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Civil and Criminal codes of practice of Kentucky online

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(No verification necessary.) E. F., Attorney.

(a) As to this form, see 6 Dana, 357, holding that the tender made the rights of the
parties independent, giving to the defendant the right to the horse and to the plaintiff the
right to the money.

f. Petition averring plaintiffs tender of performance of continuing acts constituting condition

precedent (a),

(Caption as in Form 1).

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c., as in
Form I], agreed to pay the plaintiff two thousand dollars upon the completion of a house
to be built by the plaintiff for the defendant, in the manner described in said writing,
work on which was to be commenced on May 1st, 1890 ; that, on said May 1st, the plain-



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PETITIONS ON WRITTEN CONTRACTS. 511

tiff was ready and willing to commence said work and complete it within reasonable time,
and offered to do so, but the defendant refused to let him do any part of said work ; and

that the plaintiff was put to the expense of dollars in preparing to do said work,

and, by reason of said agreement, lost the opportunity to do other work by which he

could have made a profit of dollars.

Wherefore he asks for judgment against the defendant for dollars damages and

costs [and any other relief the plaintiff may appear entitled to].

(No verification necessary). £. F., Attorney.

(a) As to this form see Chamberlin v. A/cCa Ulster, 6 Dana, 352 ; approved in cases
cited in note to form \oc, ante. But see E. & P. R. Co. v. Pottinger, 10 Bush, 185, and
comments thereon in note, ante, page 67,

g. Petition averring plaintiff's readiness and willingness to perform continuing aets constituting
condition precedent (a) .

(Caption as in Form 1).

The plaintiff, A. B., says that he was engaged in the business of slaughtering hogs on
commission in the city of Louisville, and that, by a writing [state date, filing, &c, as in
Form I], the defendant agreed to pay to the plaintiff the customary commissions for
slaughtering eight hundred well-fatted hogs, which the defendant agreed to furnish to the
plaintiff, at his pork-house in Louisville, between November 1st and December 1st, 1889 ;
that the plaintiff was willing and ready, during the whole of the aforesaid period, to
slaughter the said hogs, but the defendant - failed to furnish them or any of them to the
plaintiff; and that his net profit for slaughtering eight hundred well-fatted hogs, according
to the customary commissions, would have been dollars.

Wherefore he asks for a judgment against the defendant for dollars damages

and costs [and any other relief the plaintiff may appear entitled to].

(No verification necessary.) E. F., Attorney.

{a) See Thompson v. Jackson, Owsley &* Co., 14 B. A/., 114, in which the court, dis-
tinguishing between that case and the case of Chamberlin v. McCallister (see note to Form
10 f, ante), held that the net profit which the plaintiff would have made by doing the
work was the criterion of recovery; because "the slaughtering establishment was pre-
pared . . . and all things were in readiness, and the slaughterers could only operate
at their establishment."

h. Petition averring excuse for non-performance : prevention by defendant (a) .
(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., having been recognized to appear
in the Floyd circuit court at its June term in the year 1890, and answer an indictment
charging him with a criminal offence, did, by a writing [state date, &c, as in Form I],
promise to pay to the plaintiff, an attorney at law, five hundred dollars, if the plaintiff
would appear as his counsel in said case and he should be finally acquitted or discharged ;
and that the plaintiff attended said Floyd circuit court during said term, and was then and
there willing and ready to appear as counsel for the defendant in said case, but the de-
fendant prevented him from doing so by failing to appear and forfeiting his recognizance.

Wherefore the plaintiff prays for judgment against the defendant for five hundred dol-
lars, with interest from the 15th day of June, 1890, on which day said term expired, and
for his costs [and any other relief the plaintiff may appear entitled to].

(No verification is required.) E. F., Attorney.

{a) As to this form, see Majors v. Hickman, 2 Bibb, 217. An averment that perform-
ance was prevented by the defendant is insufficient : facts showing prevention must be
stated. Read v. Cisney t 4 Litt., 137.

33

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$12 FORMS.

i. Another petition averring prevention by the defendant (a).
(Caption as in Fornri.)

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c, as in
Form i], agreed to pay the plaintiff five hundred dollars if the plaintiff should, on or
before June ist, 1890, procure from one L. M. a release of his claim to a tract of land in
said writing described ; and also agreed that the plaintiff, as between him and the de-
fendant, should have the exclusive right to procure said release on or before the last named
day; but that the defendant, without the plaintiff's consent, purchased said claim on April
1st, 1890, and thus deprived the plaintiff of the opportunity to procure said release.

Wherefore the plaintiff asks for judgment against the defendant for said money and
interest thereon from April ist, 1890, and costs [and any other relief the plaintiff may
appear entitled to].

(No verification necessary.) E. F., Attorney.

[a) As to this form, see Marshall v. Craig, 1 Bibb, 379, according to which the plaintiff
would be entitled to the stipulated sum of $500, without any allowance to the defendant
for money paid by him to L. M.

j. Petition averring the happening of an event or t/te existence of a fact made a condition prece-
dent by the contract (a). • .
(Caption as in Form 1.)

The plaintiff, A. B., states that the defendant, C. D., by a writing [state date, &c, as in
Form 1], agreed to pay to the plaintiff five hundred dollars so soon as he should be able
to do so [or — upon the plaintiff's arriving at the age of twenty-one years ; or — upon the
death of the plaintiff's husband] ; and that the defendant became able to pay said money

on the .... day of , and has ever since been able to do so [or — is now able to pay

said money (b)] [or — that the plaintiff became twenty-one years of age on the day of

; or — that the plaintiff's husband died on the .... day of ] ; and that the

defendant has not paid any part of said money nor any interest thereon.

Wherefore the plaintiff asks for judgment against the defendant for five hundred dol-
lars and interest thereon from [state the alleged date of the ability to pay, or arriving at
age, or death] and costs [and any other relief the plaintiff may appear entitled to],

(No verification necessary.) E. F., Attorney.

(a) As to cases in which the plaintiff must aver notice of the happening of an event,
&c, constituting a condition precedent, see note V, ante, page 72.

That he need not aver a request to pay the money in the cases supposed in this form,
see note VI, ante, page 73.

(b) See paragraph 2 of note (1), ante, page 63.

k. Petition averring act of defendant made a condition precedent by the contract {a),
(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c, as
in Form 1], agreed to pay to the plaintiff one thousand dollars, if he, the defendant,
should set up the tailoring-business in Georgetown, Kentucky, within twenty-five years
after the date of said writing ; and that the defendant set up the tailoring business in
Georgetown, Kentucky, on the 1st day of January, 1890; and that he has not paid any
part of said money nor any interest thereon.

Wherefore the plaintiff asks for judgment against the defendant for one thousand dol-
lars and interest thereon from January ist, 1890, and costs, [and any other relief the
plaintiff may appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to this form, see Appleqate v. Jacoby, 9 Dana, 206, in which it was held that the
contract sued on was not a penal instrument; and that, the defence being insufficient, the
court properly rendered judgment for the $1,000, without an inquiry of damages.



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PETITIONS ON WRITTEN CONTRACTS. 513

II. Petitions on contracts containing conditions subsequent {frequently
called collateral conditions),

a. Petition (in what would have been an action of debt at common law) on a bond for pay-

ment of money ; conditioned to be void on performance of an act by the obligor {a).

(Caption as in Form I.)

The plaintiff, A. B., says that the defendant, C. D., is indebted to him in the sum of
one thousand dollars, for that the defendant by a writing [state date, &c, as in Form 1],
promised to pay the plaintiff one thousand dollars on the 1st day of June, 1890, but that
he has not paid any part ihereof nor any interest thereon.

Wherefore the plaintiff asks for judgment against the defendant for said money and
interest thereon from June 1st, 1890, and costs [and any other relief the plaintiff may
appear entitled to].

(No verification necessary.) E. F., Attorney.

{a) At common law, the obligee in a bond stipulating for the payment of a sum of
money, but conditioned to be void on the performance of an act by the obligor, could
maintain either an action of debt or an action of covenant ; for, in legal contemplation,
the condition constitutes a covenant of the obligor to perform the act specified in the con-
dition. In debt, the plaintiff sued for the stipulated sum without noticing the condition,
the burthen of pleading which was on the defendant ; and, if he failed to show per-
formance, judgment was rendered against him for the stipulated sum; and, if it constituted
a penalty in contemplation of a court of equity, the defendant was compelled to go into
chancery for relief from the judgment at law ; but under the Code {% 17 and 113, subs. 2),
the defendant, in order to avail himself of that equitable ground of relief, must rely on
it in the action at law. In covenant, however, the plaintiff was bound to set forth both
the promise to pay the stipulated sum and the condition, and to aver, not non-payment of
the stipulated sum, but, non-performance of the condition ; and if it had not been per-
formed, he was entitled to a judgment for damages.

Under the Code, when the stipulated sum constitutes, not a penalty, but, liquidated
damages, it is, perhaps, immaterial whether the plaintiff sets forth the condition or not,
as, in either case, if the condition has not been performed, he is equitably as well as
legally entitled to a judgment for the stipulated sum; but when that sum constitutes a
penalty, as the plaintiff is equitably entitled to recover damages only, his right to dam-
ages constitutes his cause of action, and he must set forth the promise to pay the stipu-
lated sum and the condition and the defendant's failure to perform it, and pray for the
damages resulting therefrom. See note II, ante, page. 70, and the next following form.

As to what constitutes a penalty and what constitutes liquidated damages, see Hen-
derson v. Stainton, Hardin, 118; Pumsey,&*c, v. Matthews, \ Bibb, 242; Taul v. Everet, 4
/. /. M., 10; Applegate v. Jacoby, 9 Dana, 208 ; Howard v. Chiles, 8 B. Af. y 378; E. <Sr*
P. R. Co. v. Geoghegan, 9 Bush, 56; Bell v. Truit, Id., 257; Thomasson v. Townsend, 10
Id., 116; Hahn v. Horstman, 12 Id., 249.

b. Petition (in what would have been an action of covenant at common law) on a bond for

payment of money, conditioned to be void on the transfer of bank-stock and payments
of dividends by the obligor (a).

(Caption as in Form I.)

The plaintiff, A. B., says that the defendant, C. D., by a writing dated March 1st,
1888, and [state signing, &c, as in Form 1], agreed to pay to the plaintiff twelve hundred
dollars, said agreement to be void if the defendant should transfer to the plaintiff, on or
before January 1st, 1891, right shares of stock of the Bank of Kentucky, and should pay
to the plaintiff the dividends that might be declared and paid by said bank on eight shares
of its stock from the date of said agreement until said transfer should be made; that the
defendant has not transferred to the plaintiff any of the stock of said bank, nor paid to
the plaintiff any of the dividends that have been declared and paid by said bank on its
stock; that, on each share of its stock said bank declared and paid a dividend of

dollars on July 1st, 1888, dollars on January 1st, 1889, dollars on

July 1st, 1889, dollars on January 1st, 1890, dollars on July 1st, 1890, and



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514 FORMS.

dollars on January 1st, 1891, and that each share of the stock of said bank was

worth dollars on January 1st, 1891.

Wherefore the plaintiff asks for judgment against the defendant for dollars

damages and costs [and any other relief the plaintiff may appear entitled to].

(No verification necessary.) E. F., Attorney.

(0) See note to the last foregoing form.

12. Petition on unconditional agreement to pay money by doing work

for the plaintiff, neither time nor place for performance being
specified in contract (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c, as

in Form 1], agreed to do dollars' worth of carpenter's work for the plaintiff; and

that, on the .... day of , the plaintiff requested him to do dollars' worth of

carpenter's work at [stating the place, as, at the plaintiff's residence, in county]

commencing on the day of [allowing reasonable time] [or — state the defend-
ant's absence from the State, or his announcement that he would not do said work, as in
Form 9 e] ; and that the defendant has not done any part of said work.

Wherefore the plaintiff asks for judgment against the defendant for dollars dam-
ages and costs [and any other relief the plaintiff may appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to this form, see ante, notes on page 69, and 4th paragraph of note VI, page 73.
That the plaintiff should pray for damages, and not for the money and interest, see note
I to §379, ante.

13. Petitions on agreement to pay money by delivering property.

a. Petition on agreement to pay money by delivering property not portable on the person, neither

time nor place for delivery being specified in the contrmct (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c, as in
Form 1], agreed to pay to the plaintiff five hundred dollars in horses ; and that, at the

defendant's residence, on the .... day of , the plaintiff requested him to deliver to

plaintiff five hundred dollars worth of horses [or — state the defendant's absence from the
State, or his announcement that he would not deliver said horses, as in Form 9 e] ; and
that the defendant refused to deliver and has not delivered [or — ; and that the defendant
has not delivered] any horses to the plaintiff.

Wherefore he asks for judgment against the defendant for dollars damages and

costs [and any other relief he may appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to this form, see Henderson v. Stainton, Hardin, 118, and ante, notes on page 69;
4th paragraph of note VI, page 73 ; and 1st paragraph of notes on page 74.

Reasonable time should be allowed for delivery; but averment of a request to deliver
on the day after making the contract is sufficient to support a judgment by default. Trum-
null v. Roberts, I Bibb, 185.

b. Petition on agreement to pay money by delivering property portable on the person, neither tune

nor place for delivery being specified in the contract (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., by a writing [state date, &c, as in
Form 1], agreed to pay to the plaintiff five hundred dollars in notes of the Bank of ;



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PETITIONS ON WRITTEN CONTRACTS. $15

that, on the .... day of , the plaintiff requested the defendant to pay him five

hundred dollars in notes of said bank, but the defendant refused to do so (or — state the
defendant's absence from the State, or his announcement that he would not pay the bank-
notes, as in Form 9, e] ; and that the defendant has not paid any of the notes of said bank
to the plaintiff; and that the notes of said bank were worth .... cents to the dollar of
their nominal value on [state the date of the request to pay, or of defendant's departure
from the State, or of his announcement that he would not pay].

Wherefore the plaintiff asks for judgment against the defendant for .... dollars dam-
ages and costs [and any other relief the plaintiff may appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to this form, see Grace v. Park, &*c, 5 /. /. M., 57, and note (a) to Form 9, e.

14. Petitions in actions on policies of insurance (a).

a. Petition on a fire-policy on a building.

A. B .Plaintiff, \ Jefferson Court of Common Pleas.

against \ Petition.

The Insurance Company. . . Defendant, j

The plaintiff, A. B., says that the defendant, The Insurance Company, being a

corporation chartered by an act of the Legislature of Kentucky, with authority to do a
general fire insurance business, executed and delivered to the plaintiff a policy of insur-
ance dated the .... day of , which was signed by its authorized officers and agents,

and is filed herewith, and by which it insured the plaintiff against loss or damage by fire,
between the fat day of June, 1890, at noon, and the 1st day of June, 1891, at noon, of or
to a building, to- wit [describe the building as it is described in the policy], which belonged to
the plaintiff, [or — on which the plaintiff held a mortgage executed by E. F., who owned
said building, to secure the payment of five thousand dollars which he owed to the plain-
tiff, and no part of which has been paid, or — state the plaintiff'* s interest according to the
facts,] to the amount of five thousand dollars, but not to exceed the value of the plain-
tiff's interest in said building, said loss or damage to be paid within sixty days after the
proof required by said company should have been received at its office in Louisville, Ken-
tucky, unless, within said sixty days, it should have notified the plaintiff of its intention
to rebuild [or — repair] the premises, or have requested the plaintiff, in writing, to submit
to arbitration differences between them as to the amount of loss or damage.

And the plaintiff says that said policy contains other conditions precedent, to-wit, [omit-
ting averments as to conditions subsequent (b), set forth, and aver performance or an excuse forth*
non-performance of, every condition precedent on which the plain ffs right of recovery depends {c)\
as] that said company should not be liable on said policy till the actual payment of the
premium therefor, notwithstanding the recital of its receipt in said policy; that the amount
of loss or damage should be estimated according to the actual, cash value at the time of
the fire, and not be more than it would cost the insurer or insured to replace or restore
the same ; that, in case of loss, the insured should give immediate notice thereof to said
company, at its office in Louisville, Kentucky, and should, as soon as possible, deliver to
it a statement in writing, signed and sworn to by the insured, of said loss, giving a state-
ment of the property insured, and its actual cash sound value, at the time of the fire, and
of the property saved, the damaged and not damaged, each severally, and of property
totally destroyed, stating their interest in the same: and if the interest of the insured be
other than the entire and sole ownership, the names of the respective owners or parties
interested shall be set forth, together with their respective interests; the time, origin, and
circumstances of the fire, the occupancy of the building insured, other insurance, if any,
and copies of all policies, renewals, and endorsements thereon, and shall produce a cer-
tificate, under seal of a magistrate, notary public, or commissioner of deeds, nearest the



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5 16 FORMS.

place of the fire, and not concerned in the loss as creditor or otherwise, or related to the
insured, stating that he has examined the circumstances of the insured, and verily believes
that the insured has, without fraud, sustained loss on the property injured to the amount
claimed by the said insured.

And the plaintiff says that he paid the premium on said policy, namely, dollars,

on the .... day of (d) ; that, on the .... day of , said building was de-
stroyed [or — damaged] by fire; that the amount of loss [or— -damage] to said building
caused by said fire, estimated according to the actual, cash value at the time of the fire,
amounted to dollars, and was not more than it would cost the plaintiff or the de-
fendant to replace [or — restore] said premises; that, on the 2nd day of January, 1891

[or — on the day of , the giving of earlier notice having been prevented by —

stating the plaintiff's absence or illness \ or whatever the excuse maybe], the plaintiff gave notice
of said loss to the defendant, at its office in Louisville, Kentucky; and that, as soon as

possible, to-wit, on the .... day of , the plaintiff delivered to the defendant, at its

office in Louisville, Kentucky, a statement in writing, signed and sworn to by the plaintiff,
of said loss, giving a statement of the property insured, and its actual, cash, sound value,
at the time of the fire ; and stating that it was totally destroyed ; [or — stating the part of
said property which was damaged and the part which was not damaged] ; and stating the
plaintiff's interest in said property and that no one else had any interest therein; [or —
stating the plaintiff's interest in said property, and the names of all others owning it or
having an interest in it, together with their respective interests] ; and stating the time,
origin, and circumstances of the fire, and the occupancy of said building at that time ;
and stating that the plaintiff had no other insurance on said building ; [or — stating all other
insurance on said building, with a copy (or— copies) of the policy (or — policies), with the
renewals and indorsements thereon — (or — on which there was no renewal nor indorse-
ment] ; and produced to the defendant a certificate, under seal, of G. H., who was the mag-
istrate [or — notary public or commissioner of deeds] nearest the place of the fire, and who
was not concerned in the loss as creditor or otherwise, nor related to the plaintiff, stating
that he had examined the circumstances of the plaintiff, and verily believes that the plain-
tiff has, without fraud, sustained loss on said property to the amount of dollars (e).

[Or — and the plaintiff says that the defendant, after receiving the aforesaid notice of

loss, to-wit, on the .... day of , notified [or — informed] the plaintiff that it did not

consider itself liable for, and would not pay, any* part of said loss [or — damage] (/).

[And the plaintiff says that in other particulars he complied with, performed, and
observed all the other conditions, provisos, restrictions, prohibitions, and stipulations of the
said policy, and of his application therefor, on his part to be complied with, performed,
and observed, according to the form and effect of the said policy and the said appli-
cation (g) ].

And the plaintiff further says that the defendant did not, within sixty days after re-
ceiving [or — waiving] proof of loss as above stated, notify him of its intention to rebuild
[or — repair] the aforesaid premises, nor has it rebuilt [or—repaired] the same ; and that it
did not, within said sixty days, request the plaintiff to submit differences between them to
arbitration, nor has there been any submission to arbitration with reference thereto ; and
that the defendant has not paid any part of said loss [or — damage].

Wherefore the plaintiff asks for judgment against the defendant for dollars

damages (h) and costs [and for any other relief he may appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to the venue of such actions, see Code, § 71. Unless the action be brought in a
county in which the summons can be served, the petition should state facts showing that
the court has jurisdiction under §71.



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 68 of 142)