidson, superintendent of public instruction. E. D. Guffy, assistant secretary of State.” By section 4377, Kentucky Statutes, the superintendent of public instruction, together with the secretary of State and attorney general, shall constitute the “State board of .education,” and by section 4379 'the superintendent is made its chairman, with power to call meetings of the hoard, of which all the members shall have timely notice-in writing. It appears that but two members of the board acted, if the assistant secretary of' State was authorized to act as a member of it. Under section 448, Kentucky Statutes, where an act is required to be done by three or more, when done by a majority of them, it will be deemed the act of all. Section 4541 Id., provides: “The secretary of State, with the assent of the governor, may appoint an assistant secretary, who1, in case of absence or indisposition of the principal, may do the business of his office in his name, and the secretary shall be' responsible for the acts of such assistant, who, before he acts under such appointment, must take the oath prescribed by the Constitution.” Thus, it will be seen, any official duty required of the secretary of State may be performed
Whole court sitting. Judge Burn am dissents, and Judges DuRelle and Hobson dissent from so much as holds that $10,000 may be recovered as liquidated damages.
Petition by appellee for rehearing and for modification of opinion, overruled.