Nunn v. Citizens Bank

JUDGE GUFFY delivered the opinion oe the court. The appellee instituted this action in the Shelby Circuit Court to .recover judgment for the sums of $100 and $400, evidenced by two notes executed by appellant to John Flinner, payable at the Fármers’ & Traders’ Bank, in Sbelbyville, Kentucky. [264] It is alleged that the notes were indorsed by said Flinner, and discounted before maturity. The answer admits the execution of the notes. Rut it is alleged in the- answer that the payee of the notes, John Flinner, was at the time said notes were ■executed, a peddler and hawker and dealer in patent rights; that the consideration for the notes, if there was any consideration, was a patent right, and that they were given for the right to sell a certain patent gate in parts of Kentucky, Tennessee, West Virginia, and Indiana; that the notes did not have written or printed across the face thereof the word's “Peddler’s Note;” that said notes are therefore void. The court below sustained a demurrer to the answer, and rendered judgment for the amount claimed, and appellant prosecutes this appeal. It is the contention of appellant that by the provisions of section 84, subd. 3, p. 345, Acts 1891-93, the notes in question are void. Said section reads as follows: “All notes given for articles or rights sold by a peddler shall have written or printed across the face, the words, ‘Peddler’s Note.’ To such notes all defenses may be mad’e as against the original holder, whether the same be placed upon the footing of a bill of exchange or not; and all contracts for articles or rights sold by a peddler without license, and all notes given for such articles or rights not having the endorsement across the face, as hereinbefore provided for, shall be null and void.” The validity of the act in question was fully discussed in a very able and exhaustive opinion delivered by Judge Burnam in Bohon’s Assignee v. Brown, 19 Ky. L. R., 540, [41 S. W., 273]. The appellant in the case supra, being a national bank, [265] had discounted the note sued on, which note was made negotiable and payable at a bank in this State. The court, in the opinion mpm, held the note to be void and uncollectible, which doctrine was again adhered to upon a second appeal. 20 Ky. L. R., 1496, [49 S. W., 450]. The judgment in the case at bar was rendered before the decision in Bohon, &c. v. Brown, supra. It is, however, insisted for appellee that the act in question is unconstitutional, because in conflict with section 51 of the present Constitution of the State; that the statute relied on by the appellant is embraced or included in the act of the Assembly entitled “An act relating to revenue and taxation;’'’ and it is argued that section 34 of the said act is void, because it is not germane to or connected with the subject-matter embraced in the title. It will be seen from an examination of the act relating to revenue and taxation, which is chapter 103, Laws of Kentucky, 1891-93, that it is an extensive act, and divided into various articles' and subdivisions. The section relied on by appellant is found under subdivision 3, tit. “Peddlers.” It has long been the custom to require license fees to be paid by peddlers, and alsu to define and prescribe their duties and fix their responsibilities; and it seems to us that the section relied on by appellant is not at all in conflict with section 51 of the Constitution, and not at all calculated to mislead any person. It has often been held by this court that the provision of section 37 of the former Constitution, which provision is the same as that relied on by appellee, should not be technically construed, but should be construed so as to prevent the evils it was designed to guard against. [266] The act under consideration was designed to induce or compel peddlers to obey the law thus enacted for revenue-purposes; and it can not be doubted but what the Legislature had the, right to require the words “Peddler’s Note” to be written across the face of such notes, or else such notes should be null and void. It seems clear to us that the contention of appellee is untenable. . • It is, however, contended for appellee that the statute, if valid at all, only makes the note void as between the parties. We t-hink this contention of appellee is in direct conflict with the plain letter of the law. It is further insisted- that it was the duty of appellant to insert the-words “Peddler’s Note.” It, however, seems to us that it was the business of the payee to prepare such á note for the signature of the payor as would be legal and valid.' It results from the foregoing that the court erred in sus: taining the demurrer to the answer. The judgment appealed from is reversed, and the cause remanded, with directions to overrule the demurrer, and for proceedings consistent with this opinion. The whole court sitting, CHIBE JUSTICE -HAZELRIGG and JUDGE DuRELDE dissenting.