xt70zp3vt865_165 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Brown, W.L. v. Harkins, Joseph D. and Walter S text Brown, W.L. v. Harkins, Joseph D. and Walter S 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_18/Folder_19/0001.pdf 1916-1919 1919 1916-1919 section false xt70zp3vt865_165 xt70zp3vt865 Y“ I ' _ F‘Tfi‘n’" 4" ~ “. _ ? ff‘ I" T 3’" F
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SECURITY TRUST & SAFETY VAULT CO. B LD G.
LEXINGTON. K (.
June 11th, 1919.
Judge Walter S. Harkins,
Prestonsburg, Kentucky,
BROWN V2. HARKINS.
Dear Sir:-

We have your favor of June 9th. enclosing check
of the Bank of Josephine on the First National Bank of
Cincinnati, Ohio, for four thousand, two hundred and
fifty seven and 50/100 ($4357.50) dollars, for which we
thank you.

We note your instructions to apply same in extinr
guishing the judgment against yourself and to apply the '
excess of this payment, plus the eBCCC.CO recently remitted
by you, on that part of the judgment against your son,
Joseph D. Harkins.

we also note you say that you were going to help
him pay the balance of the judgments against him and wculd
like us to rive until July 15th, to raise the money.

On the same day you wrote, June 9th, we mailed you
a copy of the calculation based on the judgment of the
circuit court entered on the 7th, the judgment of November
1916, the dismissal of the first appeal and the affirmance
of the second appeal. That calculation showed that applying

. the credit of $2000.00 with $4.32 interest added, left a
balance as against you of $3283.50, and that the balance
due on the calculation against your son, after applying the
credit of $325.00, was $4897.05, making the total balance
$8179.55, as of June 17th, 1919. Applying the remittance
herein acknowledged $4257.50 to that amount leaves a balance
now due as of June 17th, 1918 of $3922.05.

It is true that the payments made by you,as herein
stated, extinguish your liability under the judgment of the
Fayette Circuit Court of November 15th, 1916, but you will
recall that you are surety upon both the supersedeas bonds
in the Court of Appeals superseding the judgment as to your
son, Mr. Joseph D. Harkins, and consequently your liability

' is joint.

We hope to hear from you by early mail as to whether
the calculations we have submitted are in your judgment
correct, barring only an allowance to you of some seven
days interest by reason of the payment acknowledged by this
letter.

 If no account be taken of this it may serve to
correct the error which we made in the computation of
interest from September 10th, 1912, to November 15th, 1916,
on the judgment of the circuit court to ascertain the amounts
upon which damages were to be computed in that the same should
have been computed to the date of the last supersedeas,

May 27th, 1919. If you agree with us then the balance
remains as of June 17th, $3923.05.

With reference to the extensions you ask until
July 15th. in View of the payments you have made showing
a disposition to discharge this liability promptly, if you
as surety for Mr. Joseph D. Harkins on the supersedeas
bondSWill write us a letter requesting an extension, the
same not to effect your liability on the supersedeas bonds,
we will take the responsibility of not issuing any execution
or writ of venditioni exponas until July 1st, 1919, because
this will save you considerable expense collection through
the hands of the sheriff, as well as additional fees in the
Court of Appeals.

We sent you statement of the costs in the Court
of Appeals and we will this day remit to the clerk of the
court the appellee‘s costs in each case in order to
protect you from any execution for the costs issuing from '
that court, and suggest that you might also save little
additional costs by sending to the Clerk of the Court of
Appeals $23.20, the costs taxed against the appellants.
This suggestion we make simply for your consideration, as
effecting you personally.

We hope that the extension we have offered to
make conditionally will be ample time for Mr. Joseph D.
uarkins and yourself to raise the balance on this claim.

Yours very truly, Z
Dict, TTF-H

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IV.“ ‘. (I likarl' .13: '07:. .

 :.leth ' '
- CLERK OF COURT OF APPZLS
_ FRANKFORT. KY.. , ____. _ 140Lfi_vi 191g
REC I. D OF@@W
, :1... , l_ 4/ __ [Q22 :jEOLLARS
FOR ’11/'..; A /VJ4M‘; égflw
~ [Mi / g ./x / 24/ 5% ,
__, kac c. A.
. _gx i, WAD. c.

 “dr-
TAXATION QF COSTS
' R. o. Moi/;i/ZQ FAYETTE CIRCUIT COURT

M274--.» ___---I9I_S_

-_Qflnghwununuuu -.Plaintiff , r "\ . \ ‘
Mabfi/ _ _ _ -_ -84.<___-Defendam ‘

Plaintifl's Costs \ Defendant's Costs
Clerk's Fees, 1. H. Carter________-_-_- 5-17:5 Clerk‘sFeegTHmW‘ $_____._7_(7‘

Clerk's Fees, 1. c. Rogers Clerk's Fees, J. c. Rogers

Sheriff's Fees Sheriff’s Fees

State Tax -_._______--____,____.___- ________ Taxed Attorney Fee_____.___________ --__---

\Taxed Attorney Fee ._-__-_-___-___.. ___“--- Corresponding Attorney_____________ --__-___

Corresponding Attorney ________--_-_ __-_____ Guardian ad Litem --__-_______,__,_ ._______

Guardian ad Lirem-_,__-______-_____ Depositions

Depositions __________ ______-___._- -_-___" Commissioner -_-_____-__-__________ ________

Commissioner Advertising

Advertising _____.__-______--__--,__ __-.____ Witnesses_____ -_-_________________ __-_____

Witnesses____-____.-_-___-___--_ __ -_-___ JuryFee_-._________,-___-_---_.___.. ________

, JuryFee ._-------______---____-__-_ .__“--. -_-_____-_-_____-____-______---___- __,.--"

Total Total

Grand Total-_-.._____.H_-___,,_--...._,____$___-____
. Attest:

 WZN (077/, . j/[fifim . 7:70,! (II/b
2%Mllm7/ Igfi-ZZ'ILWWIIG
$;l//I//V?J.
S ECURITY TRUST & SAFETY VAULT C0. 8 LD G.
LEXIN GTON. KY.
July 50th, 1919.
Welter S. Barkins, Een.,
Prestonsburg, Kentucky,
Deer Sir:-

We have yours of July 28th.

In view of the desire of Mrs. Brown and the views
of associate counsel, we will be assuming some reSponsibility

in granting the extension you ask. In view of the manifest
effort on your part to pay the judgment we have concluded
to grant the extension upon condition that we receive a
letter from you an or before August 4th, approving our
calculation, or showing wherein there is an error.

In reaponse to your request we are enclosing you
an attested copy of the judgment entered by the Fayette
Circuit Court upon the filing of the mandate: also taxation of
clerkflscosts accrued since the filing of the mandate, being
for the sum of $7.25 to this date; also enclosing you
receipt of the Clerk of the Court of Appeals for $59.20,
costs in the Court of Appeals of our client, t 1.50 of which
was for copies of the supersedeas used in the Circuit Court
as a basis for the judgment rendered upon the mandate.

On June 7th, we mailed you a copy of the judgment
on the mandate and on the same day mailed one to your
attorney, Mr. Edge, being the judgment which was entered on
the 9th day of June, 1919 by the Fayette Circuit Court.

You will find the attested copy enclosed a duplicate
of the carbon sent you June 7th.Clerk's fees for same seventy-
five cents.

For your further convenience we are sending you
duplicate copies of our calculation mailed you on June 9th.
and we have supplemented same as modified by the payments
you have sentus: showing the balance due as of August 92nd,
1919. the date to which you asked extension,amount then
payable $2291.02.

We must insist that we must have your approval
of our calculation by the date named, August 4th, 1919.
or a showing from you wherein there is error.

_ We await your prompt reply.
Yours very truly, L’L
“ (::i974dé4fllt/ FEEZE"““<—’>
,;3 Diet. TTF-B

 Liza/iflz/I/fl/IQ/LZTZ/na/r‘
.2?/”yr“
sacumTYTausrasAszTyVAULTco.aLoc.
LEXWGT°NK¥ August 4th, 1919.
Mr. Walter S. Harkins,
Prestonsburg, Kentucky,
Dear Sir:-
We have yours of the 8nd. inst. enclosing your
check on the Louisville National Banking Company
for $735.00 as a credit on the Brown Judgment, Q
for which we thank you.
We regret to hear of your necessity for a
surgical operation and trust that it may not be
serious and that your recorery may be rapid.
You do not say how long Mr. Joseph D. Harkins
will be away. You gentlemen have had fully sixty
days in which to go over our calculation. We certainly are
entitled to know whether it is in your judgment right or
wrong. We trust‘iE/have your approval of this calculation
or a showing wherein it is wrong on or before the 10th of
this month.
Yours very truly, I
- $2,“ g H V W
Diet, TTF—H /”———’\

 .,fj. fllffl/fla . 1.75/21,» 1512/11/91
%Wl2€;flfi/ yjrémuara
__Zé/wm P/M.
SECURITY TRUST 5: SAFE/TY VAULT CO. 5 LD G. Alguat 29th) 1919.
LEXINGTON."1Y.
Judge Walter S. Harkins,
Pre st onsburg, Ky. ,
BROWN V, HAHKINS & HARKINS.
Dear Sir:- «

Referring to our telephone conversation last
night calling your attention the final payment was to have
reached us August 88nd, and had not been made, and in which
you said your son, Joe, would go over our calculation
to—day, and you would pay balance to morrow, beg to
advise that unless We receive: on or before noon September
lst, 1919, full settlement we will direct execution and
venditioni expense to issue.

We trust this may not be necessary.

Yours truly,
Wm / 7
Diet . TTF-H Vfi

 2
WALTER S. HARKINS, ET AL., - - - - Appellants,
versus
W. L. BROWN’S ADMX., - - - - — L - Appellee. _
PETITION FOR REHEARING. '
HARKINS & HARKINS,
, Preetonsburg, Ky.
7 Wzsmmsnn-Bom: C0., mconouran. Lomsvnu. KY. .
' I:
7'

 Court of Appeals of Kentucky.
WALTER S. HARKINS, ET AL., — — — Appellants,
versus
W. L. BROWN’S ADMX., - - - - — Appellee.
PETITION FOR REHEARING.

While we appreciate the fact that rarely a Peti-
tion for Rehearing is of benefit or effective, never—
theless, on the other hand, we also know that the
judgment rendered in the case by the lower court,
and its affirmance in this court, is an injustice to us;
and in a last endeavor to prevent such injustice being
done, we feel that it is proper to present for the con—
sideration of the court the views we have as to the
same. In so presenting the same, we endeavor to
approach the matter, not as one of personal interest,
but rather from the point of View of disinterested
counsel.

From a consideration of the opinion in the case
we gather the impression that the decision of the
court is predicated upon the fact that the corre-
spondence and telegrams passing between the plain—
tiff and the defendant, Joseph D. Harkins, sustains

 v
2
the claims of the plaintiff that there was an agency [I
agreement between them relative to the sale of the 2
property referred to in the petition. A considera— : ,
tion of such telegrams and correspondence, we insist, i
shows that at divers times both before the contract ‘ j
of sale was made by Joseph D. Harkins, and after E
the execution of such contract, the plaintiff was ap— ,2
plying to Joseph D. Hal-kins for authority to sell his ' 1
half interest in the property, and at no place does it i
appear in such telegrams or letters that any claim 11
was made that Joseph D. Harkins was acting as l
agent for the plaintiff, or had any such agency au— jg '.
thority. We have from time to time made careful t; 3,
study of the rules of interpretation of instruments, ; i‘
both from the legal and the psychological point of ' :
view; and it is a matter of difficulty, arising from t f
such studies, for us to comprehend or understand J
that SEEKING AUTHORITY AS AN AGENT {g f,
has a tendency to or does evidence the EXISTENCE i
OF AGENCY; on the other hand, it appears to us, ,
in conformity with every rule of interpretation with i
which we are familiar, that SEEKING AUTHOR- '
ITY AS AN AGENT negatives the idea of any
EXISTENCE OF AGENCY, and shows conclu- . ,
sively that such relation did not exist at the times
claimed, or, as we know, never existed. In fact, it '
would seem that the maxim “Expressio unms est ’
exclusio alterius” was never more applicable in the
matter of proper interpretation of facts and condi—
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11
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f 1 1 1 . 3
1 tions than here, and that the expressed request for
authority on the part of the plaintiff (at a time when
he later claimed such authority in fact was existent)
_, excludes any idea that there was any agency agree--
1 I i 1 ment between the parties.
' 1 The entire fact, so far as the plaintiff ’s interest
t in such property is concerned, is that the defendant,
1 1 Joseph D. Harkins, acted unwisely in relying upon
11 his verbal promise, agreement and offer to sell him
1 his interest in said property, and relying upon such
11 verbal offer of sale, made a contract for the sale of
1 the entire property for his entire use and benefit, and
1 sold the same “short.” While it is not subject to
1 argument that it was an unwise step 011 his part to
" s0 sell the property without having the verbal offer
of sale reduced to writing, still there was no impro-
‘I priety in so doing, and he took the chance of the
1 , plaintiff carrying out, in good faith, the offer he had
1 made. Such “short” sales are made frequently in
the business world without censure for so doing. or
the intervening purchaser being charged with the
F relation of agency to the original vendor, or being
“a, responsible to such original vendor as his agent. As
1.1; we understand the rule, the only responsibility that
‘5 would exist would be as to the purchaser of the prop-
erty, should the contracting party be unable to carry
out and complete his purchase, by reason of the sell—
er’s inability to deliver title to the property con—
? , tracted to be conveyed. In the event the contract of
W sale had been completed, it would then have been nec-
1‘1 111

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essary for Joseph D. Harkins to have secured from f i
. the plaintiff the title to the remaining half of the l
property and conveyed the same to his contractual :
vendor, or else been responsible in damages to such E
vendcc; but under the facts as we know them to exist, ‘ l
and as we insist the evidence shows, when measured
by the established rules of interpretation, there was ‘ I:
no agency relation with the plaintiff, and no liability i
to him. ' 5:
As stated, supra, property, both real and per— I '
sonal, is frequently sold “short,” and in much larger 9)
amounts than here involved. As a matter of illus— ;‘v
tration, at the time the cantonments were being ,A‘
placed throughout the country, a client of ours, own- i 3:",
ing but a few acres of land near Petcrsburg, Va, , :
made contract with the Government to furnish it l :.,
several hundred acres of land for such cantonmeut; fl
to furnish it with water, sewerage, lights, electric I if;
railway service and steam railway service in addi— M
tion to that then existent. At the time he made the , ‘1‘,
contract, he did not even have a verbal offer of sale “ «4;,
or lease of the required lands, he did not have either it
the water, sewerage, lights, electric railway service , “f;
or steam railway service, or any contracts written or S ,3»
otherwise for the same, and yet he delivered the prop— -"
erties according to contract with the Government, ‘
and we cannot conceive that he is now subject to be 1%
held liable to the parties from Whom he secured such ' l
properties, either upon the idea of existent agency, l
, or be created as an agent for them, by their ratifica— l ,,l
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,
, 5
,7 tion of a condition never existent. If we understand
f the rule correctly, the liability would be to the other
, i party to the contract in the event of inability to per—
1, form the contract, and not to the person or persons
1 from whom the property was to be acquired.
‘ It is stated in the opinion that the actions and
K ‘ correspondence between the parties “* * * can
5 y' neither be reconciled with the good faith and fair
1 dealing joint owners owe to each other * * *.”
i ‘ We are not aware from the previously reported cases
‘ that the mere relation of joint owners of. property
f imposes upon either any greater burden respecting
: i the jointly owned property than would exist if they
i were not such joint owners. From our understand—
? ing of the reported cases there is no limitation upon
1‘ joint owners dealing with each other respecting the
, jointly owned property, or preventing one joint
, owner from acquiring the interest of the other joint
i J owner, or requiring the purchasing joint owner to
j _ disclose to the selling joint owner matters respecting
f the jointly owned property which will render the
> same of value to him. Purchasers of property do not
\ usually acquire the same for the mere pleasure of
“swapping dollars,” but because of some fact that
" they know, or believe they know, that renders the
‘ property of more value than that which they are pay—
ing for the same; and if a purchaser is required to
‘ acquaint the seller with the special conditions which
, in his judgment renders the property more valuable
‘ than the price which is being asked for the same, then
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 6 i
there would be but few purchases and conveyances
of real estate. If it is now the law of this State that
one joint owner of property is under any more obli-
gation to the other joint owner than he would be or I
is to a stranger, then we can see that the courts are i I
going to be busily engaged for some time to come in "
the matter of suits for partition and division, where I
the property is susceptible of division, or for the sale j
of the property and partition of the proceeds where I
the property cannot be divided. Wc own many tracts ;
jointly with others, or interests in tracts; but if good ’
faith or fair dealing will require the acquaintance
of the other joint owner with plans for development I
which we work out for our own advantage and pre- "
vent our dealing with the other owner and acquiring
his interest (or rice 'rcrsa, hc acquiring ours), then
there only remains the necessity of instituting an 5
action for division of the property. have the same
divided. and then the negotiations can be carried on ,2.
as between strangers, and without obligation to so i
communicate such information as may be obtained I;
relative to such property. We submit that the mere :
relation of joint owners of property does not require
such acquaintance, or impose any responsibility or
criticism upon the other joint owner for failure to
make such acquaintance.
In the opinion it is said “* * * and as W. S.
Harkins admits he got three-fourths of the $12,500.00 j
or $9375.00, without a legal consideration therefor .
and with knowledge that it was a payment on the i
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 7
~. sale of the whole property which he knew was owned
jointly by his son and plaintiff, it is manifest he can-
not complain that he is required to refund to plain—
i tiff so much thereof as was his and not J. D. Harkins,
‘.‘ 4‘ even though he did not know his son was selling" ap-
‘ pellee’s half interest as agent, and mistakenly be-
: l‘ lieved he had the right to sell the whole as his own
’ under a verbal option.”
: It seems to us that there is a distinction proper
to be made here, as to the rule of. law applicable.
which the court has entirely overlooked. It is ad—
mitted in the record that the appellant, Walter S.
Harkins, knew that Joseph D. Harkins made eon—
’ tract for the sale of the whole of the property; on
the other hand, it is denied, and there is no evidence
‘_ to show to the contrary, that he knew or had infor—
‘- mation that Joseph D. Harkins was making such sale
as the agent of the platntz'fi”, as alleged in the peti~
tion. If we correctly understand the rule of law ap-
plicable, it may be stated thus: If the appellant,
Walter S. Harkins, knew that Joseph D. Harkins
was selling the whole of said property for himself
‘ and as agent of the plaintiff, then in the event such
agency was established, Walter S. Harkins would be
responsible to plaintiff for any amount given to him
over and above the sum which was the property of
Joseph D. Harkins; on the other hand, if \Valter S.
Harkins did not know that Joseph D. Harkins was
selling the Whole of said property for himself and as
agent of the plaintiff, then notwithstanding whatever
1‘
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 8 1‘
amount he may have received from Joseph D. Har— , f
kins, with or without any consideration, he would I .'
only be rcquircd to account for the same to tho plain- ,‘
tiff in the want of flu? insolrmzcy of Joseph D. liar— .
kins, which condition is not alleged in thc petition, (Ii ,
nor does it exist. We believe this distinction to bc ‘
well founded in the books, to bc elementary, and that '7‘"
by reason thereof the judgment must be rcvcrscd as ;
to Walter S. Harkins, and a fm'fiorz', the entire judg- :
ment. '
Thcrc is still anothcr ground why this judgment
should not be affirmcd or rcquircd to be paid, and 1
that is, that in thc Goodrich—Lockhart Company casc, ‘ 5
rcfcrrcd to in thc icstimony hcrcin. the United States ;
District Court has adjudged a rccovcry against the '
appellants herein growing out of this samc sale and a
contract with Scars. It is true that this judgmcnt
does not appear as a part of the record herein. not i
having been rendered at the time of thc trial hcrcof, ;
but the court takcs judicial noticc of such judgmcnt; i
and thcrc would be no equity or justicc in a situation 1‘
that would rcquirc the paymcnt of the full amount , i
paid on said contract by Scars, to the Goodrich Lock-
hart Company, and onc~half of thc same amount to 5
the appellee herein ; such a condition would be unjust, ';
opprcssivc and incquitablc. If the court should be ,
of the opinion that the relation of agency cxistcd bc- i
tween appcllcc and Joscph D. Harkins, which has i _
been at all times and still is consistently denied, then I,
it is our understanding of the law that the appellee i '
i i p
i g

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1 would be bound as to the claimed portion of such pay-
l ment on said contract by the judgment in the Good—
rich—Lockhart Company case, and would not be en—
E titled to be paid anything on account thereof; other—
”! wise, the result would be that the appellants would be
paying to the Goodrich Lockhart Company the full
d; amount of such payment on such contract, not