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ally and in the great multitude of cases not affected by any special circumstances from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them."

This is the doctrine declared in Bates v. Norton Iron Works, 113 Ky., 372; Illinois Central Railroad Co. v. Nelson, 139 Ky., 449, and in many other cases and is conclusive in the case at bar.

Now, there was put in evidence a receipt signed by Hooper, in which he recited the proper doing of the work. The receipt was given when the work was first done. It is not conclusive against him, because the defects, if any, were not such as were discoverable by ordinary care at the time. He, therefore, was entitled to a reasonable time in which to give the installed engine a engine a reasonable test, and to his reasonable expense in endeavoring to make it run, if its construction or installation was faulty. Marbury Lumber Co. v. Stearns Manufacturing Co., 107 S. W., 200.

It seems that the defendant admits the payment by plaintiff of the freight item of $9.57 set up as a part of the counterclaim-at least, it so appears from the little that is in the record about this item. If the payment is not admitted, this item should be submitted to the jury by an appropriate instruction, in addition to those which will hereinafter be directed to be given.

The contract itself contains no stipulation upon the time of delivery. The law, therefore, implies a reasonable time. No testimony should be admitted upon retrial as to any agreement as to the time of delivery; for the written contract, in the absence of fraud or mistake, evidences the entire contract.

It results from the foregoing remarks that the instructions upon the former trial should have been, and upon the next trial should be, in substance as follows:

1. If the jury believe from the evidence that the engine was not sound in construction, or was not properly set up, they will find for plaintiff such sum in damages as they may find from the evidence to be the difference, if any, in value between the engine as it was, and as it was set up, and its value as it would have been if sound in construction and properly set up.

You are further told that under the contract between

plaintiff and defendant, the defendant had a reasonable time in which to deliver said engine, considering the usual and customary methods of transporting goods of its nature and character, and the distance which it had to be transported. If you believe that said engine was not furnished within such reasonable time, then you will find for plaintiff such sum in damages as will be a fair compensation for the loss of the use of such an engine for any ordinary purposes during such delay, if any. But you will not find exceeding, in any event, $863, under the items named in instruction No. 1, being the amount claimed therefor by the plaintiff in this petition.

2. If the jury believe from the evidence that said engine was not sound in construction, or was not properly set up, and that plaintiff necessarily expended any money in trying to make it right, they will find for him such sum, if any, as they find from the evidence he so expended, not exceeding, however, the sum of $82 for this item the amount named in the petition.

3. The jury will find for the defendant against the plaintiff the sum of $75 the unpaid balance due upon said engine.

4. If you believe from the evidence that all or any part of the work done by defendant's erecting engineers was done in a proper and workmanlike manner, then you will find for defendant against plaintiff such sum as such proper work, if any, would amount to at 60 cents per hour, but not exceeding for this item the sum of $52.70, the amount named in the counter-claim; and if you believe from the evidence that any of such work, though properly done, was necessary to correct preceding defective work, if any, of such engineers, you will find nothing for such corrective work.

6. The jury will take the total of such sum or sums, if any, as they may find for the plaintiff as against the defendant, and the total of such sum or sums as they may find in favor of the defendant as against the plaintiff, and deduct the smaller from the larger sum and find in favor of the party in whose favor the balance may be the amount of such balance.

7. Nine or any greater number of the jurors may make a verdict, but if any less than the whole number make the verdict, those who do make it must sign it. If all the jurors agree only one need sign it.

For the reasons given the judgment is reversed and the cause remanded for a new trial consistent herewith.

Shadwick v. Smith.

(Decided February 27, 1912.)

Appeal from Hickman Circuit Court.

Principal and Agent-Parol Contract to Sell Land-Validity.—A contract between the principal and the agent authorizing the agent to sell the land of the principal, may be in parol; and though in writing may be varied by a subsequent oral agreement between them, by which the agent's commissions were changed and the time within which he was to sell the property was extended.

R. B. FLATT for appellant.

BENNETT, ROBBINS & THOMAS and J. KELLY SMITH for

appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSON— Affirming.

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J. Kelly Smith brought this suit against R. C. Shadwick to recover commissions alleged to be due him for procuring a purchaser for a tract of land owned by Shadwick. The facts of the case are these: On January 10, 1910, Shadwick signed a writing which he delivered to Smith by which he put the land in his hands for sale "for a period of six months from date and thereafter until written notice is given of the cancellation of this agreement." The writing also contained these conditions: "The sale price to be $3,000 or over. Terms of sale $1,000 cash and balance moderate terms 6 per cent." The commissions of the agent are thus expressed: "In case of sale an amount equal to 5 per cent. of the sale price or all over $2,850 at the option of the agent." Smith was about to sell the land to Floyd Chambers for $3,450, and Chadwick was reluctant to make a deed, so it was agreed between Smith and Shadwick that Smith was only to receive $200 for his commission and Shadwick $3,250 of the purchase money. After this had been agreed to Chambers was unable to get up the cash payment of $1,000, and when they met to close the trade on December 31, Smith says that Shadwick then agreed to give him two weeks longer to get up the money and close the trade. Shadwick says he agreed to give him ten days longer. At the end of ten days Shadwick wrote Smith that he took the land out of his hands. Within the two weeks Smith got the money up, put it in bank and

called on Shadwick to make the deed. This Shadwick declined to do and this suit followed. The court instructed the jury in substance that if the plaintiff and defendant had an agreement by which the plaintiff was to make a sale of the land within a certain time and within that time the plaintiff procured a purchaser for the land they should find for him; otherwise they should find for the defendant. The jury found for the plaintiff, and the court having entered judgment on the verdict, and refused a new trial, the defendant appeals.

The suit was brought on the written contract. After the evidence was heard the plaintiff filed an amended petition setting up the oral contract extending the time. The circuit court has a discretion in allowing amendments and we do not see that he abused a sound discretion in allowing the amended petition filed.

An agency to sell land may be created by parol. (Talbot v. Bowen, 1 A. K. M., 437; Isaac v. Gearheart, 12 B. M., 231; Whitworth v. Pool, 29 R., 1104.) Although under the written contract, Shadwick had a right by notice in writing to take the land out of Smith's hands after the expiration of six months from the making of the contract, still while the land was still in Smith's hands and while he was trying to find a purchaser, it was competent for the parties by parol to agree upon a further time which he was to have to find a purchaser. A written contract may be modified by a subsequent parol agreement. By the subsequent agreement in this case, the agent agreed to take $200 in lieu of the compensation fixed in the written contract. This agreement was binding on him. The agreement between them giving him two weeks longer to find a purchaser was also binding on Shadwick, the efforts he was to make in procuring a purchaser and the expenses he incurred, being a sufficient consideration to support the contract. The consideration for a contract may be either a benefit to the promissor or a detriment to the promisee. The principal and the agent could make a parol agreement as to the agent's commission, and as to the time he was to have to make a sale.

The weight of the evidence is not against the verdict of the jury. On the contrary the circumstances sustain Smith. The trouble between the parties seems to have grown out of Shadwick's desire to sell the land without commissions.

Judgment affirmed.

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2.

3.

The Lack Malleable Iron Company v. Graham.

(Decided February 27, 1912.)

Appeal from McCracken Circuit Court.

Master and Servant-Negligence--Withdrawing Case From Jury. -The rule is well settled that it is only where from the plaintiff's evidence it cannot be determined whether the injury resulted from some negligence of the employer or other cause, and that the probability in the one case is equally as strong as in the other, that the court is warranted in withdrawing the case from the jury.

Instructions.-While the instructions should have told the jury that no recovery could be had unless the plaintiff relied upon the promise to supply him a new match board, the jury was not mislead by the failure of the court to incorporate this idea in the instruction.

Evidence-Physician's Bill.-It is competent, when a physician has testified as to the character, nature and extent of an injury, to ask him the amount of his bill and whether or not it has been paid, for the purpose of showing bias and affecting his credibility upon this point.

WHEELER & HUGHES for appellant.

HENDRICK & CRICE and FRANK BURNS for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

On the second of September, 1910, while engaged as a molder in the plant of the Lack Malleable Iron Company, in the city of Paducah, John Graham had his left foot and the toes thereof seriously burned and injured by coming in contact with molten iron. Conceiving that his injury was due to negligence on the part of his employers in not furnishing him reasonably safe machinery with which to do the work assigned him, he instituted a suit for damages. The company denied liability, and pleaded that the injury was the result of the plaintiff's own negligence. Upon a trial before a jury the plaintiff recovered a verdict for $2,500.

The defendant appeals and seeks a reversal upon four grounds: First, that the verdict is flagrantly against the evidence and is grossly excessive; second, that there is no substantial evidence showing that the injury is permanent; third, that, as the evidence for plaintiff shows that the injury may have resulted from one of several causes, only one of which was, under plaintiff's

Vol. 147-6

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