
    Von Cotzhausen v. Barker.
    (Decided June 20, 1913).
    'Appeal from Carroll Circuit Court.
    1. Contract — Animals—Keep.—In an action to recover on a contract for the keep of stock, where defendant claimed that the stock was to be kept on shares, evidence examined and held to sustain the finding of the chancellor in favor of plaintiff.
    
      2. Pleading — Consolidated Actions — Defect in Pleading Supplied BY Others. — Where several causes of action between the same parties are consolidated, allegations defectively stated in or totally omitted from one of the pleadings may be supplied by the averments contained in another, and a defect in the pleadings will be held to exist only where, considering them as a whole, a material averment is found to he omitted.
    3. Parties — Corporations—Evasion of Corporation Laws. — Where a corporation, for the purpose of evading the corporation laws of this state, turns over to its president certain livestock, with power to make contracts with reference thereto, neither the corporation nor the president can complain of the fact that the corporation is not made a party to action against the president to recover for their keep, where the latter did not ask that the corporation* De made a party.
    4. Principal and Agent — Personal Judgment Against Agent — When Allowed. — Where a corporation, for the purpose of evading the corporation laws of this state, turns over to its president certain livestock, with authority to make contracts with reference thereto, and he, in his individual capacity, contracts for their keep, he thereby becomes personally liable on the contract.
    
      p Animals — Agister’s Lien — Livestock—Contract for Keep — Time for Payment Not Fixed. — Where the contract for the keep of livestock is terminable at the will of either party, and no time for payment is fixed, it cannot he said that the keep is due at any particular time, and a keeper who still has the stock in his possession, is entitled to a lien and to retain the stock until his claim is paid, although claim covers a period of more than six months.
    6. Parties — Appearance.—One who files a demurrer to a petition and has an order entered controverting of record the allegations of the petition, enters his appearance.
    
      7. Action — Several Canses — Consolidation — Submission.- — Where plaintiff brings several successive actions for the keep of stock, and it is admitted that he kept the stock during .the time covered by the fourth petition, it is not error to consolidate that case with the others, and submit it for judgment, where the only issue between the parties is whether or not the stock were to be kept on the shares or as boarders, and it appears that several hundred pages of proof has been taken on this question and mo claim is made by the' defendant that he had any additional proof which he could have taken but was not given an opportunity to do so.
    McQUOWN & BECKHAM and ARTHUR W. COX for appellant.
    A. C. VAN WINKLE for appellee.
   Opinion op the Court by

William Rogers Clay, Commissioner

Affirming.

Plaintiff, R. M. Barker, brought four1 suits against tbe defendant, Alfred Yon Cotzbausen, to recover certain amounts alleged to be due for tbe keep of four stallions, thirteen mares and four yearling colts. In tbe first suit judgment was sought for keep of said stock from April 17, 1909, to November 10, 1910, in tbe sum of $1,045.50, subject to a credit of $402.50. In tbe second suit judgment was sought for $200 for keep of a portion of said stock from November 10, 1910, to December 12, 1910. By tbe third suit judgment was sought for $417.50 for keep of a portion of said stock from December 12, 1910, to February 12, 1911. By tbe fourth suit judgment was sought for $598.91 for keep of a portion of said stock from February 12, 1911, to August 25, 1911. In each of these suits a lien was asserted on said stock for the amount of their keep under Section 2500, Kentucky Statutes. Demurrers were filed to each of the petitions and overruled. The material averments of the first three named petitions were controverted by answers. After the demurrer to the fourth petition was overruled, the affirmative allegations thereof were controverted of record. The cases were all consolidated and on final hearing plaintiff was given a judgment against defendant for the sum of $1,849.91, with interest, and adjudged a lien on the stock, which the commissioner was directed to sell. ' From the judgment so entered the defendant appeals.

Briefly stated, the facts are as follows:

In April, 1908, plaintiff was engaged in farming in Carroll County, Kentucky. The farm belonged to his mother. Defendant was president and general manager .of the Progress Bine Ribbon Farm, a Wisconsin corporation. A meeting between plaintiff and defendant took place at Milwaukee. At that time certain contracts were drawn up between defendant and the Richlawn Stock Farm, stated in the contracts to be a co-partnership composed of Y. A. Barker, W. E. Fisher and plaintiff. These contracts are of great length and provide for the keeping on shares of stock to be sent by Yon Cotzhausen to the Richlawn Stock Farm. There was also a contract by which it was proposed to organize a corporation which should acquire the Richlawn Stock Farm, and the Blue Ribbon Farm should furnish it stallions and mares for breeding purposes. Plaintiff was to be the general manager of the new corporation. Farms and agencies for the sale of the stock thus bought were to be established at Lexington, Memphis and other points. When plaintiff returned home, his mother, Mrs. Barker, and W. E. Fisher, his brother-in-law, declined to ratify the contracts. Plaintiff advised Yon Cotzhansen of this fact. In this letter he asked if he could not make some personal deal with defendant. On April 28, 1908, defendant answered plaintiff’s letter, and expressed his regret that the negotiations could not be carried out. In April, 1909, defendant came to Lexington. He telegraphed plaintiff that he had directed a car of horses sent to Madison, Indiana, and wished plaintiff to call there for same. Plaintiff claims that he advised defendant that he could not in any event take any more than four of the horses on the shares, and he would only take these provided, on inspection, they appeared to be the kind that he could use. Plaintiff says that when he went to Madison to inspect the horses he found them in wretched condition, although a letter written about that time to defendant would seem to indicate the contrary. Thereupon plaintiff at once telephoned defendant that, he would not take the horses except as boarders. Defendant requested plaintiff to come to Cincinnati and go over the situation with him. He then told defendant the terms upon which he would keep the stock for the time being. Defendant acceded to these terms, although he stated at the time that the stock would be removed from the farm within a short period of time. Thereafter plaintiff repeatedly asked for shipping directions for these horses. On April 23, 1909,. defendant wrote plaintiff that he understood that the colts of that year belonged entirely to him free of cost. He claims in this letter that the confusion relative to the shipment was due in whole or in part to defendant’s failure to advise him that he would not accept the stock on shares. Thereupon plaintiff wrote defendant that he did not agree to take the stock on shares, and would not keep them on such terms. He then states the terms upon which he was willing to allow the stock to remain on his place, and informs defendant that if he does not wish the stock to remain there, to- indicate where he desires the stock shipped. ■ On May 18, 1909, defendant wrote plaintiff that he recalled the conversation they had at Cincinnati, and that while under the present arrangement he was bearing the burden of the keep of the horses, he would try to forget the unpleasant features of the matter and continue his friendly feeling for plaintiff. In this letter he enclosed a cheek amounting to $104 for the keep of the horses and the expense in connection with them. On May 26, 1909, defendant wrote that he understood that the colts for the present year were to belong to him free of cost. In all of his letters, however, he is still insisting that plaintiff handle the horses on shares or in some way or other. On June 27, 1909, plaintiff again informs defendant that he does not desire to keep the horses on shares. He further tells him that he is ready to ship the horses away unless the terms were satisfactory to defendant, and asks for shipping directions. On July 27, 1909, defendant paid plaintiff $83.95 in part settlement for the board bill of these horses. On November 8, 1909, defendant sent an additional check for the keep of the horses up to November 3rd, amounting to $112.

Defendant, in his testimony, explains the negotiations leading up to the contracts of April, 19Ó8. He says that Barker represented himself as having authority to enter into these contracts. Thereupon the contracts were signed and delivered. He claims that while nothing was done under the lease contracts at the time, he and Barker frequently corresponded with reference thereto. He picked the horses, and Barker prepared for them, and when the horses were finally sent to Barke'r, they were sent under the terms of the contracts of April, 1908. Defendant further says that not knowing what the provisions of the corporation laws of Kentucky were, he signed the proposed contract on behalf of the Progress Blue Ribbon Farm so" that the corpora-lion would not render itself liable to tbe Kentucky cor'poration laws. This fact was well known to Barker. He further claims that when he sent the consignment of .horses to Barker he «-distinctly understood that the horses were consigned under and by virtue of the provisions of the contract of April, 1908, and upon no other terms. He further claims that it was not until Barker actually got possession of the stock that the latter claimed that the stock was at his place upon any other .terms. He claims that the sums paid for the keep of the stock were advanced to Barker as a matter of accommodation because Barker had no money. He further claims that Barker knew that the stock belonged to the Progress Blue Ribbon Farm; that the bills were made out against it and actually paid by it. He produces many letters showing that he constantly brought to the attention of Barker the fact that the stock was kept under the original contract, and that Barker was not to charge anything for their keep,- but was to take care of the stock on shares.

It will be seen that the evidence as to the terms on which the stock were kept by plaintiff is very conflicting. Plaintiff testifies one way while defendant testifies the other. Notwithstanding their various contentions, the following facts clearly appear: Immediately after receiving the stock plaintiff notified the defendant that he would not accept them on shares. He further stated that if defendant did not like that arrangement to give him shipping directions. No shipping directions were ever given. Thereafter defendant’s letters not only show that he knew the stock were being kept as boarders, but knew the rates at which they were being •kept. Furthermore, he actually sent plaintiff several checks in payment for their keep. In view of these facts, we see no reason to disturb the finding of the chancellor in favor of plaintiff.

It is insisted that the statute gives a lien only in the event that the contract for the keep of the stock is made with the owner, and that the petitions in two of the cases do not allege that the defendant was the owner of the stock. It appears, however, that the petitions in the other two cases do allege such ownership. As the several causes of action are between the same parties, and were consolidated, the petitions should be read together and considered as one. The allegations defectively stated or totally omitted in one pleading are supplied by the averments contained in. another, and a defect in the pleadings will be held to exist only when, considering them as a whole, a material averment is found- to be omitted. Pioneer Fuel Co. v. St. Peter Street Imp. Co., 64 Minn., 386; Castro v. Whitlock, 15 Tex., 437.

It is further insisted that although the pleadings, taken as a whole, allege ownership by defendant, yet the proof utterly fails to show that the defendant was the owner of the stock in question, but does show that the Progress Blue Ribbon Farm, a corporation, owned the stock. It is therefore insisted that it was error not only to adjudge plaintiff a lien on the stock without making the Progress Blue Ribbon Farm a party, but also to render a personal judgment against defendant. Defendant himself states, however, that the stock was turned over to him to make contracts with reference thereto for the .purpose of evading the corporation laws of Kentucky. Having, for the purpose of evading the corporation laws of Kentucky, put the stock in defendant’s charge, with full power to make contracts with reference thereto, and having vested him with the* apparent ownership of the stock, neither the defendant nor the corporation will be heard to say that any of the corporation’s rights were prejudiced by the failure of the court to make the corporation a party, when the defendant did not ask that this be done. And having made the contracts in his own name in order that the corporation of which he was the president might not subject itself to any liability under the corporation laws of Kentucky, and credit having been extended to him in his individual capacity, he thereby rendered himself personally liable on the contract.

But it is insisted that the agister’s lien given by Section 2500, Kentucky Statutes, is subject to the laws and restrictions provided in the case of a landlord’s lien for rent, and that plaintiff has been given a lien for keep that was due for a longer time than provided by the statutes in the case of a landlord’s lien. In interpreting the landlord lien statutes it has been held that as between a landlord and other lien-holders the landlord cannot assert his lien for rent that has been due more than ninety days. As between the landlord and creditors not lien-holders, he cannot assert his lien for rent that has been due for more than 120 days. As between the landlord and the tenant, however, the landlord cannot assert his lien for rent that has been due for more than six months. Petrie, &c. v. Randolph, &c., 85 Ky., 351. In the case under consideration, however, the contract for the keep, of the stock was at will. While the stock were to be paid for at a certain rate per month no time for payment was fixed. That being true, it cannot be said that the keep was due at any particular time, or that plaintiff was given a lien for keep that had been due for more than six months. The stock still being in the possession of plaintiff, he had the right to. retain the stock until his bill for keep was paid. Sheth v. Brangman, 27 Ky. L. R., 395.

There is no merit in defendant’s.contention that he was not before the court in the fourth suit that was filed, and that the court erred to his prejudice in consolidating that suit with the others, and submitting the case for judgment. The record shows that he entered! his appearance to the fourth suit not only by filing a de-. murrer thereto, but by having the allegations of the petition controverted of record. It is admitted that plaintiff kept the stock for the time set forth in the fourth petition. The only real issue between the parties was whether they were kept on shares or as boarders. Several hundred pages of proof were taken on this question, and it is not seriously contended that defendant had any additional proof which he could have taken, but was not given an opportunity to take.

Judgment affirmed.  