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

Action by J. A. Craft against W. E. Barron. From a judgment for defendant, plaintiff appeals. Affirmed.

Morton, Webb & Wilson, for appellant. Allen & Duncan, for appellee.

HOBSON, C. J. Appellant, Craft, was a contractor with the United States government on a number of star routes for the carrying of mail in the year 1898, and he sublet to the appellee, Barron, the contract on the route from Brownsville to Alice, Tex., for a term of four years. The contract with Barron was made on behalf of Craft by P. H. Idol, his agent. When the contract was signed by Barron, he had not been over the route, and did not know anything about it personally. After he signed the contract he went to Texas and found the route different from what he had understood, and at once gave notice to Craft that he would have to make some other arrangement, as he had been deceived in the contract. Idol received the letter, and wrote Barron that he would have to stand to the contract. Barron had contracted to take the route for $4,500 a year. Craft finally made a contract with another person to take it for $7,900 a year, and sued Barron to recover the damages which he had sustained, amounting to $3,400 a year for the four years. Barron pleaded that the contract had been obtained from him by fraud. The case was heard by a jury, who returned a verdict in favor of Barron, and Craft appeals.

Barron pleaded simply that he was induced to make the alleged contract by the fraud, misrepresentation, and covin of the plaintiff, without setting up in what the fraud consisted. The plaintiff demurred to the plea, and also entered a motion that the defendant be required to make his plea more specific. The court overruled the demurrer and the motion, and of this the plaintiff complains. The rule that a general plea of fraud in an answer is good, without specifying the facts constituting the fraud, was announced by this court in Sharp v. White, 1 J. J. Marsh. 106, and in Ross v. Braydon, 2 Dana, 161, 26 Am. Dec. 445. These cases were approved in Whitehead v. Root, 2 Metc. 584; Evans v. Stone, 80 Ky. 78; and Dowing v. Carr, 38 S. W. 1044, 18 Ky. Law Rep. 979. The circuit court properly followed these cases, which cannot now be departed from, though, as was said in the first case, it is better pleading to set out the facts constituting the fraud, and, on a motion to make the pleading more specific, this should always be required, where it appears to be necessary to enable the plaintiff to prepare his case. But in the case before us this was not shown. The defendant had pleaded the facts specially in his original answer, which the court had required to be reformed. The plaintiff, some months before the trial, had taken the deposition of his rent, Idol, with whom the transaction was

had; both sides interrogating him as to the misrepresentations relied on. The Code provides that a judgment shall not be reversed for an error not affecting the substantial rights of the party complaining. If the answer had been made specific, it would not have enlightened the plaintiff one whit as to the case he was to meet, and no substantial right of his was affected by the ruling of the court.

On the Saturday before the trial took place the defendant had taken the depositions, at Danville, Ky., of White and Chrisman, by whom he proved that Idol's character for truthfulness was bad. When the case was called for trial, the plaintiff announced that he was not ready on account of these two depósitions, which had been taken on the preceding Saturday. The court ruled that he would not compel the plaintiff to try, but would give him time to take proof to meet the evidence of White and Chrisman. The defendant thereupon withdrew the depositions of White and Chrisman, agreeing not to read them on the trial. The parties then announced ready, and the trial was begun. On the next day, while the trial was in progress, the plaintiff saw White and Chrisman in the courtroom, and thereupon moved the court to set aside the swearing of the jury and continue the case. The court overruled the motion, and of this he complains. If the defendant had not taken the depositions of White and Chrisman, but had brought the witnesses into the courtroom, as he did on the second day of the trial, the plaintiff would have been in no better shape than he was when the depositions were taken and withdrawn. If he had filed his affidavit that he was taken by surprise, and that, if given time, he could get proof sustaining the character of Idol, it would have been proper for the court to set aside the swearing of the jury and continue the action. But this he did not do. He did not make any showing that, if given time, he could get any evidence he did not have then. He simply stood upon his right to object to White and Chrisman testifying. He did not ask at any time during the trial a continuance at his cost, nor did he make any showing that he was surprised by the attack on Idol's character, and under the circumstances the court properly refused to set aside the swearing of the jury and continue the case.

It is also insisted for the plaintiff that the proof assailing the character of Idol should not have been admitted. While the evidence does not fix dates very accurately, it shows that for a number of years Idol lived at Danville, Ky., and that he left Danville and moved to Lexington about the year 1896. He was living in Lexington in the year 1898, when the contract was made which was involved in the action. Some time after that he left Lexington and went to Indiana, staying there a short time, and then went to California, and had lived in California three

years at the time of the trial. White testified that his character for truthfulness was bad at Danville up to the time that he left there, and that it was bad in California, where he lived at the time of the trial. Other testimony was introduced showing that his character was bad at Lexington and at Danville. When a witness' character is attacked, the evidence is admitted for the purpose of discrediting the witness. His character at the time he testified is the material inquiry; but his character at a previous time not too remote is relevant, as tending to confirm the evidence as to his present character. The law does not presume that a character once formed in a mature man will suddenly change. The trial court has some discretion in determining whether the evidence is too remote or not. No definite rule can be laid down for all cases. The best evidence which is reasonably practical must be adduced. If a witness has moved from the state, and especially if he has not remained very long at one place since leaving the state, but has been a transient person, resort may be had to his reputation at his former residence, and at a time more remote from the trial than would be otherwise allowed. In the case at hand the witness' character was shown to be bad, both at Danville and at Lexington, where he had lived in this state, and in California, where he lived at the time of the trial. Evidence that a witness has a bad character at the place where he lives at the time of the trial, when he has been there only a short time, is materially strengthened by proof showing that his reputation where he last lived before going there was equally bad.

The evidence for the defendant was sufficient to go to the jury, under the rule which obtains in this state that, where there is any evidence, it must be left to the jury. Nor can we say on the whole case that the verdict is against the evidence. If the defendant's statements were true, he was grossly deceived by Idol, and was induced to sign the contract before he went to Texas and examined the route by Idol's false statement to him that the contract had to be closed within three days or he could not get it. The instructions of the court set out the representations which the defendant testified Idol had made to him in regard to the route, and instructed the jury that if these representations were substantially untrue, and by reason of them the defendant was induced to make the contract when he would not have made it if he had not been deceived, and that he made the contract relying on the statements and believing them to be true, they should find for the defendant. The court also instructed the jury that, if Idol only made the statements or representations as matters of opinion, and not as a matter of fact, they should find for the plaintiff. These instructions correctly informed the jury as to the law of the case. They did not take from the jury

the power to judge of the materiality of the representations, for the jury were expressly told that they could not find for the defendant, unless he relied upon the statements and, believing them to be true, was thus induced to enter into the contract, when but for his belief in the truth of the statements he would not have entered into the contract. There are cases holding that these instructions are more favorable than they should have been for the plaintiff; but we think there is no authority for the position that the court should not in his instructions inform the jury that certain misrepresentations, if made by the plaintiff and relied on by the defendant, were substantially untrue, and the defendant was induced by the falsehood to make the contract, when he otherwise would not have done so, they should find for the defendant. The materiality of the misrepresentation is submitted to the jury, within the meaning of the authorities, when the jury are left to determine whether it was substantial and induced the making of the contract. The instructions of the court fairly submitted to the jury the real issues in the case. Their finding for the defendant under the instructions was a finding on the merits of the controversy.

Judgment affirmed.

GOODIN v. HAYS.

(Court of Appeals of Kentucky. Oct. 5, 1905.) 1. ATTORNEY AND CLIENT-COMPENSATION — DISCHARGE.

Where an attorney under contract of employment is discharged without cause, he is entitled to recover for the services rendered the contract price, abated by such sum as reasonably represents the unperformed part of the services; and where he is discharged for cause he can only recover a reasonable compensation for his services, without regard to the contract price.

[Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 302.] 2. SAME-RIGHT TO DISCHARGE ATTORNEY.

Where an attorney under contract to ren-` der services for his client fails to pay over on demand the amount due the client under the contract, the client may discharge him.

[Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 122, 300.] 3. SAME CLAIM FOR COMPENSATION — SETOFF.

Where a client discharged his attorney under contract to render services, and sued him for the money collected by him under the contract, the attorney could set off his claim for services against the amount in his hands. [Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 276.] 4. SAME-INTEREST.

Where a client, after discharging his attorney under contract to render services, sued him for money collected under the contract and recovered judgment, interest should be allowed from the time the attorney collected the money, while, if the attorney recover judgment, interest should be allowed on the balance due from the time of his discharge.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Atorney and Client, § 283.]

"Not to be officially reported."

Appeal from Circuit Court, Garrard County. Action by Mary Jane Goodin against John T. Hays. From a judgment for defendant, plaintiff appeals. Reversed.

S. B. Dishman and Herndon & Swinebroad, for appellant. J. Smith Hays and Lewis Walker, for appellee.

HOBSON, C. J. In the year 1889 Mary Jane Goodin held two notes, one for $885 and one for $115, against solvent persons. Her husband was indebted to William Locke and J. H. Tinsley, who brought suit against him and attached the notes held by his wife. In that action a consent judgment was rendered subjecting the notes of Mrs. Goodin to the debt. She thereupon employed appellee, John T. Hays, and he filed a petition for her to set aside the judgment. The circuit court sustained a demurrer to the petition, and he took an appeal to the superior court. On the appeal the petition was held good. No further contest was made in that action, and on the return of the case to the circuit court the consent judgment was set aside and the original action was then tried. The circuit court held that $724 of the notes belonged to Mrs. Goodin, and adjudged this much of the fund to her, but subjected the remainder of the fund to her husband's debt. She then appealed to this court, and it was held on the appeal that she was entitled to the whole fund. The controversy up to this time had simply been between her and her husband's creditors. She then filed suit against the makers of the notes. The sureties, who were the solvent parties, pleaded that they had been released by novation. A trial was had on this issue, resulting in a judgment in her favor. The sureties appealed the case to this court, and it was here affirmed, with 10 per cent. damages; they having superseded the judgment. Appellee, John T. Hays, was her attorney in all this litigation. He collected from one of the sureties on August 9, 1899, about 10 years after he was first employed, $793, which was half of the larger note, with interest. It would seem that he could have collected the entire debt from this surety, but undertook to collect the other half of the debt from the other surety, and in doing this got into litigation with him in which the Burety was successful. Out of the $793 which he collected, he paid Mrs. Goodin $100. paid to the clerk of this court $24.63, and to Mr. Smith Hays, who had been employed to assist him in one of the trials, $43.74, leaving a balance in his hands of $624.63. He refused to pay any of this money to her, and she thereupon discharged him as her attorney, and brought suit against him to recover the money. She testifies that the contract between them was that he was to charge her $100, and that, when the second appeal was taken to this court, he said that he was having more trouble than he thought with the case, and that she ought to pay him $40,

He

$50, or $60 more, and she said, "Let it be $50," and that this was all she had ever agreed to pay him, and that he had agreed at one time to pay her $340 out of the funds in his hands. He denied all this, and said that she agreed to pay him $100 to get the consent judgment set aside, and that she agreed to pay him additional sums for taking the several appeals, and finally it was agreed between them that he was to have $150 and a sum equal to the interest on the notes accrued or to accrue in full of all his services in the matter. This she denied. It appears in the proof that she also paid Judge Pryor a fee of $50 for arguing one of the appeals in this court, and that she paid appellee from time to time different sums to cover his expenses in coming here to attend to the appeals, amounting to perhaps as much as $50. She has also paid costs, except so far as she has recovered them. The jury found for the defendant, and she appeals.

In Henry v. Vance, 111 Ky. 72, 63 S. W. 273, this court said: "The relationship of attorney and client is so peculiarly one of confidence and reliance that it would not do to require a party to continue in his service one whom he distrusts, or whose capacity he no longer believes in, nor to permit the attorney, under such circumstances, to continue the relationship, where the lack of confidence would seriously impair his efficiency and interfere with his full opportunity to serve the party and the court as his office requires. That the client has the right to discharge his attorney at any time, with or without cause, even in a case where a contingent fee has been agreed upon, cannot be well doubted. Mechem, Ag. 856. If the discharge is for cause, the question of fee may become eliminated, or give to the client even a right to an action over. If the discharge is without cause, and after the attorney entered upon and performed part of the services, he will undoubtedly be entitled to recover at least to the extent of the value of the services rendered. But generally the attorney should be relegated to an action to recover on quantum meruit, where he has been prevented by the client, or other fact not his fault, from fully discharging the services contemplated by his contract. Moore v. Robinson, 92 Ill. 491; Duke v. Harper, 8 Mo. App. 296; Quint v. Mining Co., 4 Nev. 304; Scobey v. Ross, 5 Ind. 445; Telegraph Co. v. Semmes, 73 Md. 9, 20 Atl. 127; Wilson v. Barnes, 13 B. Mon. 330; and Bank v. Barclay, 60 S. W. 853, 22 Ky. Law Rep. 1555. In the case at bar, if the question of fraud in the procuring of the contract were eliminated, the question should be submitted to the jury as to what, under the circumstances, would be a reasonable compensation to appellees for the services actually rendered before notice of their discharge. And in estimating such value the jury should consider the extent of services rendered, and those to be rendered, allowing the contract price, abated by such

sum as is reasonably represented by the unperformed part of the labor." The instructions which the court gave did not follow the rule laid down in that case. Under the evidence the court should have told the jury that they should determine from all the evidence what the contract between the plaintiff and the defendant was, and that they should allow the defendant a reasonable compensation for the services actually rendered before he was discharged by her, and in estimating such value the jury should consider the extent of the services rendered and those to be rendered under the contract, allowing the contract price, abated by such sum as reasonably represents the unperformed part of the labor, if the defendant was discharged by the plaintiff without cause, but that, if he was discharged for cause, then they should only allow him a reasonable compensation for his services, without regard to the contract under which the services were rendered, and that if he had collected money for her, and failed to pay over to her on demand money that was due her under the contract, then she had a right to discharge him. The jury should also be told to offset whatever they allowed the defendant on account of his services against the amount in his hands, and to find a verdict for the party entitled thereto according as the balance may fall. If they find for the plaintiff, they should allow interest from the time the defendant collected the money, and, if they find for the defendant, they should allow interest on the balance due him from the time he was discharged.

Judgment reversed, and cause remanded for a new trial.

ALEXANDER, Revenue Agent, v. AUD et al. (Court of Appeals of Kentucky. Sept. 28, 1905.)

1. TAXATION-REGULARITY OF PROCEEDINGSPLEADING-PRESUMPTIONS.

Under Ky. St. 1903, §§ 3760, 4030, providing that no fact officially stated by an officer shall be called in question, except in a direct proceeding, and that a tax deed shall be prima facie evidence of the regularity of the proceedings, an allegation in a pleading that the tax collector has certified certain fts gives rise to the presumption that the acts certified to have been performed, as well as all other acts required to be done to support them; and hence a pleading attacking the validity of such acts is bad, unless it shows affirmatively that the acts were not done or that some essential was omitted.

2. SAME SUIT TO ENJOIN COLLECTION-PETITION-SUFFICIENCY.

In a suit to enjoin the sale of lands which had been bid in by the state for taxes, a petition alleging that at the time the sale to the state was made the taxpayer had enough personal property to pay the taxes, but not stating the character and value of the property, was fatally defective.

B. SAME-SALE OF LAND-FAILURE TO LEVY ON PERSONALTY.

Under Const. § 171, and Ky. St. 1903, § 4019, making all property not specifically exempt liable to taxation, section 4021, creating a

lien for taxes, and section 4143, declaring that if the tax is not paid by a certain time the sheriff shall distrain the property of the taxpayer, and from its sale pay the taxes to the state etc., the failure of the sheriff to levy upon a landowner's personalty to collect taxes assessed against the land does not render a sale of land for taxes invalid.

4. SAME-SUIT TO ENJOIN SALE-NECESSITY OF TENDER.

Under Ky. St. 1903, § 4036, declaring that if any person shall purchase property sold for delinquent taxes, and the sale shall be set aside for irregularity, the purchaser shall have a lien on the property for the amount of taxes and costs paid by him etc., plaintiffs, in a suit to enjoin the sale of land which had been bid in by the state for delinquent taxes, must tender the unpaid taxes.

5. SAME PARTIES.

Under Civ. Code, Prac. § 25, all the taxpayers of a county cannot join in a suit to enjoin the sale of lands bid in by the state for delinquent taxes on the various grounds, not common to all, that the personalty of the taxpayers should have been distrained before resorting to the real estate, that the description in the levy made by the sheriff or in the lists of sale returned by him was insufficient, that taxes for which the sales were made were barred by limitation, etc.

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

Suit by J. B. Aud and others against George H. Alexander, as revenue agent. From a judgment for plaintiffs, defendant appeals. Reversed.

M. J. Holt, for appellant.

O'REAR, J. From time to time the sheriffs of Daviess county have reported sales of certain parcels of real estate in that county to the state for taxes assessed against the owners. The Auditor directed appellant, as revenue agent for the state, to sell these lands and to cover into the treasury the proceeds of sales. This suit was brought by 19 plaintiffs, each of whom owned separate tracts, listed separately for some of the years in question, suing on their own behalf and on behalf of some 1,170 other plaintiffs similarly situated, who were not named in the caption, but whose interest, it is alleged, is identical with that of the other plaintiffs. An injunction was sought against appellant and the Auditor of Public Accounts, restraining them from selling the lands, or any of them, on the alleged grounds that the sheriff's reports of sales were insufficient in their descriptions to identify the parcels sold by him, and on the further ground that some of the taxes had in fact been paid, and that others were barred by limitation. But the main ground advanced is that, at the time the sheriff sold the land for taxes, each one of the owners then had personal estate in that county enough to have satisfied the distraint. It is asserted by plaintiffs that in consequence the sheriff's sales were void.

By the Constitution (section 171) and statutes of this state (section 4019, Ky. St. 1903), all property in this state not specifically exempt is liable to a uniform tax for purposes

of state government. A lien is created by the statute (section 4021, Ky. St. 1903) to the state, as well as to the county and municipality where located, for the tax. This lien continues for five years. Section 4021, Ky. St. 1903. Real property is assessed for state taxes, called the "revenue tax," by the county assessor of the county where the land is located. Section 4049, Ky. St. 1903. The sheriff by virtue of his office is tax collector (section 4129, Ky. St. 1903), and it is his duty to collect the tax at the time it is due, and to promptly pay it into the state treasury (section 4143, Ky. St. 1903). If the tax is not paid by the 1st of July of the year for which it is due, it is the duty of the sheriff to distrain the property of the taxpayer, and from its sale to collect and pay the taxes to the state. Section 4149, Ky. St. 1903. If there is no other bidder at the sheriff's sale, he is authorized and directed by the statute to buy in the property so sold for the state at the amount of the accumulated tax and costs. Section 4152, Ky. St. 1903. The taxpayer is then given two years within which to redeem the land from this sale by the payment of the delinquent tax, interest, and certain penalties and costs. Section 4152, Ky. St. 1903. A failure to so redeem vests the purchaser, whether the state or another, with the fee-simple title to the land. Section 4154, Ky. St. 1903. Then it is that the Auditor of Public Accounts is authorized to direct the sale of the lands so bought in for the state, or enough thereof to pay to the state the tax, interest, penalties, and costs of the proceeding. Section 4154, Ky. St. 1903. It was under these several statutes that appellant was proceeding when arrested by the restraining order, and finally by the judgment in this case.

To clearly present the case, it is necessary to state what is admitted, either expressly or tacitly, by the petition. It is stated that all the plaintiffs, as well as those for whom they sue, are citizens of Daviess county, Ky.; that the lands mentioned in the suit, and named in appellant's advertisement of sale, are all situated in that county; that the lands had been assessed for taxes in recent years, amounts of which were stated, against the then owners of the lands, and that the taxes had not been paid; that the sheriffs then in office had advertised the lands for sale within the time prescribed by the statute, because the taxpayers had not paid their current taxes, and had offered them for sale at public outcry as advertised, and that, no one else offering to bid the amount of the tax due on each tract named, it was stricken off to the state, and so reported by the sheriff in the list he was required to return and did return to the county court clerk's office of his county (section 4152, Ky. St. 1903); that more than two years had elapsed since such sales and report, and that the lands had not been redeemed from such sales; that appellant was the duly appointed and acting

revenue agent for the state of Kentucky, and as such had advertised these lands for public sale at the direction of the Auditor of Public Accounts, and was proposing to sell enough of each lot or tract to reimburse the state its delinquent taxes assessed against each lot or tract, including penalties and costs of sales. All the foregoing, while not specifically admitted in detail, is so far admitted by express statement, or by a failure to negative the fact, that it is to be deemed as admitted by the petition.

Public officers, who are required to discharge an official duty and to make a certificate or return thereof, are presumed to have truly done all that is certified and all that they were required to do to make the certificate true. Sections 3760, 4030, Ky. St. 1903; Smith v. Ryan, 88 Ky. 636, 11 S. W. 647; Graves v. Hayden, 2 Litt. 65; Hickman v. Skinner, 3 T. B. Mon. 211; Terry v. Bleight, 3 T. B. Mon. 272, 16 Am. Dec. 101; Blight v. Banks, 6 T. B. Mon. 207, 17 Am. Dec. 136; Currie v. Fowler, 5 J. J. Marsh. 152; Oldhams v. Jones, 5 B. Mon. 458; Bodley v. Hord, 2 A. K. Marsh. 244; Board of Councilmen v. Mason & Foard, 100 Ky. 48, 37 S. W. 290. This is as true of tax collectors as it is of other officers. When it is stated, therefore, that the tax collector has certified to certain facts, they are deemed to have been done, as well as all other acts necessarily required to have been done to support them, till the contrary is shown. A pleading which attacks the validity of an official act is bad, unless it shows affirmatively that the act was not done, or that some essential was omitted which goes to the vitality of the act. Belknap v. Clark, 10 Ky. Law Rep. 872.

This brings us to consider the allegations of the petition which attack the verity of the sheriff's return, and which undo, as it is claimed, his action. It is charged in the language of the petition that: "In each attempted sale as set out in said bill [sale bill] said sheriff's act was void; that every step taken by him therein was void; that the owner of each of said tracts of land at the time of said attempted sale, and during all the time for six months before, had in Daviess county, Ky., tangible personal property more than ample out of which said sheriff could have made the state's and county's claim for taxes and costs of collection due to them from said delinquents, and all of which was known to the sheriff at the time he took each step in making said sale; and for these reasons each step he took in selling each tract of said lands was absolutely void, and the state of Kentucky acquired no title by said attempted sales, nor by any of them." Stripped of its conclusions of law, which are to be treated as so much surplusage (section 119, Civ. Code, Prac.), this averment amounts to this: That at the time the sheriff sold the land of the delinquent taxpayer the latter had, in the opinion of the pleader, enough tangible