for another, we think it not improper to say that in the case of Wilder v. Commonwealth, 81 Ky. 591, it was held by this court that an indictment similar to the one in the case at bar was fatally defective.

We find no error in the instructions given by the trial court. They follow the statute, and not the indictment, in defining the offense with which appellant is charged. The instructions are only two in number, and we commend them for their brevity and accuracy.

For the reasons herein given, the judgment is reversed, and cause remanded for a new trial and further necessary proceedings.

Ky. St. 1903, § 470, declaring that the consideration of a written contract need not be expressed, but may be proved by parol; section 472, providing that the consideration of any writing may be impeached; section 656, providing that no insurance company shall make any terms as to premiums not expressed in the policy; and section 679, providing that policies referring to the application as forming a part of the policy shall have attached a copy of the application when read together, render parol evidence showing the consideration of a policy admissible, but require that the statement of the consideration in the application shall be set forth in the policy or a copy thereof attached thereto.

2. INSURANCE WAIVER OF FORFEITURE— AUTHORITY TO RECEIVE PREMIUM.

Industrial insurance policies provided that the premiums should be paid out of the wages of the insured. Orders were given the insurer by the insured on the employer's paymaster, who did not retain the premiums out of his wages, and insured was notified that the policy had lapsed. Before any further payment became due, the insured died. Subsequently the beneficiary paid the premium to the paymaster and received a receipt, which had been sent to him by the insurer. Held, that the paymaster was without authority to receive the payment; he being the agent of the insured to pay from the wages the premium as it fell due, and the agent of the insurer only in remitting the same to it, and the policy, stipulating that the payment of the premium was a condition to a recovery thereon, was forfeited.

Appeal from Circuit Court, Greenup County. "To be officially reported."

Action by Cyntha Jasper against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed.

Allen D. Cole and W. T. Cole, for appellant. Worthington & Paynter, for appellee.

O'REAR, J. This was an action upon a policy of accident insurance. The policy provided that, if the premium or any installment was not paid when due, the policy was to lapse. It was a form of industrial insurance used among patrons of the insurer,

who were railroad employés. The policy contains these clauses relative to the premiums: "The consideration for this policy is the warranties contained in the application therefor (which is made part hereof) and the payment of the premium therefor when due, payment of which when due is a condition precedent to a recovery hereunder. * This company shall not be liable for any loss occurring hereunder while the insured shall be in default in the payment of any premium." What the sum was to be that should constitute the premium is not stated in the policy. It is stated in the application, and the notes given therefor are shown in the record. But it is argued that under sections 656, 679, Ky. St. 1903, as applied and construed in Provident Saving Life Assurance Society of New York v. Beyer, 67 S. W. 827, 23 Ky. Law Rep. 2460, and other cases, the application and notes cannot be treated as part of the contract; nor can their statement be considered, unless they are attached to, or copies thereof are attached to, the policy. No case adjudicated so far has held that the consideration for an insurance policy may not be proved or disproved, however it may be stated in the policy. Under section 470, Ky. St. 1903, the consideration of a written contract need not be expressed in the writing. "It may be proved when necessary, or disproved by parol or other evidence." If a policy of insurance in writing fail to state the consideration therefor, the contract would not be deemed nudum pactum on that account. The law of this state presumes there is a consideration for all written engagements to pay money. And by section 472, Ky. St. 1903, it is provided: "The consideration of any writing, with or without seal, may be impeached or denied by pleading verified by oath." Sections 470, 472, 656, 679, Ky. St. 1903, all being in force, must be read together in construing written contracts of insurance. Evidence is therefore receivable to show what the true consideration of a policy of insurance was, and likewise to show that it was not paid. Where, however, any part of the consideration is a statement of the insured made in a written application, under the statute (section 656) it must be stated in the policy, or a copy thereof endorsed on the policy. To this extent, section 656, Ky. St. 1903, imposes an additional condition to the validity of such contracts, under consideration of a public policy to guard against deception and overreaching of insurers.

In the case at bar, the money consideration for the policy of insurance sued on was an annual premium of $10, to be paid in four equal installments, the first of $2.50, to be paid out of the insured's January wages to become due from the railroad company for which he was working, and like sums to be paid out of the January, March, and April wages of the same year. Orders were

given appellant by the insured upon the paymaster of the railroad company accordingly. Owing to the fact that insured gave his name to appellant as Benjamin F. Jasper, and was known on the payrolls of the railroad company as Frank Jasper, the installment due out of the January wages was not retained by the paymaster for remittance to appellant. It was all paid to the insured instead, who was notified promptly that his policy had lapsed in consequence. Before any further payment became due, insured was accidently killed by a railroad train. A few days afterward his widow, appellee, who was the beneficiary named in the policy, paid to the paymaster of the railroad company for transmission to the appellant, the $2.50 due in January past, and was delivered by the paymaster a receipt therefor, which had been issued and sent to him before the January installment became due, so that it could be delivered to insured when that amount was deducted from his wages. The paymaster was without authority to receive this payment on behalf of appellant, after the death of the insured; nor was he the agent of appellant in that transaction. On the contrary, in the absence of such an agreement, he was the agent of both parties in such matter. He was the agent of the insured to pay over from his wages the agreed amount as it became due on his premium. He was the agent of the insurer in remitting it to the home office of appellant. It was clearly shown that insured paid nothing whatever for his contract. It was lapsed by its express terms when the accident occurred. A peremptory instruction should have been given to the jury upon this showing.

Judgment reversed, and cause remanded, for proceedings not inconsistent herewith.

BONTA v. HARVEY.

(Court of Appeals of Kentucky. Sept. 26, 1905.)

INDEMNITY CONTRACT CONSTRUCTION RIGHT TO SUE THEREON-PROOF OF LossSUFFICIENCY.

An indemnitor stipulated to indemnify one from loss in purchasing shares in a corporation. The corporation executed two mortgages on its property to secure creditors. The property was sold to the trustees in the mortgages for the beneficiaries named in them. The conveyance was absolute, and there was no understanding that any of the property purchased was for the benefit of the corporation. Subsequently the mortgage liens were released of rec ord. The corporation was indebted to the amount of $8,000 to $10,000, and it had about $9,000 of unsecured judgments and claims, which were practically worthless and which nothing could be derived for the benefit of the stockholders. Held, that an action was maintainable on the indemnity, subject to the right of the indemnitor to a credit, if anything was left after payment of the corporate debts, to the extent of his pro rata part.

from

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division. "Not to be officially reported."

Action by A. B. Bonta against W. P. Harvey and another. From a directed judgment for defendant Harvey, plaintiff appeals. Reversed.

Bradley & Batson, for appellant. Carroll & Carroll and W. H. Holt, for appellee.

NUNN, J. The appellant instituted this action on the following writing: "Louisville, Ky., May 7, 1889. We, the undersigned, hereby guaranty Messrs. H. C. Williams and A. B. Bonta that in the purchase of interests in the Ozone Park Land Company of New York they shall suffer no loss, and that we will indemnify them for any loss, should any such occur. In other words, they, having subscribed each for a share of $5,000 in the above-styled company, we hereby agree that to the extent of $2,500 paid by each of them, and 8 per cent. additional, that we will make good any loss or damage to them arising out of this transaction. This guaranty is only to the extent of our respective interests in the said Ozone Park Land Company paid up, amounting to $5,000 each, or a total of $15,000. John S. Cain. H. Allen Tupper, Jr. W. P. Harvey." The appellant alleged that John S. Cain had died, leaving no estate; that H. Allen Tupper, Jr., had become a nonresident of this state; and that the interest of H. C. Williams in the contract had been transferred to John O. Rogers. The action was brought against appellee, W. P. Harvey, and Rogers was made a defendant because he declined to join as a plaintiff. The plaintiff alleged, in substance, that he was induced by appellee, Cain, and Tupper to take and pay for the stock in the Ozone Park Land Company by reason of their executing and delivering the writing copied above; that this land company has been insolvent from its organization; that it never undertook to perform any act in its corporate capacity, except to purchase and dispose of the land mentioned, and that this was completed in July, 1901; and that since that time it has not owned any property or anything of value, and it had abandoned the purpose for which it was organized; and, in everything save the formality of surrendering its charter, that it has ceased to exist. The petition continued as follows: "Plaintiff finally avers that he has never received one cent from his investment of $2,500 in the stock of the said corporation, in dividends, or distribution of its property among stockholders, because there has been none, nor otherwise, and that the said amount, together with interest thereon at the rate aforesaid from the date of his subscription to the capital stock of said corporation, to wit, May 7, 1889, has been and is now a total loss to him. He allegeą ** at

neither under the contract of indemnity set out in the petition, nor otherwise, have the guarantors, whose signatures appear thereto, or any of them, ever paid him his loss aforesaid, or any part thereof." The answer of appellee made an issue. The proof was heard, and at its conclusion the court gave a peremptory instruction to the jury to find for the appellee. We copy a portion of the reasons given by the court which induced it to give the instruction: "The Ozone Park Land Company was the owner of very considerable property in New York, about which you have heard very considerable in the testimony. A great part of that property has been sold; in fact, it seems from the evidence that all of it has been sold. I take it for granted that the plaintiff will ultimately suffer a loss, and that there may then be a liability upon this writing upon which he sues; but the Ozone Park Land Company owns an equity in a considerable part of this land, which was formerly owned by this company, subject to certain claims that have priority upon a part of the land, and after those claims have been satisfied, if there is any surplus, it belongs to the stockholders of the company. So that it is impossible for you or any one else to say at the present juncture whether or not the plaintiff has sustained a loss; and it is especially impossible for you to say what that loss is, because that cannot be ascertained until the affairs of the company are wound up, and this equity that I have spoken of is developed, or at least until their property has been sold, and it is ascertained whether or not it amounts to more than the claims which are fixed charges upon it. So that the verdict is rendered, not upon the ground that the defendant is not liable upon the writing, but simply upon the ground that the case is prematurely brought."

After a careful reading of the record, we are unable to agree with the conclusion of the lower court. From the evidence it appears that the corporation was hard pressed for money with which to conduct its business from its organization; that it was advanced money for such purposes by loans from some of the stockholders, and by persons who did not own stock; that on the 18th of August, 1899, it had received such loans to the amount of $9,350, and on that day the corporation executed a mortgage to W. P. Harvey for that sum on a portion of its lots. Harvey was made the trustee for those who had furnished the money to the company; he agreeing that when the money was collected he would prorate it, and pay it to those who had furnished it. This debt remained unpaid until April 18, 1901, when the persons to whom it was due became afraid that the security was insufficient, and demanded that a new mort

be executed, including additional propThe mortgage was executed under the tions as the first. In addition to

the amount named in the Harvey mortgage, the company had become indebted on account of loans from its stockholders and others in the sum of $15,421.92, and on the 18th of April, 1901, executed a mortgage to A. J. Carroll to secure this sum. This mortgage covered many lots belonging to the company. These mortgage debts became due about the 1st of July following. It also appears that some of its creditors with liens on its property had recovered judgment in large sums in the state of New York, and the corporation, ascertaining that it could not raise the means to meet these judgment debts and the mortgages, determined that it would make a sale of all of its lots and use the proceeds to pay all of its liabilities in so far as it would. In furtherance of this the directors of the company passed a resolution authorizing and permitting the officers, directors, and stockholders of the corporation to attend such sales, and purchase the property of the company as individuals, and in any such purchase they were not to be regarded as having purchased for the company or as holding it in trust for the corporation. The sales of all the lots were made about the last days of June and the first days of July, 1901, and were public sales to the highest bidder, except what were known as the "office lots." The lots purchased by those interested in the Harvey mortgage, and the office lots which were sold by the corporation to the same persons at the agreed price of $2,500, were all conveyed to W. P. Harvey, and the other lots purchased by those interested in the Carroll mortgage were conveyed to Carroll. In these conveyances, Harvey and Carroll took the title, and held the same for the benefit of themselves and the other beneficiaries named in the respective mortgages. These conveyances were absolute, with out any reservation of interest of any character in behalf of the corporation. The proof shows without contradiction that there was no understanding or agreement of any kind, either verbal or written, that any of these purchases of lots included in the Harvey and Carroll deeds were for the benefit of the corporation, or that under any circumstances the corporation had or could have any future interest therein. On the 5th of July the mortgage liens of Harvey and Carroll were released of record. This being true, it left the corporation without any property whatever, and with an indebtedness of $8,000 or $10,000. The proof shows that the corporation has about $9,000 of unsecured judgments and claims which are worthless. One or two of appellee's witnesses stated that there might be something derived from these claims in the future, but it is evident that there cannot be enough collected to pay the ordinary liabilities of the company, and there can be nothing derived therefrom for the benefit of the stockholders. If, however, on the return of the case, the appellee desires any credit by reason of these claims, the

Where plaintiff contracted to purchase lumber from defendants, and to make advances on the price to pay defendants' hands for sawing the lumber, the measure of damages in a crossaction by defendants for breach of this agreement was the difference between the contract price and the cost of sawing, hauling, and loading the lumber, plus a payment already made.

2. EVIDENCE-CONVERSATIONS OF AGENTS— ADMISSIONS OF PLEADING.

Where plaintiff's pleadings admitted that a certain person was its agent, it was not error to admit in evidence the conversation of such agent, although there was no evidence of the agency.

3. CONTRACTS-CONSTRUCTION.

Where defendants contracted to saw and deliver lumber to plaintiff at a certain price, and plaintiff agreed to pay defendants' pay roll on the 15th and 30th of each month until certain timber should be sawed, the pay roll not to exceed $4 per 1,000 feet, the contract did not mean that each $4 should be paid as each 1,000 feet was cut, but merely that all the payments on the pay roll should not exceed $4 per 1,000 feet on all the lumber sawed.

4. TRIAL-FAILURE TO INSTRUCT.

In an action for damages for breach of contract, the request of an incorrect instruction on the measure of damages was sufficient to require the court to give a proper instruction on that point.

NUNN, J. The appellant instituted this action in August, 1900, claiming a lien upon a lot of lumber and saw logs, and alleged that Hurst and others violated a contract with reference thereto, and obtained an order of court placing the property in the hands of a receiver, and directed a sale thereof. Hurst and others appealed from that order, and this court reversed the same, the opinion being in 65 S. W. 364, 23 Ky. Law Rep. 1406. While that appeal was pending the receiver, under the order of court, sold the lumber and logs. On the return of the case to the lower court, Hurst and others filed an amended answer and counterclaim by which they

sought to recover of the appellant $2,400 in damages sustained by reason of the appellant failing to comply with its part of the contract in failing to furnish them money with which to pay their hands for sawing the logs into lumber and delivering same at the place stipulated in the contract. The appellant filed a reply making an issue; the question of damages was submitted to a jury, and it returned a verdict in behalf of appellees for the sum of $1,500. The court rendered a judgment thereon, from which the appellant has appealed. We refer to the former opinion for a synopsis of the original and supplemental contracts between the parties.

The appellant assigns four reasons for the reversal of the judgment: First, because the court refused to render a judgment in its favor notwithstanding the verdict; second, because the court permitted witnesses to relate conversations between the appellees and one E. W. Hampton upon the idea that Hampton was the agent of appellant when there was no proof of that fact; third, because the court misconstrued the supplemental contract between the parties in reference to the responsibility of appellant to meet or pay the pay rolls of the appellees twice a month when they were sawing and delivering the lumber; fourth, in refusing to give the jury the instructions offered by the appellant and fr giving an erroneous instruction on its own motion.

With reference to the first ground, we will state the facts in the record applicable to it. Under the contract beween the parties the appellant was to pay appellees $5.50 per 1,000 on the contract price when the logs were delivered at the mill, the place where they were to be sawed into lumber, and an additional amount when they were sawed into lumber, and the balance of the contract price when the lumber was delivered on board the cars. The appellees were to receive $35 for the best class of quarter-sawed oak and $19 for the best class of poplar, and other prices for other classes named in the contract. It was agreed in the pleadings that the appellant had paid the appellees the $5.50 per 1,000 on the timber in the log, amounting to something over $2,500, with its interest, and that appellant had also paid something to one Partin for the sawing of something near 100,000 feet of the timber; and the appellant claims that, the jury having only found in behalf of the appellees $1,500, it was evident that appellant was entitled to a judgment for the difference, less the amount which the lumber and logs brought at the receiver's sale, to wit, $1,458. In other words, that appellant was entitled to a judgment against appellees for some $100 or $200. The appellant is in error in this contention. It appears from the pleadings and proof that the appellees sought to recover of the appellant in damages the difference between the contract price and the cost of sawing, hauling, and placing on board cars the lumber, plus tin

$5.50 per 1,000 already advanced. If the appellees were entitled to anything, this is the proper criterion of recovery.

The court did not err on the second proposition, for the reason that appellant admitted in the pleadings that E. W. Hampton was its agent.

As to the third reason assigned, we are of the opinion that the court did not err in its construction of the supplemental contract. It is clear that the $4 per 1,000 feet, as used in the contract, did not mean that each $4 would be paid as each 1,000 feet was cut, but it meant that all the payments on pay rolls should not exceed $4 per 1,000 on all the lumber sawed. It is certain that the parties understood at the time that the appellant was to meet and pay the pay rolls of the appellees on the 15th and 30th of each month, until all the logs were sawed, and that they knew that the first one or two pay rolls would be greater than at the rate of $4 per 1,000. This was so by reason of their having the mills to set and prepare for sawing.

With reference to the fourth and last reason assigned for error, we are of the opinion that the court erred to the prejudice of the appellant in failing to define any measure or criterion of recovery. The court should have given a separate instruction, or have added to the one given a criterion such as is given in our discussion of the first proposition for reversal, supra. The appellant offered one upon this question, but it was coupled with other matters not proper and material to the issue, and it was properly refused. But, appellant having offered an instruction upon this point, even though not in proper form, it was the duty of the court to give a proper instruction on that point. In the case of L. & N. R. R. Co. v. Harrod, 75 S. W. 233, 25 Ky. Law. Rep. 250, the court said: "The rule upon this question now is that, where a party in a civil case fails to offer an instruction upon a point of law involved in the case, it is not error in the court to fail to instruct on that point; but if a party offers an instruction upon some point of law involved, which is refused by the court because of defects in form or substance, then it is the duty of the court to prepare, or have prepared, and give, a proper instruction on that point."

For the reason given, the judgment is reversed on the original appeal, and affirmed on the cross-appeal, and the cause remanded for further proceedings consistent herewith.

it may be proved by circumstantial evidence. 3. SAME CONVEYANCE TO WIFE-BURDEN OF PROOF.

A conveyance by a husband in failing circumstances to his wife places upon the grantee the burden of proving the good faith of the transaction, including proof that the consideration was adequate.

4. SAME-FRAUDULENT INTENT-KNOWLEDGE OF GRANTEE.

Where the grantee has knowledge that the grantor intends by conveyance to defraud his creditor, the question whether consideration was paid is not material.

5. SAME-EVIDENCE-SUFFICIENCY.

In a suit to set aside a fraudulent conveyance, evidence held to support findings that the grantor intended to defraud his creditors, that the grantee had knowledge of the fraudulent intent of the grantor, and that no consideration was paid.

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. "Not to be officially reported."

Suit by Sarah E. Minter against J. H. Wiggington and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Sam'l Avritt, for appellants. L. A. Hickman, Reasor & Crume, and Hickman & Watkins, for appellee.

O'REAR, J. This suit was brought by appellee, a creditor of J. H. Wiggington, against appellants, J. H. Wiggington and Lena Wiggington, husband and wife, to set aside as fraudulent a conveyance of his land, made by J. H. Wiggington to his wife, which was without valuable consideration, and which was for the purpose of defrauding and de laying J. H. Wiggington's creditors. The circuit court granted the relief, set aside the conveyance, and subjected the land to appellee's debt.

J. H. Wiggington had been dealing extensively in real estate for a number of years, was heavily involved, and was, in fact, insolvent. He had been getting advances, it is claimed, from his son, N. B. Wiggington, through a number of years, and was largely indebted to N. B. Wiggington, according to the latter's claim, extending in amount from $10,000 to $15,000, on account of such advancements. It is claimed that J. H. Wiggington bought the tract of land in contest, but was unable to pay for it, and that his son, N. B. Wiggington, agreed to pay the consideration, provided that J. H. Wiggington would convey the land to his wife, appellant Lena Wiggington, who was the stepmother of N. B. Wiggington. The proof shows that N. B. Wiggington did, in fact, pay the greater part of the consideration; but it also shows that J. H. Wiggington and N. B. Wiggington, to settle and secure all advancements made by the latter to the former, had had numerous real estate transactions, including a conveyance by J. H. Wiggington to N. B. Wiggington of two tracks of land in Jefferson County, Ky., for a nominal consideration, the actual value of which is not clearly shown, but was admitted by N. B. Wigging