October 20, 2012

Coffey et al. v. Hendrick et al., Wayne, 1901



COFFEY et al. v. HENDRICK et al.

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.


65 S.W. 127; 1901 Ky. LEXIS 368; 23 Ky. L. Rptr. 1328

November 21, 1901, Decided

Appeal from circuit court, Wayne county.
Action by G. M. Hendrick and others against M. H. Coffey & Co. upon certain promissory notes. Judgment for plaintiffs, and defendants appeal.


COUNSEL: Harrison & Harrison and O. H. & R. B. Waddle, for appellants.

Hardin & Bertram, for appellees.




 [*127]  HOBSON, J. On November 20, 1899, appellants, M. H. Coffey & Co., executed to W. P. Ennis two notes, each for $135, and Ennis delivered to them a written contract on behalf of the Farmer's Business Record Company, by which he created them the sole agents for the sale of a book known as the " Farmer's Business Record" for the period of three years in certain counties of this state. Taking the two notes and the contract together, and looking at the substance of the written contract, we think it clear that the consideration of the notes was the agency to sell the books in the territory, and not the books, which were to be bought of a house in Nashville, Tenn., at $1 each, in unlimited quantities, as appellants wished them. Ennis sold the notes to appellees, who filed this suit upon them. Appellants defended the suit on the ground that Ennis was an itinerant person, and that the notes were not  [**2] marked "Peddler's Note," as provided by section 4223, Ky. St. The court sustained a demurrer to this defense.

Sections 4216, 4218, Ky. St., are as follows:

"All itinerant persons vending lightning rods, patent rights or territory for the sale, use or manufacture of patent rights, goods, wares, merchandise, clocks, watches, jewelry, gold, silver or plated ware, spectacles, drugs or nostrums, perfumery and any other thing  [*128]  not hereinafter specially exempted, shall be deemed peddlers."

"No persons shall be deemed peddlers under sections 4216 and 4217 of this article for selling tin ware, agricultural implements, sewing machines, portable mills, books, pamphlets, papers, meat, stone ware, or farm or garden products, nor merchants nor their agents for selling by sample, but nothing herein shall exempt itinerant persons selling agricultural implements from paying license under this law."

It will be observed that the sale of books, pamphlets, and papers is exempted from the operation of the sections; but it is insisted for appellants that the Farmer's Business Record is not a book, within the contemplation of the statute; and, to present this question for decision, a copy of it was filed with  [**3] the answer, and has been forwarded with the record to this court. We have examined this copy, and find it contains a number of sheets well bound in a book for the use of farmers in keeping a record of their transactions, with printed headings, also other printed matter, such as recipes, useful information, and tables of figures. The standard dictionaries define a book to be a number of sheets of paper, bound or stitched together, whether printed or blank. Thus, we speak of a "day book," a "cash book," a "minute book," a "merchant's account book." The work before us was evidently designed to furnish farmers a system of bookkeeping adapted to their special business; but, as it also contains considerable printed matter, in any view of the authorities we conclude that it should be considered a book, within the meaning of the statute.

It is also insisted for appellant that, though the Farmer's Record be regarded a book, the contract was not really a sale of books, but a sale of territory. It would seem that the contract was drawn as apparently a sale of books to bring it within the saving of the statute. But this is the form, no the substance, of the contract. Appellants did not get a book  [**4] under it. They only got an exclusive agency for the sale of the work in certain territory. It remains, therefore, to determine whether, the sale of books not being within the statute, a sale of territory for an exclusive agency for the sale of the work is also excluded. On this question we have been referred to no authority, and have found none. With some hesitation we have reached the conclusion that a sale of territory for the sale of the book is within the exception. As the substance is the selling of the book and as the sale is excepted, the contract creating the agency to sell would seem also to be excepted. The statute is a severe one, and the court is not willing to extend it by implication, as this might render contracts void, and defeat rights, which ought not to be done unless the legislative intent is expressed with reasonable clearness. We therefore conclude that the court did not err in sustaining the demurrer to this paragraph of the answer.

In another paragraph of the answer the defendants pleaded that Ennis represented to them at the time that the Farmer's Business Record had been copyrighted under the laws of the United Stated by H. W. Rumbly, and said copyright' purchased  [**5] by the Farmer's, Business Record Company, and that by virtue of said copyright no one had the right to make or sell these records, except under the authority of the Farmer's Business Record Company; that these representations were false and fraudulent, and so known to be by Ennis; that Rumbly had never copyrighted the work under the laws of the United States, and that the Farmer's Business Record Company had purchased no such copyright; that they were at the time ignorant of the facts, and relied on the false and fraudulent representations of Ennis, and but for them would not have executed or delivered the notes. The court also sustained a demurrer to this paragraph of the answer. The demurrer admitting the truth of the allegations, the question arises, are they sufficient, if true, to constitute a defense to the action? If the book was not copyrighted, or if the Farmer's Business Record Company, on behalf of which Ennis made the contract, had not purchased the copyright, and could not control the sale of the book, the value of the agency might amount to little. If the representations to this effect were false, and known to be false when they were made, and but for them the contract  [**6] would not have been made, then it was obtained by fraud, and should not be enforced. On the fly leaf of the book, which has been sent up to us with the record, there is a printed statement that it has been copyrighted. But this is only a statement of the printer, and does not operate as an estoppel on the defendants from averring the truth, although the book is made part of the answer. The case is unlike that of a deed or other contract filed with a pleading and admitted to be genuine, which is inconsistent with the allegations of the pleading. The book in this case is filed with the answer merely to show the character of the work, to enable the court to determine the other issues involved. Statements published in the book did not thus become a part of the pleading.

Judgment reversed and cause remanded, with directions to overrule the demurrer to the third paragraph of the answer, and for further proceedings not inconsistent with this opinion.

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