Eagles v. Hafendorfer

| Ky. Ct. App. | Sep 23, 1924

Opinion of the Court by

Chief Justice Sampson—

Reversing.

This suit was commenced by H. B. Eagles as treasurer of Daviess county and the three commissioners composing the fiscal court of that county against Hafendorfer to recover of him upon three notes aggregating $500.00 which he executed to Eagles as a part of a fund to be raised by the county to induce the state and federal governments to locate and construct a highway from Louisville to Paducah, the same to be located through the neighborhood in which appellee’s farm was located. Appellee Hafendorfer admits the execution of the notes and that he has ^ot paid them, and defends the action against nim upon tlie grounds, (1) that there was no consideration for the notes, and second, that the highway was not located along the line indicated by those who solicited his subscription and that the consideration had failed. A general demurrer was filed to each paragraph of his answer and overruled by the court. The first paragraph of the answer averred that the note sued on was executed without consideration. This was a sufficient pleading standing alone. The general demurrer when applied to the first paragraph alone was properly overruled to it, but not so when the whole answer is considered together, as it must be. The second paragraph is much longer, but indefinite and rather hard to comprehend. We are, therefore, in some doubt as to whether it states a defense to the petition and whether the general demurrer to it should have been, sustained. After reciting- the purposes for which the notes were given, the building of the highway from Louisville to Paducah and the desire of certain citizens to obtain the location through their property in Daviess county and near the farm of appellee Hafendorfer, the answer avers “that prior to the execution of said note certain persons, being private citizens of Daviess and Henderson counties and interested in procuring the location of said highway in the western portion of Daviess county and the eastern portion of Henderson county along and upon a certain route, but having no authority to represent the state of Kentucky or the United States or Daviess county or Henderson county, approached this defendant and stated and represented to him that if he and other persons would donate certain sums for that purpose the authorities and officers in charge of the location of said highway ‘might be induced to locate’ same upon the line and route designated by said persons and that said proposed line and route of said highway would pass directly by and in front of a farm and tract of land owned by this defendant and upon which he then lived and now lives.”

The answer then avers that the road was not constructed along the lines indicated by the solicitors of the donation and that the road located was no benefit to Hafendorfer or his farm; that the note was executed entirely without consideration and only as evidence of a gift and donation in aid of the location and construction of said highway; that the note was to be paid only upon condition that said highway was to be located and constructed upon the said line and route by and in front of defendant’s said farm; that the location of said highway has since been located and determined by officers in authority and that it does not run in front of his said farm; that the said road is now being constructed and will be completed by the state government and the federal government. The pleadings must be construed strongest against the pleader. It avers that the funds were solicited by persons who had no connection whatever with the state or federal governments, or the county government of Daviess or Henderson counties, and the representations as to the location of said road were made by persons having no authority to speak.

That the donation was made by appellee on the representation that the officers having the location of the road in charge “might be induced to locate” and build the same along in front of and near appellee’s farm. We have concluded, after some hesitation, that the answer did not state a defense and that the general demurrer to it should have been sustained, with leave to amend. The only issue presented appears to be whether the highway was located along the line suggested by those soliciting the contributions and as represented by persons having no authority to speak. If the contribution made by appellee on condition that the road should be built along a certain line or course, then he was not liable thereon unless there was a substantial compliance with that undertaking in the location and construction of the road, provided those making the representations had authority to speak; but if the road was located and constructed substantially along the line indicated by those soliciting the funds, he is bound on his subscription if it were made, as is generally the case, in consideration of other donations by other citizens living in the same neighborhood to induce the location and construction of the highway through that vicinity.

The pleadings are in a most unsatisfactory condition and the parties should be allowed to amend and plead to an issue, if they desire to do so. The answer is too indefinite and uncertain, although it contains quite a lot of surplusage matter.

For the reason indicated the judgment is reversed.