109 Ky. 408 | Ky. Ct. App. | 1900
Opinion op the cotjp.t by
Affirming.
This is an appeal from a judgment of the Jefferson Circuit Court rendered upon a verdict of a jury in favor of appellee against appellant. The facts out of which the litigation grew are best shown by the following correspondence between McDonald Bros, and the general freight agent of appellant, a corporation organized under the laws of Connecticut, and who were at that time operating a railroad, as lessees, upon the line of the Chesapeake, Ohio & Southwestern Railroad, in this State, between Louisville and Paducah, under a 50-year lease. The letter of McDonald is as follows: “Louisville, Ky., July 6, 1890. B. F. Mitchell, Esq., Gr. F. A., N. N. & M. V. R. R. City — Dear Sir: We desire to locate near Dockland, a station about sis miles out on your road, a manufacturing establishment for the purpose of making brick and other clay products. It will be necessary, before locating there or purchasing" the ground with a view to it, to know at what rate you will deliver brick to us at 14th and1 Kentucky streets and at 3 2th and Rowan; also, a rate on terra cot-ta and sewer pipes. We would also like to know what you will haul us coal for from the Kentucky coal field, say at Render, or some coal mines in Ohio or Muhlenberg counties. It will probably be necessary in our manufacture to use fire clay, which could be obtained certainly from Paducah, and possibly from points nearer, and a rate upon this will also be necessary. It will also be necessary to have assurance from yon that the rate quoted will be a
First, it is insisted that the trial court acquired no jurisdiction of the person of the defendant by the service of the process issued thereon upon Holmes Cummings, who was only in the employ of appellant as its attorney; these facts being pleaded in abatement, and the court asked to quash the service. Sub-section 3 of section 51 of the Civil Code of Practice provides that in an action against a private corporation the summons may be served in any county upon the defendant’s- chief officer or agent who may be found in this State. And sub-section 33 of section 732 provides that the chief officer of a corporation which has any of the officers or agents herein mentioned is (1) its president; (2) its vice president; (3) its secretary or librarian; (4) its cashier or treasurer; (5) its clerk; (6) its managing agent. It is conceded that appellant did not have in this State either of the first five officers designated in the section. And this question must therefore be decided by determining whether Holmes Cummings, the person on whom the process was served, was “the managing agent” of appellant company at the time the summons was served upon him, within the meaning of the provision of the Code quoted above. It is insisted by appellant that he was its attorney, representing it alone
The answer of appellant first denied all of the affirmative averments of appellees’ petition on which they relied for recovery. In the third paragraph of their answer they say “that the rates named in the contract to the”
Section 211 of our present Constitution prohibits a railroad corporation organized under the laws of other States or of the United States, and doing business or proposing to do business in this State, from acquiring or operating railroads herein until it shall have become a body corporate under the laws of this Commonwealth; and section 841 of the Kentucky Statutes was passed pursuant to this requirement of the Constitution. It provides that any such corporation may become a Kentucky corporation by filing in the office of the Secretary of State' and in the office of the Railroad Commission a copy of the charter or articles of incorporation of such company, properly authenticated. The provisions of the statute could have been easily complied with, and certainly can not be invoked to release appellant from a plain contract liability; and the same may be said of section 218 of the Constitution, and of section 820 of the Kentucky Statutes passed pursuant thereto, regulating freight rates to be charged by railroad companies for long and short hauls over their roads under substantially similar circumstances and conditions. The statute does not punish the giving of the lower rate, but forbids the charging of a greater compensation in the aggregate for the transportation of. passengers or property of like kind under substantially similar circumstances and conditions for shorter than for the longer haul. The effect of changes in the statutes upon the rights of parties under existing contracts is clearly stated in 10 - Am. & Eng. Enc. Law (1st Ed.) p. 182. It is as follows: “If subsequently to the making of contracts a statute is enacted which makes the performance of the contract unlawful, a legal impossibility supervenes,
The last ground of complaint is that the court erred in defining the measure of damages. In its instructions on this point the court told the jury “to'find for the plaintiff in such a sum as they may believe from the evidence plaintiff’s plant for making brick was diminished in value by reason of defendants’ refusal to perform their contract.” It is insisted by appellant that the plant was not injured by the raising of the rates, and that the only way in which the McDonald Brick Company could be damaged by the raising of the rates was by having to pay more therefor, and that such damage’s would depend entirely upon the amount of freight transported, and that its only remedy is a claim for the difference between the freight rate contracted for and the freight charged on the material actually transported, and that such right of action would accrue to appellee from time to time as the contract was violated in this respect. Undoubtedly the brick company could have pursued the remedy suggested by appellant, but it was not its only remedy, and in this instance would
Judge Hobson not sitting.