City of Louisville v. Cain

Opinion op the court by Judge Nunn

— Reversing.

Appellee obtained a license from appellant authorizing her to retail liquors in the city -of Louisville for a term of -one year, -beginning with August 5, 1907. *79 .About the 1st of September of that year she was arrested tried and convicted for violating the liquor laws by selling a glass of beer on Sunday. Immediately thereafter the license board glaive appellee notice to appear before it on the 9th day of September to give reason, if any 'she had, why her license should not be revoked for the violation of the law on her part. It appears, that the board heiatrd the matter and revoked her license, and she did not appeal therefrom as provided by section 3034, Ky. St. After this she tendered and offered to surrender her license as a liquor dealer and demanded a return of the unearned portion of her license fee tinder section 3029, Ky. St. (Bussell’s St. Sec. 987), which was refused. She then instituted this action to recover same. The city filed its answer on the 11th day of April, 1908, controverting appellee’s claim by the first paragraph, and to the second paragraph the court sustained a demurrer. Thereafter on the 10th day of October, 1908, the city tendered and offered to file an amended answer and counterclaim and a cross petition agiainst appellee and the sureties on her bond, which was executed under ‘section 3031, Ky. St. seeking to recover from them the sum of $500. The bond is as follows: “Whereas, Mary Oain, residing at No. 1100 Eowan street, in the city of Louisville, Ky., has. applied for license to retail liquors at No. 1100 Eowan street, in said city: Now we, the aiaiid Mary Cain, as principal, and Edwin G. Binder, of No. 1908 Baxter street, and Jacob Fisher, of No. 3518 Grand street, in said city, as her sureties hereby covenant to and with the city of Louisville that if the said license is gi anted to the said Mary Cain she will comply with the requirments of the laws during the existence of said license. Witness our< hands this 22d day of June, *80 4 907. Mary Cain. Edwin Gr. Binder. Jacob Fisher.” The court refused to allow the 'amendment to be filed. The city excepted. The cause was tried, and the court rendered judgment in behalf of appellee for the sum of $137, which it found to be the unearned portion of the license fee.

It will be observed that there is no sum named in 'the 'bond which was to be forfeited in case Mary Cain failed to comply with the requirements of the law. Appellant’s counsel insist that as the sureties, in making- affidavit as to their solvency preparatory to ‘signing the bond, stated that they had property subject to sale of the value of $500, and by inference it was carried into the bond', and therefore the parties to the obligation were liable for the pen'alty of $500, as appellee had violated the law with regard to the sale of liquor. We cannot agree to this construction of the statute. The. general rule is that sureties can only be made liable by the terms of the obligation which they execute. You can not reach them by mere inference. City of Paducah v. Jones ( 126 Ky. 809 ) 104 S. W. 971 . 31 R. 1203 . It does not appear that the city of Louisville had fixed by ordinance any penal sum to be inserted in such bonds, as had been done by the city of Paducah in the case just cited. Therefore we are of opinion that the lower court did not err in refusing- to allow this pleading to be filed.

Appellee’s counsel contends that this court has no jurisdiction of the appeal from the judgment 'of $137. This would be true i'f that was the only matter to be considered on the appeal, but 'appellant presented a counterclaim of $500 of which this court has jurisdiction. The precise question presented here was before this court in the case of District of Highlands v. *81 Michie, 107 S. W. 216 , 32 R. 761 . In that case Michie sued the city of Highlands for the sum of $150. It controverted the claim an'd presented a counterclaim for $200. The court, on motion of Micliie, struck the counterclaim from the pleading and record, to which the city excepted. A trial was had, and Michie recovered $100. In considering that case the court s'aid: “It is suggested in the brief for appellee that this court is without jurisdiction to entertain the appeal, because the judgment is less than $200. This theory overlooks the fact that th¿ defendant is entitled to a trial upon the sufficiency of its counterclaim, which was stricken from the record, and this carries with it the right to review the soundness of the judgment in favor of the plaintiff, although less than $200 in amount. Co-Operative Manufacturing, Produce & Home Co. v. Rusche (Ky.) 99 S. W. 677 .” 30 R. 790 . If it had been made tolappear that appellant in this case did not believe it had a cause of action against appellant and her sureties on the bond referred to, and only presented the counterclaim with the view of giving this court jurisdiction of the appeal, its claim would be disregarded by this court; but believing that its counsel acted in good faith in the matter and had reasonable grounds to believe that it had a cause of action on the bond, we think it has a right to have the lower Court’s ruling’ reviewed. In the ciase of Smith v. C. & O. Ry Co., 118 Ky. 825 , 82 S. W. 410 , 26 R. 758 , Smith sued for the value of a horse killed, and fixed it at $150. The testimony showed that the horse was worth about that sum. At the conclusion of the testimony he discovered that the court was about to give the jury a peremptory instruction to find against him, and he then *82 filed an amended petition asking an additional $75 in damages. This court held that the amendment was a sham one, and for the purpose of giving this court jurisdiction of an appeal, and disregarded it.

The only question left for determination is: Did appellee have a right to recover the unearned portion of the license fee she paid? Her counsel contend that she had such right under section 3029, Ky. St., which is, in part, as follows: “A license granted shall be good for only one year and shall not be transferable without the consent of the license board. Upon the surrender of a license, the board shall make a reasonable allowance for the unexpired term,” etc. We construe this to mean that the person must have ¡a license —that is, he must have a right to sell liquor at the time of the surrender — otherwise he has nothing to give up. In the case at bar, according to the agreed state of facts, appellee’s license had been revoked by the board before she attempted to make the surrender; that is, her right to sell liquor under the license she had obtained was at an end, she had no more power to sell liquor than if she had never obtained a license, and, of course, had nothing to surrender which would entitle her to recover that part of the license fee unearned.

For these reasons the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.