
    CASE, 12. — ACTION BY MARY CAIN AGAINST THE CITY OF LOUISVILLE.
    May 25, 1909.
    City of Louisville v. Cain
    Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division),
    Thomas R. Gordon, Judge..
    Judgment for plaintiff, defendant appeals.—
    Reversed.
    1. Intoxicating Liquors — Bonds of Dealers — Requisites and Sufficiency. — A bond given by a liquor deale'% which does not name any sum to be -forfeited on failure to comply with the law, can not be enforced, although the sureties in justifying istate that they have property of the value of $5.00, as such sum was not carried by inference into the bond, and it did not appear that the city issuing the license had fixed by ordinance any penal ,sum to -be inserted in suoh bonds.
    
      2. Courts — Appellate Jurisdiction — Kentucky—Amount of Judgment. — The Court oí Appeals has jurisdiction of an appeal from a judgment for $137 against the defendant, who has attempted in 'good faith to file an amended answer setting out a counterclaim of $500, and had reasonable grounds to believe that it had a cause of action on the counterclaim.
    3. Intoxicating Liquors — Revocation of License — Recovery of Unearned Portion of Pee. — Under Ky. St. Sec. 3029, providing that upon the surrender of a license the board shall make a reasonable allowance for the unexpired term, one to whom a license has been issued can not recover the unearned portion of the fee after the license has been revoked for violation of the law.
    CLAYTON B. BLAKEY and ELMER C. UNDERWOOD for appe’lant.
    POINTS AND AUTHORITIES.
    1. If the License Board of the City of Louisville had no jurisdiction to revoke appellee’s license, she could have disregarded its orders, or, by injunction or prohibition, could have prevented the enforcement of its decrees.
    2. If the License Board of the City of Louisville had jurisdiction to revoke appellee’s license, her remedy is by appeal.
    3. Where a liquor license has been revoked for a violation of law, the delinquent saloon keeper can not maintain an action to recover the unearned portion of the fees paid by him for his license. Wood v. School District, 115 N. Wl. 308; Curry v. Township of Taiwas, 45 N. W. 381; 84 Mich. 355; City of Fitzgerald v. Wichard, 61 S. E. 227; 130 Ga. 552; Melton v. Moultrie, 114 Ga. 462; 40 S. E. 302; Anderson v. City of Galesburg, 118 111. App. 525; Parrent v. Little, 58 Atl. 510; McGinnis v. Inhabitants oí Midway, 57 N. E. 210; 176 Mass. 67; Scalzo v. Sackett, 62 N. Y. S. 820.
    4. The fact that the appellee was fined in the police court for the same violation of law for which her license was revoked does not confer upon her the right to recover the unearned portion of the license fees paid by her, nor is the refusal to allow such recovery the infliction of a double penalty for the same offense. City of Paducah v. Jones, 104 S. W. 971.
    5. Where a saloon keeper has broken the conditions of his bond by violating the law with respect to the sale of liquor, a cause of action anises in favor of the city against the saloon keeper and his sureties.
    EDWARDS, OGDEN & PEAK for appellee.
    
      1. This being an ordinary action and law and facts submitted to the court without the'intervention of a jury, and no separation of conclusion of law and facts, no motion for a new trial, no bill of exceptions or evidence, the only question to be considered on the appeal is the sufficiency of the pleadings to support the judgment. Harper v. Harper, 10 Bush, 451; Beeler v. Sandidge, 20 L. R. 1581.
    2. Neither the statute nor charters of cities of the first class have any -provision with respect to the amount of the bond to be executed -by an applicant for liquor license. Ky. Statutes, Secs. 3035 .an:d 3031.
    3. The bond ton. which the appellant seeks to recover by the amended answer, which the trial court refused to permit to he filed, must be tested by tbe letter thereof, and not the intendment; and there being no stipulated amount of recovery fixed in the b.o-nd for violation thereof, tnere can be no recovery on same. Bragg v. Murray, 6 Munf. (Va.) 32; EYerett v. Stecker, 6 Oregon 55; Copeland v. Cunningham, 63 Ala. 394; Churcn v. Noble 24 111. 291.
    4. The city had the right by ordinance to- require one procuring a license to sell spiritous liquors to execute bond in a stipulated amount, but the ap-pellant, city, having failed to adopt such an ordinance there can he no recovery on the bond set up in the amended answer. Paducah v. Jones, 31 L. R. 1203; Commonwealth v. Ginn, 23 L. R. 526; Begler v. Paddy, 16 N. Y. 469.
    5. Ah amendment to a pleading which -presents no defense will not he permitted to he filed over -the objection of the adverse party. Patrick v. Sweeney, 5 Bush, 421.
    6. The -only question to be determined by this appeal is the sufficiency of the pleading to .support the verdict, and the pleadings are -amply sufficient to support the verdict. Ky. -Statutes, Secs. 3034 and 3029; Scott v. Board -of Trustees Town of New Castle, 116 S. W. 788.
    7. The appellant, city, ought not, under principles of -good morals -or law, revoke a license and retain the unused portion thereof. Scott v. Board of Trustees Town -of New- Castle, 116 S. W. 788.
    8. The statute expressly provides that a reasonable allowance for the unexpired term of license shall be made by the license hoard upon a surrender of the license. Ky. Statutes, 30-29.
   Opinion op the court by

Judge Nunn

— Reversing.

Appellee obtained a license from appellant authorizing her to retail liquors in the city -of Louisville for a term of -one year, -beginning with August 5, 1907. .About the 1st of September of that year she was arrested tried and convicted for violating the liquor laws by selling a glass of beer on Sunday. Immediately thereafter the license board glaive appellee notice to appear before it on the 9th day of September to give reason, if any 'she had, why her license should not be revoked for the violation of the law on her part. It appears, that the board heiatrd the matter and revoked her license, and she did not appeal therefrom as provided by section 3034, Ky. St. After this she tendered and offered to surrender her license as a liquor dealer and demanded a return of the unearned portion of her license fee tinder section 3029, Ky. St. (Bussell’s St. Sec. 987), which was refused. She then instituted this action to recover same. The city filed its answer on the 11th day of April, 1908, controverting appellee’s claim by the first paragraph, and to the second paragraph the court sustained a demurrer. Thereafter on the 10th day of October, 1908, the city tendered and offered to file an amended answer and counterclaim and a cross petition agiainst appellee and the sureties on her bond, which was executed under ‘section 3031, Ky. St. seeking to recover from them the sum of $500. The bond is as follows: “Whereas, Mary Oain, residing at No. 1100 Eowan street, in the city of Louisville, Ky., has. applied for license to retail liquors at No. 1100 Eowan street, in said city: Now we, the aiaiid Mary Cain, as principal, and Edwin G. Binder, of No. 1908 Baxter street, and Jacob Fisher, of No. 3518 Grand street, in said city, as her sureties hereby covenant to and with the city of Louisville that if the said license is gi anted to the said Mary Cain she will comply with the requirments of the laws during the existence of said license. Witness our< hands this 22d day of June, 4 907. Mary Cain. Edwin Gr. Binder. Jacob Fisher.” The court refused to allow the 'amendment to be filed. The city excepted. The cause was tried, and the court rendered judgment in behalf of appellee for the sum of $137, which it found to be the unearned portion of the license fee.

It will be observed that there is no sum named in 'the 'bond which was to be forfeited in case Mary Cain failed to comply with the requirements of the law. Appellant’s counsel insist that as the sureties, in making- affidavit as to their solvency preparatory to ‘signing the bond, stated that they had property subject to sale of the value of $500, and by inference it was carried into the bond', and therefore the parties to the obligation were liable for the pen'alty of $500, as appellee had violated the law with regard to the sale of liquor. We cannot agree to this construction of the statute. The. general rule is that sureties can only be made liable by the terms of the obligation which they execute. You can not reach them by mere inference. City of Paducah v. Jones (126 Ky. 809) 104 S. W. 971. 31 R. 1203. It does not appear that the city of Louisville had fixed by ordinance any penal sum to be inserted in such bonds, as had been done by the city of Paducah in the case just cited. Therefore we are of opinion that the lower court did not err in refusing- to allow this pleading to be filed.

Appellee’s counsel contends that this court has no jurisdiction of the appeal from the judgment 'of $137. This would be true i'f that was the only matter to be considered on the appeal, but 'appellant presented a counterclaim of $500 of which this court has jurisdiction. The precise question presented here was before this court in the case of District of Highlands v. Michie, 107 S. W. 216, 32 R. 761. In that case Michie sued the city of Highlands for the sum of $150. It controverted the claim an'd presented a counterclaim for $200. The court, on motion of Micliie, struck the counterclaim from the pleading and record, to which the city excepted. A trial was had, and Michie recovered $100. In considering that case the court s'aid: “It is suggested in the brief for appellee that this court is without jurisdiction to entertain the appeal, because the judgment is less than $200. This theory overlooks the fact that th¿ defendant is entitled to a trial upon the sufficiency of its counterclaim, which was stricken from the record, and this carries with it the right to review the soundness of the judgment in favor of the plaintiff, although less than $200 in amount. Co-Operative Manufacturing, Produce & Home Co. v. Rusche (Ky.) 99 S. W. 677.” 30 R. 790. If it had been made tolappear that appellant in this case did not believe it had a cause of action against appellant and her sureties on the bond referred to, and only presented the counterclaim with the view of giving this court jurisdiction of the appeal, its claim would be disregarded by this court; but believing that its counsel acted in good faith in the matter and had reasonable grounds to believe that it had a cause of action on the bond, we think it has a right to have the lower Court’s ruling’ reviewed. In the ciase of Smith v. C. & O. Ry Co., 118 Ky. 825, 82 S. W. 410, 26 R. 758, Smith sued for the value of a horse killed, and fixed it at $150. The testimony showed that the horse was worth about that sum. At the conclusion of the testimony he discovered that the court was about to give the jury a peremptory instruction to find against him, and he then filed an amended petition asking an additional $75 in damages. This court held that the amendment was a sham one, and for the purpose of giving this court jurisdiction of an appeal, and disregarded it.

The only question left for determination is: Did appellee have a right to recover the unearned portion of the license fee she paid? Her counsel contend that she had such right under section 3029, Ky. St., which is, in part, as follows: “A license granted shall be good for only one year and shall not be transferable without the consent of the license board. Upon the surrender of a license, the board shall make a reasonable allowance for the unexpired term,” etc. We construe this to mean that the person must have ¡a license —that is, he must have a right to sell liquor at the time of the surrender — otherwise he has nothing to give up. In the case at bar, according to the agreed state of facts, appellee’s license had been revoked by the board before she attempted to make the surrender; that is, her right to sell liquor under the license she had obtained was at an end, she had no more power to sell liquor than if she had never obtained a license, and, of course, had nothing to surrender which would entitle her to recover that part of the license fee unearned.

For these reasons the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.  