166 Ky. 501 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
Plaintiff, J. Gr. Taylor, brought this action originally against the Flat Bock Coal Company, the G-eary Land & Development Company and A. P. Hodges to recover damages for failure on the part of the defendants to comply with a lease. Subsequently, John A. Geary, Ed. Dowling, D. G. Falconer and others were made parties defendant. The return of the service of process on the Flat Bock Coal Company was quashed. The court directed a verdict in favor of Dowling, Falconer and others, and a trial before a jury resulted in a verdict and judgment in favor of plaintiff against John A. Geary for the sum of $450. The amount in controversy being less than $500, exclusive of interest and costs, the defendant Geary has moved for an appeal.
The facts are as follows.: About the year 1881, the Flat Bock Coal Company, a corporation, owned several thousand acres of land then located in Pulaski County, but now embraced in the new county of McCreary. Shortly thereafter, certain creditors- of the company •brought suit and the lands were sold and purchased by John A. Geary, Ed. Dowling, D. G. Falconer, John W. Lell, John B. Wilgus and John T. Miller, and were held by them from that time on as tenants in common. On April 8th, 1909, John A. Geary, Edward Dowling and D. G. Falconer, and the Security Trust Company of Lexington, as administrator of John B. Wilgus and executor of John W. Lell and John T. Miller, entered into a contract with A. P. Hodges, of Pulaski County, by which the following authority was conferred upon him:
“Second party is to have the general supervision and control of all of said lands and-see that no person enters upon any part of said lands or trespasses or squats upon any part thereof, or cuts down, injures or destroys or carries away any trees that may be on same, or strips
‘ ‘ The rent of said portions of land that may be leased or rented shall be collected by second party, arid second party shall account for said rents and pay the same over on the first day of each and every month to first parties. Such timber as may have been cut and that is now lying upon said land may be sold where it lays on the land by second party for the best cash price he can get for it, the same to be removed by the purchaser at his own cost and expense. He shall account to and pay the purchase price over on the first day of each and every month to first parties. Second party shall do all he can to aid the first parties in every way possible to get the possession and control of any portion of said lands that are claimed by persons who have located or squatted upon the same or any part thereof and who have no .valid claim or title thereto or any claim or title of record. Second party shall take the full supervision and control of said lands and give his services and attention to the keeping, preservation and care thereof. He shall not cultivate or crop any portion of said land. Second party shall not commit or permit any waste to be committed on said land. He shall not cut or allow any trees to be cut, barked or injured or carried away. He shall not permit any person to trespass upon said land or take possession of any part thereof or cut down or injure any trees or strip or bark any of them in any manner whatever. He shall make reports as to said lands from time to time to first parties on the last Saturday in each month. For all of his services herein he shall be paid by first parties ten dollars ($10.00) per week, said payments to be made as herein provided, in proportion to the interest the first parties and each of them have in and to said land as follows.”
On August 3rd, 1909, John A. Geary sent a letter to Hodges containing the following language:
On August 14th, 1909, Hodges, in the name of the Flat Rock Coal Company, as party of the first part by him as agent, leased to J. G. Taylor, party of the second part, a portion of the lands in question for purposes of pasturage. The lease provided that it should continue for a term of ten years, unless the premises should be transferred by the Flat Rock Coal Company. Taylor agreed to pay $25.00 on the first of January of each year, and further agreed to inclose the heads of Straight Creek with a good and sufficient fence and to keep same in repair during the term of the lease. The contract was signed by J. Gr. Taylor and A. P. Hodges, “Agent Flat Rock Coal Company.” The first installment of rent was paid on January 1st, 1910. Shortly thereafter, Geary notified Taylor not to do the fencing or take possession of the land. It further appears from the evidence that none of the joint owners, except Geary, knew anything of the alleged lease and had never authorized Geary or Hodges to execute the lease. At that time there was a suit pending for the settlement of the estates of John B. IWilgus, John T. Miller and John W. Bell, and these proceedings were all consolidated for the purpose of disposing of the lands in Pulaski County. The lands were sold on September 10th, 1910. The sale was confirmed on October 10th, 1910, and a deed made to the purchaser on May 18th, 1912. Geary says that he never intended that Hodges should go ahead and make the lease without consulting the owners, but intended that he should prepare the lease and send it back for approval, as had always been done.
It is clear, we think, that the above contract between the joint owners and Hodges is not sufficient to confer on Hodges the general power to make leases to persons not living on the land. "While it is true that he is given general charge and supervision over the land, the contract goes ahead and specifies particularly what his duties are and authorizes him to make leases only to persons then on the land. In view of the fact that his duties and powers are thus particularized, the terms of the contract cannot 'be considered broad enough to include the power to make leases to persons not on the land.
What is the effect of the contract so far as Geary is concerned? The contract purports to have been made by the Flat Rock Coal Company as principal, by Hodges as its agent. It is the rule that a principal may be charged upon a written simple executory contract entered into by an agent in his own name within his authority, although
Since the trial court assumed in its instruction that Geary was responsible for all damages following the breach of the rental contract, it follows that the instruction and.judgment based thereon are erroneous.
"Wherefore, the appeal is granted and the judgment reversed for a new trial consistent with this opinion.