author: JAMES, Justice.

text:
    John D. ROWE, Appellant, v. J. Gordon S. HARRIS, Appellee.
    No. 5884.
    Court of Civil Appeals of Texas, Waco.
    Jan. 11, 1979.
    Rehearing Denied Jan. 25, 1979.

      R. L. Middleton, Jr., Roger D. Bush, Dallas, for appellant.
    Rod L. Poirot, Thomas P. Earls, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal by the plaintiff from an instructed verdict in favor of defendant. We reverse and remand.

Plaintiff-Appellant John D. Rowe brought this suit against Defendant-Appel-lee J. Gordon S. Harris based upon a written construction contract, alleging that Harris had breached said written contract to Plaintiff Rowe’s damage in the amount of $6479.77; and in the alternative that Harris was liable to Rowe under Sections 17.46 and 17.50 of the Business and Commerce Code (commonly called the Texas Deceptive Trade Practices Act) for certain alleged deceptive trade practices and that Harris was thereby liable for treble damages and reasonable attorney’s fees.

Harris pleaded by way of defense that Rowe and Harris had reached an accord and satisfaction concerning the complaints made by Rowe, and in addition that the original contract had merged into the warranty deed executed and delivered by Harris to Rowe on July 7, 1976.

Trial was had to a jury, and after both sides had rested, the Defendant Harris moved for an instructed verdict, which motion was granted. Thereupon the trial court entered judgment that Plaintiff Rowe take nothing, from which judgment Plaintiff Rowe appeals.

On February 25, 1976, Rowe entered into a written contract with Harris wherein Harris agreed to build a home for Rowe in accordance with certain plans and specifications, for which Rowe agreed to pay Harris $96,760.00. Under the contract Harris was allowed 180 days from beginning of construction in which to complete same. Since construction actually began on March 12, 1976, Harris therefore had until on or about September 8, 1976, in which to complete performance, under the terms of the contract.

After construction was under way, Rowe asked Harris if an earlier move-in date could be arranged. Harris preferred not to rush completion too much; however, at first Harris told Rowe that he might get the house completed by June 10, 1976. Later on, Harris told him that June 10th would be too early but that Rowe could move into the home by July 10, 1976.

Therefore, the parties set up a closing date for July 7, 1976. At this last-named date there were certain items of construction that had not been completed. Rowe was in a hurry to move into the place because he had already sold his then-existing home and had agreed to give up possession thereof. Harris agreed to go ahead and close, with the understanding that he would finish up the incomplete items within 30 days after closing. On July 7, 1976, the parties entered into a written agreement called “Escrow Agreement,” the pertinent parts of which read as follows:

“ESCROW AGREEMENT
* * * # * *
“It is agreed by the undersigned parties to this transaction that the sum of $775.00 will be held in escrow by said Southwest Land Title Co., and the remainder of the proceeds, if any, are to be disbursed at this time. The funds escrowed hereunder are to be held in the amounts and until the following has been accomplished, to-wit:
$500.00 for items included on the attached list
200.00 for repair of the fireplace mantel
75.00 for repair of front door
$775.00 Total
“Southwest Land Title Co. is authorized to hold said deposit in escrow until the purpose of this agreement has been complied with at which time the deposit will be paid to J. Gordon S. Harris provided said Southwest Land Title Co. has received written approval of such payment from all parties to this agreement.
“In the event said written approval has not been received on or before 30 days from this date, then, a representative of Southwest Land Title Co. shall have access to said property to make inspection of same, and will be authorized to make disbursement after the above mentioned work has been completed.
“No liability or expense shall accrue against Southwest Land Title Co. by virtue of said company acting as escrow agent.”
******
Attached to the “Escrow Agreement” and being a part thereof is a sheet containing Rowe’s handwriting, which sheet was initialled by both Rowe and Harris, and which reads as follows:
“The amount of $500.00 will be put in escrow and remain for 30 days for following work to be completed. At end of 30 days any work not completed to owners satisfaction will be considered not completed and payment allocated for those items will be paid to John D. Rowe.
$150.00 1. Complete all paint, patching, touch-up finishing of cabinets, shelves, cleaning of F/place, brushing all cedar.
$150.00 2. Install vents, replace all cedar stripping under doors, repair facer board over family room, replace ft. door knob, patio knob, replace board on side patio.
$100.00 3. Complete yard work.
$100.00 4. Repair driveway.
$500.00
$200.00 5. Repair or replace mantel.
$ 75.00 6. Repair or replace ft. door trim & paint.
$775.00 Total.
John R.
C. R.
J. H.”

The closing which took place on July 7, 1976, was handled by the Southwest Land Title Co. At said closing Harris executed and delivered a warranty deed of the subject house and lot to Rowe, for which Rowe paid Harris $95,985.00, same being the agreed purchase price of $96,760 less $775.00 held back by the title company in accordance with the “escrow agreement.” The title company has ever since held this money in escrow, and has never released same to either Rowe or Harris.

After the closing and after Rowe moved into the house in question, Harris made some efforts to complete the items set out in the escrow agreement; however, it is undisputed that Harris never completed the items listed in said escrow agreement, within the thirty days or at any time thereafter. A few days before the 30 days (after closing) had expired, Rowe contacted the title company and requested that the $775.00 be paid to him (Rowe); however, the title company took no action and did not pay the money to either Rowe or Harris. The title company was never made a party to this suit, and from the record still holds the $775.00 in escrow.

Although Harris admits that he did not complete the items set out in the escrow agreement, Harris never tendered the $775.00 to Rowe, with this possible exception: After such sides had rested, and the testimony had been concluded, the parties entered into the following “stipulation”:

(By Counsel for Defendant Harris):

“Well, further, the Defendant Harris, and the Plaintiff Rowe would stipulate that in the event the Plaintiff Rowe does not recover judgment in this case, the Defendant Harris would stipulate that the funds now on deposit with the Southwest Land Title Co. in escrow in the amount of $775.00 will be refunded to the Plaintiff Rowe, and the Defendant Harris will execute all instruments necessary for the refund.”

As stated, the $775.00 has never been released, and is still held by the title company-

Upon Defendant’s motion, the trial court granted an instructed verdict in favor of Defendant Harris, and entered judgment that Rowe take nothing, from which Rowe appeals.

Plaintiff-Appellant Rowe complains of the trial court’s granting of the instructed verdict in favor of Defendant, contending that the evidence raises material fact issues that should have been submitted to the jury. We sustain these contentions, and reverse and remand the cause to the trial court for retrial on the merits.

In determining the propriety of an instructed verdict, we are required to view the evidence in the light most favorable to the losing party. Any inference which properly may be drawn from the evidence must be indulged against the granting of the motion. Conflicts, if any, in the testimony are to be disregarded. If the record reflects any testimony of probative force, either direct or circumstantial, in favor of the party against whom the verdict was instructed, we must hold the instruction to be improper. Testimony adverse to the losing party will be disregarded. White v. White (1943) 141 Tex. 328, 172 S.W.2d 295; Air Conditioning, Inc. v. Harrison-Wilson-Pearson (1952) 151 Tex. 635, 253 S.W.2d 422; McRoy v. Riverlake Country Club (Dallas, Tex.Civ.App.1968) 426 S.W.2d 299, NRE; Williams v. Frank Parra Chevrolet, Inc. (Waco, Tex.Civ.App. 1977) 552 S.W.2d 635, no writ.

Bearing in mind the above rules, as we must, and applying same to the case at bar, we are of the opinion and hold that the evidence raises material fact issues which should have been submitted to the jury. We will not undertake to point out all of such fact issues raised by the record, but only representative examples of issues which we think should have been submitted to the jury. For example, the escrow agreement is ambiguous, and to clarify same would require jury findings as to what the parties intended by the language employed in said escrow agreement. On the first page it provides that $775.00 is to be held in escrow, whereas on the second page it provides that $500.00 is to be held in escrow. On the first page there is a vaguely worded provision that the $775.00 will be paid to Harris if Harris completes the work within 30 days to Rowe’s satisfaction. However, the first page makes no provision as to what happens to the $775.00 if Harris did not complete the work within 30 days, which is precisely what did happen. On page two there is some language to the effect that the $500.00 held in escrow will be paid to Rowe if Harris fails to complete the work within 30 days, then work total-ling $775.00 is set out on page two, and it is impossible to tell which $500.00 worth of work the parties are referring to.

The motion for instructed verdict was predicated upon two defensive grounds pleaded by Defendant-Appellee, to wit, (1) accord and satisfaction and (2) merger.

In the posture in which we find the case at bar, in order to affirm this instructed verdict we would have to say that the Defendant is entitled to judgment as a matter of law, because the evidence conclusively establishes either (1) accord and satisfaction or (2) that the original contract was merged into the warranty deed. We believe the evidence raises material fact issues under both doctrines, that is, of (1) accord and satisfaction and (2) merger, and that therefore the instructed verdict was improvidently granted.

First, does the escrow agreement, without the payment of the $775.00 in question, constitute an accord and satisfaction as a matter of law?

“An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considers himself, entitled to; and a satisfaction is the execution, or performance, of such an agreement.” 1 C.J.S. Accord and Satisfaction par. 1, page 462; Slaughter v. Temple Lumber Company (Houston, Tex.Civ.App. 1st 1957) 307 S.W.2d 108, 114, NRE.

An agreement between two parties to give and accept something of value in satisfaction of a right of action which one has against the other is an accord, and the execution of this agreement is a satisfaction. The term “accord and satisfaction,” therefore, applies to the completed transaction, and constitutes a bar to any action on the original contract. Ensley v. Spickard (Dallas, Tex.Civ.App. 1950) 232 S.W.2d 780, 782, writ refused. As a general rule, an accord without a satisfaction does not bar. Columbian National Fire Ins. Co. v. Dixie Co-op. Mail Order House (Tex.Comm.App. 1925) 276 S.W. 219, 222, judgment adopted. The “satisfaction” in an accord and satisfaction is generally the performance of the new promise. However, a promise alone may be accepted as satisfaction. In that event, the intention of the parties is a controlling element, which is by its very nature a fact question. Accord and satisfaction, being dependent upon agreement, only occurs when the parties mutually assent to it, which again is a fact question. See Rutherford v. Page (Austin, Tex.Civ.App. (1968) 429 S.W.2d 602, 609, NRE; Anderson Development Co. v. Producers Grain Corp. (Eastland, Tex.Civ.App. 1977) 558 S.W.2d 924, 926, no writ, and the cases therein cited.

In the case at bar, there is nothing in the language of the escrow agreement that provides that such escrow agreement constitutes an accord between the parties. Therefore we are obliged to ascertain what the parties intended concerning this matter. Here the parties are in dispute. Rowe testified that this escrow agreement whereby the $775.00 was put in escrow for 30 days was merely an “incentive” to encourage Harris to expedite the completion of construction, and was not intended as an accord at all. To the contrary, Harris contended that the escrow agreement constituted an accord. Again, we have a fact question concerning the intentions of the parties. According to the above-cited authorities, if there is no mutual assent, there is no accord.

Even if we assume for the sake of argument that the escrow agreement constituted an accord, the evidence shows there has been no satisfaction, unless we can say conclusively that both parties intended that Rowe agreed to accept Harris’s promise to complete the work within 30 days as satisfaction, as opposed to Harris’s actual performance of the work. Here again, we have a fact issue as to what the parties intended.

Certainly Harris’s “stipulation” at the conclusion of the evidence to the effect that if Rowe recovered nothing in the suit that Harris would agree that Rowe is entitled to the $775.00 does not constitute a “satisfaction.” See McGehee v. Shafer (1855) 15 Tex. 198, 203, 205; McHaney v. Hackleman (San Antonio, Tex.Civ.App. 1961) 347 S.W.2d 822, 826, NRE; 1 Tex.Jur.2d “Accord and Satisfaction,” par. 41, p. 240.

With reference to Appellee’s defense under the doctrine of merger: Appellee asserts that the Appellant’s cause of action under the original agreement was merged into the warranty deed of July 7,1976. We cannot hold that the doctrine of merger bars Appellant’s cause of action under the original contract as a matter of law, because the application of the doctrine of merger depends upon the intention of the parties, which presents a fact question. Humber v. Morton (Tex. 1968) 426 S.W.2d 554, 556; 26 C.J.S. Deeds par. 91 p. 845.

For the reasons hereinabove set out, we reverse and remand the cause for retrial.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: HOWERTON, Judge.

license: Public Domain

text:
    Christine LAYSON, Hisel Rule, Roger C. Womack, Robert Anderson, Robert Faul, David Zachary and William E. Parker, Appellants, v. Rose BRADY, Property Valuation Administrator, Rose Scott, County Court Clerk, Reese Smoot, Sheriff, Department of Revenue of the Commonwealth of Kentucky, the Commonwealth of Kentucky and Robert F. Stephens, Attorney General, Appellees. Rose BRADY, Property Valuation Administrator, Rose Scott, County Court Clerk, Reese Smoot, Sheriff, Department of Revenue of the Commonwealth of Kentucky, the Commonwealth of Kentucky and Robert F. Stephens, Attorney, Cross-Appellants, v. Christine LAYSON, Hisel Rule, Roger C. Womack, Robert Anderson, Robert Faul, David Zachary and William E. Parker, Cross-Appellees.
    Court of Appeals of Kentucky.
    Opinion Rendered to be Published Oct. 27, 1978.
    As Modified Dec. 8, 1978.
    Rehearing Denied Jan. 5, 1979.

      Joseph J. Leary, Frankfort, for appellants.
    William S. Riley, Thomas A. Duke, Kentucky Dept, of Revenue, Frankfort, Joseph H. Conley, County Atty., Carlisle, Robert F. Stephens, Atty. Gen., Frankfort, for appel-lees.
    Before GANT, HOGGE and HOWER-TON, JJ.
   HOWERTON, Judge.

This is an appeal and cross-appeal from a judgment of the Nicholas Circuit Court declaring the 1977 tax assessments invalid on all properties where the assessments were increased without written notice to the owner, and providing that “the certification of equalized assessment issued by the defendant, Department of Revenue, is hereby set aside and held for naught.” The judgment further ordered the Kentucky Department of Revenue to make emergency assessments. The appellants and cross-appel-lees are property owners, and the appellees and cross-appellants include the assessor, the sheriff, and the Department of Revenue.

Both sides argue that the trial court had no authority to order emergency assessments, with which we agree. The appellants further contend that those property owners with voided assessments should forever be excused from paying taxes for the fiscal year affected by the judgment, which we find to be clearly wrong. The cross-appellants argue that the trial court erred by declaring any tax assessments completely void for lack of notice or on the basis that the reassessments were discriminatory. We agree with the cross-appellants and must therefore reverse the judgment of the trial court.

FACTS

On April 4, 1977, Rose Brady was appointed Property Valuation Administrator, hereinafter referred to as PVA, for Nicholas County, Kentucky. Mrs. Brady was appointed to fill a vacancy in that office, and although she had had no previous experience in appraising real estate, she had taken and passed the examination required of persons seeking the office of PVA.

Mrs. Brady was informed by officials in the Department of Revenue that the total assessment of residential property in Nicholas County was too low to comply with court standards for fair cash value or to be certified as meeting those standards by the Department of Revenue. Mrs. Brady, thereupon, attempted to reassess residential property located in and adjacent to the City of Carlisle and in the Lake Cárnico area of the county in order to increase the total residential assessments and to begin equalizing assessments within the county generally. The two areas were chosen for reassessment because they appeared to Mrs. Brady to be the most seriously underas-sessed and because of the compactness of those areas making them more accessible for a quick reassessment. The 1977 assessment program was behind schedule, and speed was of the essence.

Mrs. Brady requested the assistance of the Department of Revenue in making individual reassessments, and three men were dispatched to assist her in June 1977. The properties were evaluated by exterior visual inspection. One of the department representatives also made an examination of recent residential sales in Nicholas County. All properties in the two areas were examined, but not all assessments were increased.

Assessments on 632 parcels were increased. Mrs. Brady mailed notices of the increased assessments to 259 property owners by first-class mail. The only notices mailed were to those persons who had listed and valued their own property in the PVA office during January and February of 1977 and to the out-of-state and out-of-county taxpayers whose assessments were increased. The only notice given to other local property owners was accomplished by two notices in the local weekly newspaper published on July 13, 1977.

The tax rolls were opened for inspection as required by law, and approximately 300 property owners called or came into the PVA office to review their property tax assessments. One hundred eight (108) taxpayers filed appeals of their assessments to the Nicholas County Board of Assessment Appeals. Of the 108 appeals, 37 were taken by persons who had not received written notice of the increase in assessment on their property.

VOIDING OF ASSESSMENTS

The primary questions to be resolved in this action are whether the trial court erred in voiding a portion of the county assessments for 1977, and if so, what remedy is necessary to correct the situation. As to the first part of the question, we have concluded that error was committed for three reasons. First, an irregularity does not vitiate an assessment. KRS 132.650. Secondly, the requirement of notice does not apply to property owners who appeal an assessment increase even though their knowledge of the increase was not obtained from notice by first-class mail. Commonwealth ex rel. Reeves v. Elkhorn and Jellico Coal Co., 313 Ky. 764, 233 S.W.2d 508 (1950). Finally, there was no proof of discrimination in assessing the property which would violate either the Kentucky or U. S. Constitutions.

Mrs. Brady attempted to follow KRS 132.450(4) and gave written notice of an increase in assessments to those property owners who listed the value of their properties in 1977. She also mailed written notices to the nonresident owners. KRS 132.-450(4) provides:

If the property valuation administrator assesses any property ... at a greater value than that listed by the taxpayer or assesses any unlisted property, the property valuation administrator shall serve notice on the taxpayer of such action. The notice shall be given by first-class mail .

We interpret this section to require notification to a taxpayer for any increase in assessment. Even though a taxpayer has not appeared at the PVA office to list his own assessment for a current year, we conclude that the previously accepted assessment constitutes the continuing listing for or by the taxpayer. The assessment of unlisted property applies to previously unassessed or omitted property. See, KRS 132.310.

Notices were required, but failure to give the notices did not void the assessments. The assessments should have been permitted, and if any appeal or court action was then proper, it would have been reasonable to have followed the procedures established in KRS 133.120(5), which provides:

No appeal under this section shall delay the collection or payment of any taxes based upon the assessment in controversy. The taxpayer shall pay all state, county, and district taxes due on the valuation which he claims as true value as and when required by law, and when the valuation is finally determined upon appeal, the court or the Kentucky board of tax appeals shall certify the valuation to the county court clerk and the taxpayer shall be billed for any additional tax and six percent (6%) interest from the date when the tax would have become due if no appeal had been taken. The provisions of KRS 134.390 shall apply to such tax bill. (Emphasis added.)

Of the 632 assessment increases, only 259 taxpayers were given written notice. There were 373 violations of the requirement. The trial court voided the total assessments for each of those properties and taxpayers. KRS 132.650 provides in no uncertain terms that “. . . the failure of the property valuation administrator . to notify the taxpayer . . . of an increase of assessment . . . shall not make the assessment void.” The only part of an assessment which may be voided for lack of notice is the amount of the increase. Burnside Supply Co. v. Burnside Graded Common School, 260 Ky. 482, 86 S.W.2d 160 (1935).

Of the 373 assessment increases with notice violations, only 336 should have been reassessed at the previous amounts. Thirty seven (37) taxpayers appeared before the appeals board. The law is also settled that a property owner who is not properly notified of an increased assessment, but who has actual notice and appeals to the proper review board may not find relief for lack of notice. Reeves v. Elkhorn and Jellico Coal Co., supra. The purpose of notice is to allow the taxpayer to be heard. When he appears and is heard, the rights, which notice is to protect, are preserved. It was therefore error for the trial court to disturb the increased assessments for the group of 37.

It is not clear from the judgment of the trial court what emphasis was given to the findings of discrimination in assessments, because the court voided only the assessments which were increased without written notice. The court specifically found, “that only residential property was assessed and not business property or farm property, which was definitely discriminatory.” Another finding also provided that assessments “should be equalized as nearly as possible and made without discrimination.” The specific facts are not necessarily erroneous, but any conclusion of invalidating discrimination was error.

Our Supreme Court, in Standard Oil Co. v. Boone County Board of Supervisors, Ky., 562 S.W.2d 83 (1978), held that unequal treatment, under a law which is not itself unconstitutional, must amount to a conscious violation of the principle of uniformity before section 2 of the Kentucky Constitution or the equal protection clause of the fourteenth amendment of the U. S. Constitution will afford relief. There is certainly no evidence in the record which indicates a conscious violation of the principle of uniformity on the part of the PVA or the Department of Revenue. The PVA had reason to believe that residential property in Nicholas County was more seriously un-derassessed than either commercial or farm property. She first attempted to correct the assessments for residential property. The PVA stated in her affidavit that she intended to reassess the commercial and farm property as soon as she was able. Because of the time factor involved in assessing property, there must be some allowance given for lack of total and up-to-date uniformity of assessments, so long as the differences are not from an attempt to discriminate against any group. There is no indication that the PVA was violating KRS 132.690 or 132.700. Furthermore, it would be physically impossible for a local PVA to make on-sight inspections of all properties in a county within any year, considering the manpower and financial resources available for the task. We note in Borders v. Cain, Ky., 252 S.W.2d 903 (1952), that the assessor is not restricted to any particular method of evaluating property, except to assess the property at its fair cash value.

Mrs. Brady was apparently attempting to make or begin a systematic reassessment of all properties within Nicholas County. This court will not invalidate her assessments on the basis of any unfair discrimination.

THE QUESTION OF EMERGENCY ASSESSMENTS

Based on the conclusions already reached in this opinion, it is apparent that any order pertaining to emergency assessments would have been unnecessary. We also agree with all parties, however, that such an order was improper. KRS 132.660 authorizes the Department of Revenue to order an emergency assessment. The court may not compel the department to order such an assessment without the showing of some abuse of discretion on the part of the department. Reeves v. Jefferson County, Ky., 245 S.W.2d 606 (1951). The record does not indicate (1) that there has been a failure to make a regular assessment, (2) that assessment records have been mutilated or lost, (3) that a complaint has been made by owners of not less than 10% of the taxable property in the taxing district, or (4) that an investigation by the department has disclosed the assessment of property as so grossly inequitable or fiscally infeasible that an emergency exists. It was clear error for the trial court to order the Department of Revenue to provide an emergency assessment.

REMEDIES ON REMAND

The big problem is, where do we go from here. We are not fully aware of all the problems the judgment of the trial court has created, but we can be certain it has prevented the county government, the school district, the Commonwealth of Kentucky, and any other taxing jurisdiction in Nicholas County from collecting part of the ad valorem taxes due for the fiscal year beginning July 1, 1977. The judgment may have barred all ad valorem taxes on real property, since the judgment also invalidated the certification of equalized assessments issued by the Department of Revenue, which is required before a tax rate may be fixed. The local taxing authorities have had to borrow money to meet the financial requirements of necessary current operations.

Appellants argue that the taxes for 1977 are now forever barred, and that no reassessments should be permitted. To quote appellants’ counsel, “[T]he assessing authorities and the taxing authorities failed utterly in their respective duties to assess property in Nicholas County for 1977 and now it is too late. The moving finger has written. Not all the piety or wit of the Department of Revenue or the skill of its counsel may lure it back to cancel half a line. It is too late.” It is with great restraint that we merely ignore such contentions.

Counsel for the cross-appellants offered several reasonable proposals, but they were suitable only as immediate remedies and not for the situation which is now a year or more old. It was suggested that (1) notices be sent to those whose assessments were increased, but who did not receive notice; (2) the tax rolls be reopened for inspection for a reasonable time after the notices are mailed, and (3) the Board of Assessment Appeals be reopened to hear appeals from those who object to the new assessment after notification.

This action was a class action involving all property owners, and the judgment of the trial court also singled out those owners receiving notice of an increase as a separate class. We must therefore provide for all properties when prescribing the required remedy for this situation.

The assessments for all unaffected properties should be valued as previously assessed. The assessments for all properties with increased assessment whose owners did not receive notice and who took no appeal should be valued as assessed before the reassessment increase. The increase in assessment for 1977 was properly voided as to the property owners in that class. The increased assessments on all other properties where notice was given or an appeal was taken must be reinstated, subject to any relief the individual owners obtained through the tax appeal process. The total assessments must then be forthwith certified as required by law, and the tax bills must be issued for 1977 according to the. statutory provisions for omitted property and bills in chapters 132,133, and 134 of the Kentucky Revised Statutes.

In the event the assessing and billing process for 1978 or later years has been affected by the judgment, the statutory procedures for omitted property and omitted tax bills should be followed.

The judgment of the trial court is reversed, and this action is remanded for further proceedings consistent with this opinion.

All concur.


author: HOWARD, Judge.

text:
    KELLYGUARD SECURITY SERVICES, INC., Mid-City Shopping Center, Inc., Bowlanes, Inc., Mid-City Mall, Inc., and Eight Ball Billiard Club, Inc., Appellants, v. James Daniel CHURCH and Anthony Bowman, Appellees. KELLYGUARD SECURITY SERVICES, INC., Appellant, v. James Daniel CHURCH, Mid-City Shopping Center, Inc., Anthony Bowman, Bowlanes, Inc., Mid-City Mall, Inc., and Eight Ball Billiard Club, Inc., Appellees.
    Court of Appeals of Kentucky.
    Jan. 13, 1978.
    Rehearings Denied April 14, 1978.
    Discretionary Review Denied June 27, 1978.

      Guy E. McGaughey, Jr., Louisville, for Mid-City Shopping Center, Inc., Bowlanes, Inc., Mid-City Mall, Inc., and Eight Ball Billiard Club, Inc.
    Edward H. Stopher, William P. Swain, and Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, William S. Bowman, Stiles & Miller, Louisville, for Kellyguard Sec. Service, Inc.
    Larry B. Franklin, Louisville, for James Daniel Church.
    Hector E. Rose and Frank Haddad, Jr., Louisville, for Anthony Bowman.
    Before HOWARD, REYNOLDS and WILHOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Jefferson Circuit Court wherein a jury trial was had and the jury awarded damages in favor of plaintiff-appellee, James Daniel Church, for the total sum of $540,141.21. The liability was apportioned between the named defendants in the following manner:

Anthony Bowman 00.50%
Mid-City Mall 49.75%
Kellyguard Security Service, Inc. 49.75%

Both defendant-appellant, Kellyguard Security Services, Inc. (hereinafter referred to as Kellyguard), and defendants-appellants, Mid-City Shopping Center, Inc., Bowlanes, Inc., Mid-City Mall, Inc., and Eight Ball Billiard Club, Inc. (hereinafter collectively referred to as Mid-City Mall or when appropriate, individually by name), filed separate statements of appeal against plaintiff-ap-pellee, James Daniel Church (hereinafter referred to as Church).

Kellyguard filed a later appeal, No. CA-1221-MR, against Church, on an order amending the judgment, which appeal is to be heard with the instant appeal.

Church attempted to file a cross-appeal, No. CA-1075-MR, against Mid-City Mall and Kellyguard. By order dated June 21, 1977, the statement of facts, questions of law and argument contained in Church’s cross-appeal were stricken.

Two of the errors are raised in both the briefs submitted by Kellyguard and Mid-City Mall and will be discussed first. These errors are the failure to give an instruction to the jury on the contributory negligence of Church; and the errors in the instructions consisting of five alternative verdicts, which both parties say did not allow the jury to find solely against one party, but required apportionment.

In Heathcoate v. Bisig, Ky., 474 S.W.2d 102 (1971) the court makes this observation at page 104:

. As a matter of fact, it might be argued that Bisig and the other customers were all negligent in not fleeing the premises at the first sign of battle, but that issue was not raised and is not before us.

In Heathcoate, supra, the victim of the beating was first knocked out of his chair by the assailant and, after some interval of time, suffered a beating at the hands of the assailant and two other men. Clearly, the victim in Heathcoate, supra, had some forewarning that these assailants were antagonistic and was therefore, perhaps, contribu-torily negligent by not leaving the premises. In the present case, according to one version of the incident, Church was asked by Bowman to break up the fight in progress. Although Church may have assumed the risk that he would suffer a beating, we do not feel he was contributorily negligent in not leaving and thereafter being shot by his fellow “peacemaker”. Although the question of contributory negligence is ordinarily one for the jury, when the evidence leaves no room for difference of opinion among reasonable men, it becomes a matter of law for the court. Louisville & Nashville Railroad Company v. Scott, Ky., 432 S.W.2d 47 (1968).

The duties of Kellyguard, Bowman and Mid-City Mall were set out in the instructions to the jury. One of the verdict forms submitted to the jury reads as follows:

We, the jury, find the following defendants to be substantial factors in contributing to the injuries of the plaintiff and apportion their liability in the following percentages:
Bowman %
Mid-City Mall %
Kellyguard %

Another verdict form allowed the jury to find for all of the defendants and against the plaintiff, and another verdict form allowed the jury to find defendant Bowman solely responsible for the injuries to the plaintiff.

The jury was given the option of finding for Church and awarding him damages, and then further apportioning the liability between the defendants. By placing a zero by any defendant, the jury could have exonerated that defendant from any liability. In S. W. Corum Hauling, Inc. v. Tilford, Ky., 511 S.W.2d 220 (1974), the court, at page 224, states: “The verdict form did not expressly require apportionment; at the worst it was merely susceptible of being construed as so requiring.” We think that a reasonable jury understood it had an option not to find each and every defendant liable to Church. We feel there is no reversible error in the instructions heretofore mentioned.

Kellyguard has failed to preserve for this appeal its objections to the instructions concerning the definition of ordinary care. CR 51(3).

We will next discuss the claimed error by Kellyguard in that the instruction stated that it was Kellyguard’s duty to provide security for the entire Mid-City Mall, and in effect, directed a verdict against Kellyguard. The court’s instruction as to the duty of Kellyguard reads as follows:

It was the duty of the defendant, Kelly-guard, at the time and place concerning which you have heard evidence to guard the customers of Mid-City Mall in a diligent and reasonably skillful manner. This duty included the duty of the defendant, Kellyguard and its servants, to go into the posts, if any, assigned by its customer, Mid-City Mall, and to make the patrols, if any, requested by its customer, Mid-City Mall, and to observe the terms of its contract with reference to the qualifications of its guards employed by Kel-lyguard to guard the premises of Mid-City Mall including its pool room.
If you believe from the evidence that the defendant, Kellyguard, failed to exercise any one or more of the duties imposed upon it by this instruction and that such failure, if any, was a substantial factor in causing the shooting and injuries to the plaintiff, James Daniel Church, concerning which you have heard evidence, then you will find for the plaintiff against Kellyguard; but unless you so believe you will find for defendant, Kellyguard.

Conflicting evidence was presented by Kellyguard and Mid-City Mall as to Kelly-guard’s duty to provide a guard in the poolroom at the time Church was shot. We believe that the effect of this instruction was to tell the jury that Kellyguard did have a duty to guard Church at the time and place that the shooting occurred.

We feel that this instruction is erroneous since it assumes or has the appearance of assuming an essential fact about which there is conflicting or disputed evidence. Conley v. Foster, Ky., 335 S.W.2d 904, 906 (1960). We are therefore reversing this case for a new trial.

We note, in passing, that insufficient evidence was presented to pierce the corporate veil and group the four corporate defendants, Mid-City Shopping Center, Inc., Bowlanes, Inc., Mid-City Mall, Inc., and Eight Ball Billiard Club, Inc., together as joint defendants under the heading Mid-City Mall.

The issue raised in appeal No. CA-1221-MR, styled Kellyguard Security Services, Inc. v. James Daniel Church, et ah, has been rendered moot by the decision in this appeal.

This case is reversed and remanded for a new trial.

All concur.


author: GANT, Judge.

text:
    RELIANCE INSURANCE COMPANY, Appellant, v. The COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, et al., Appellees. DeSALVO CONSTRUCTION COMPANY, and United States Fidelity and Guaranty Company, Appellants, v. The COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, Department of Revenue, and Division of Unemployment Insurance, Appellees.
    Court of Appeals of Kentucky.
    Aug. 4, 1978.
    Rehearing Denied Sept. 29, 1978.
    Discretionary Review Denied Feb. 20, 1979.

      William M. Johnson, Frankfort, for Reliance Ins. Co.
    Michael L. Judy, Frankfort, for DeSalvo Const. Co.
    Joseph J. Leary, Frankfort, for U. S. Fidelity and Guaranty Co.
    Don Duff, Frankfort, for Ohio Operating Engineers Trust, etc. and Ohio Laborers Trust, etc.
    James R. Odell, Lexington, for Goodyear Tire & Rubber Co.
    Ryan M. Halloran, Frankfort, for Commonwealth of Kentucky, Dept, for Human Resources, Bureau of Social Ins., ex rel., Div. for Unemployment Ins.
    Alex W. Rose, Wayne J. Simon, Frankfort, for Commonwealth of Kentucky, Dept, of Revenue.
    Charles D. Moore, Jr., Dept, of Transp., Frankfort, for Commonwealth of Kentucky, Dept, of Transp.
    Charles G. Heyd, Bauer, Morelli & Heyd Co., LPA, Cincinnati, Ohio, for the Highway Equipment Co.
    Before GANT, HOGGE and WINTER-SHEIMER, JJ.
   GANT, Judge.

These are companion cases involving two construction contracts between the DeSalvo Construction Company, (hereinafter called DeSalvo), and the Commonwealth of Kentucky for an interstate highway through Kenton and Campbell counties. Appellant United States Fidelity and Guaranty Company was surety on the performance bond of DeSalvo for work done in Campbell County, and appellant Reliance Insurance Company occupied the same position with respect to work done in Kenton County. About June 30, 1976, DeSalvo defaulted on the completion of both projects and the respective sureties retained another company to complete the work under the provisions of their performance bonds. Prior to the default, DeSalvo had earned some $585,000 for work completed, which sums had not been appropriated or disbursed to the company. The Commonwealth of Kentucky, Department of Transportation, filed these actions in the Franklin Circuit Court for declaratory relief, moving the court to require claimants to interplead and to have the court determine priorities against this sum owed to DeSalvo. After such claims were filed, each of the appellees herein filed a motion for summary judgment, all of said motions being sustained, and these appeals resulted.

SET-OFF FOR TAXES AND UNEMPLOYMENT INSURANCE

The question which these two cases have in common is this: Does the Commonwealth of Kentucky have a right of set-off for taxes and unemployment insurance, under statutory law or equity, against funds in their hands which were due to a contractor at the time of default in preference to the claim of a surety which has completed the project under a performance bond?

In situations of this kind, there customarily arise three categories of funds which are subject to dispute. These categories are (1) unappropriated funds due by the government to the contractor pursuant to progress reports for work already accomplished prior to default; (2) retained funds, customarily 10%, which are withheld by the State pending completion of the project; and (3) progress payments made after the surety undertakes to complete the project pursuant to its performance bond with the contractor. The two cases before us fall under category one. It should be further noted that the bond in question was a performance bond, guaranteeing satisfactory completion of the project, and not a payment bond, guaranteeing payment of all labor and materials.

The controlling statute herein is KRS 44.030, which states:

Money not to be paid to state debtor.— No money shall be paid to any person on a claim against the state in his own right, or as an assignee of another, when he or his assignor is indebted to the state. The claim, to the extent it is allowed, shall be credited to the account of the person so indebted, and if there is any balance due him after settling the whole demand of the state such balance shall be paid to him.

This statute as presently worded was formerly indexed as Ky.Stat. 4701 and dates back to 1893. In construing the statute, the court in Long v. McDowell, 107 Ky. 14, 52 S.W. 812, 813 (1899), said: “And this provision of the law made it the duty of the treasurer to deduct such indebtedness from the claim sued on, before making payment to Julian [the creditor] or his assignee.”

Subsequently, in Stone v. Mayo, 21 K.L.R. 1559, 55 S.W. 700 (1900), the court stated: “It would seem, however, that this section was enacted for the express purpose of making the state a preferred creditor, and that public policy so requires.”

An earlier case of Johnson v. Auditor, 78 Ky. 282 (1879), would seem to be contrary. This was a case where a jailer had signed a bond for a defaulting sheriff and the state sought a set-off against funds due the jailer for feeding and housing prisoners. The court held that there should be no set-off under these circumstances because it would be against public policy when others had relied on these funds to furnish the food, etc. to the jailer but, by its own language, this case was to be narrowly construed to this situation. This case was clearly distinguished and limited in both Long v. McDowell and Stone v. Mayo, supra. The statute was amended following the Johnson case to its present form.

The present statute is clear and unambiguous and distinctly grants the right of set-off to the state.

EQUITY AND COMPARABLE FEDERAL CASES

The statutory law so lucidly set out in KRS 44.030 is but an extension to the government of the equitable right of set-off given to all persons. As the Supreme Court of the United States said in the case of United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947):

The government has the same right “which belongs to every creditor, to apply the unappropriated monies of his debtors, in his hands, in extinguishment of the debts due to him.” (Citing cases). 332 U.S. at 239, 67 S.Ct. at 1602.
And one whose own appropriation and payment of money is necessary to create a fund for general creditors is not a general creditor. He is not compelled to lessen his own chance of recovering what is due him by setting up a fund undiminished by his claim, so others may share it with him. In fact, he is the best secured of creditors; his security is his own justified refusal to pay what he owes until he is paid what is due him. 332 U.S. at 240, 67 S.Ct. at 1602.

Numerous federal cases have been cited by the appellants, all of which have reference to the Miller Act, 40 U.S.C. § 270a, and regulations propounded thereunder, which Act is comparable to KRS 44.030. Many of these cases related to payment bonds and not performance bonds, and all cases referred to retained funds — category two herein — and not to unappropriated funds due to the contractor at the time of default. The federal case most clearly in point is the case of Security Insurance Co. of Hartford v. United States, 428 F.2d 838, 192 Ct.Cl. 754 (1970). This case clearly distinguishes between the types of funds. It states that the surety, under the Miller Act, was entitled to recover from the retainage, free of set-off, on its performance bond but not its payment bond, but that the surety on the performance bond was “[not] entitled to recover free from set-off, any amount earned by, but not paid to, the contractor prior to the date the plaintiff [surety] took over the performance of the contract.”

Appellants further urge that the court should apply the “no debt” theory to this case. Contrary to the definition furnished us by the appellants, this doctrine arises where the contractor breaches the contract before the balance of the money due the contractor has become due, so that the contractor has no enforceable right to recover the balance and tax liens cannot be asserted against funds which have not been earned by the contractor. This relates to category three, above, and has no application here. See Wolverine Insurance Co. v. Phillips, 165 F.Supp. 335 (N.D.Iowa 1958).

The appellants further complain of the payment from these funds of certain taxes due and owing from the Little King Coal Company, which company was wholly owned by DeSalvo. Under the provisions of KRS 44.030, we know of no distinction between taxes arising from the project from which the fund was created and other projects or ventures by the same debtor. In fact, as stated above, we feel that KRS 44.030 is merely an extension to the government of the equitable right of set-off which belongs to every creditor, and in those cases it is seldom that the two debts arise out of the same transaction. When the same transaction is involved, this is referred to as recoupment.

GOODYEAR TIRE & RUBBER COMPANY

Appellee Goodyear sold and delivered to DeSalvo three earth mover tires and related equipment for use on the Kenton County project for the sum of $11,755.85. The affidavits and pleadings disclose that they were delivered to this project prior to default; that they were, in fact, used on the equipment thereon; that Goodyear properly perfected its lien and that no counter-affidavits to the motion for summary judgment denying these facts were ever filed by Reliance. Reliance contends that the supplies were not consumed, that they may have been diverted to the Campbell County project and that the Caterpillar scraper is not a “vehicle” within the meaning of KRS 376.195(3). We know of no statutory language or case law which requires the consumption of supplies furnished before a lien will apply. The lien right arises when the supplies are “furnished” for the construction of a public highway or other public improvement. KRS 376.210(1). KRS 376.195(2) does speak of consumption of material, such as gasoline, oil, grease, form lumber, etc., but these tires are supplies within the definitions provided by the statutes.

The fact of diversion is not shown by the record but is merely speculative on the part of Reliance. The tires were delivered to the Kenton County project and used thereon, which is sufficient. In fact, delivery may not even be necessary in some instances. The case of Grainger & Co. v. Johnson, 286 F. 833 (6th Cir.1923), in interpreting the word “furnished” as used in the Kentucky Statutes, held that the lien statute was satisfied when steel was fabricated and remained on the premises of the supplier. Even had the supplies been diverted, this was not the fault nor the responsibility of the supplier. Goodyear’s obligation ended when it delivered the supplies to DeSal-vo on the Kenton County project for use thereon.

The contention of Reliance that the scraper herein is not a “vehicle” is specious at best. KRS 376.195(3) defines supplies as including . . tires and tubes furnished for use on vehicles engaged in the performance of the work Appellants would have us limit this to passenger cars or trucks, which we feel is contrary to the intent of the statute. The types of vehicles necessary for the construction of a public highway far transcend this narrow definition.

PENSION FUNDS

Summary judgment was granted by the lower court to two groups of administrators and trustees for pension, health and welfare funds, representing various employees on the Kenton County project. Reliance appeals, arguing that (a) the contributions were not for labor on the project and thereby not subject to coverage under KRS 376.-210; (b) the trustees are not proper parties to bring this action; and (c) the right of the surety is superior to the right of the trustees, even if the first two objections are meritless.

The contention that “fringe benefits” are not payment for labor is without worth. These benefits are specifically recognized in our statutes dealing with public works as a part of the prevailing wage. Thus we have a statute declaring that in dealing with the prevailing wage on public works fringe benefits are to be included, and a second statute guaranteeing that laborers who are not paid for their work on public projects shall have a lien for the payment of that labor. It would certainly be inconsistent at best to attempt to exclude fringe benefits from the recovery of the laborer.

A comparable case from the Supreme Court of the United States is the case of United States v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). This was a Miller Act case in which it was clear that the contribution by the employer to the fund was a part of the agreement to pay for the services of the laborers on the construction job, just as was present in this case. The court held that “. . . these contributions are in substance as much ‘justly due’ to the employees who have earned them as are the wages payable directly to them in cash.” 353 U.S. at 220, 77 S.Ct. at 798.

We hold further that the trustees of the funds were the proper parties to bring this action and file claims on behalf of the laborers. CR 17.01 would seem to permit such an action by the trustees as “an assignee for the benefit of creditors.” However, of even greater import is the fact that the agreement between DeSalvo and the laborers recognized these funds, and the right of trustees to represent and require payment thereto. The appellant, surety for DeSalvo, can hardly deny such relationship. Although dealing with a payment bond, the language in United States v. Carter, supra, says it quite well:

The master labor agreements not only created Carter’s obligation to make the specified contributions, but simultaneously treated the right of the trustees to collect those contributions on behalf of the employees. The trust agreement gave the trustees the exclusive right to enforce payment. The trustees stand in the shoes of the employees and are entitled to enforce their rights.
Moreover, the trustees of the fund have an even better right to sue on the bond than does the usual assignee since they are not seeking to recover on their own account. The trustees are claiming recovery for the sole benefit of the beneficiaries of the fund and those beneficiaries are the very_ ones who have performed the labor. 353 U.S. at 220, 77 S.Ct. at 798.

We hold that the right of the trustees of these pension funds is superior to that of the surety to those funds undis-bursed and unappropriated from payments due before default. The appellant seeks to apply the “equitable lien” or “no debt” theories but, as set out above, these do not apply to category one funds.

- [15-17] In regard to one of the pension funds, appellee Ohio Operating Engineers had secured a mortgage from DeSalvo on certain property in Ohio, and Reliance urges that this constitutes an election of remedies. The doctrine of election of remedies is predicated on inconsistency of remedies. The test of inconsistency is whether the remedies proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other. Two remedies are inconsistent if facts relied on as a basis for one remedy are repugnant to facts relied on as a basis for another remedy. See 25 Am.Jur.2d, Election of Remedies, § 11, and Edge v. City of Lexington, 277 Ky. 750, 127 S.W.2d 393 (1939). The remedies sought here do not meet the test of inconsistency and the fund is entitled to pursue one or both. See Citizens Trust & Guaranty Co. v. Peebles Paving Brick Co., 174 Ky. 439, 192 S.W. 508 (1917).

HIGHWAY EQUIPMENT COMPANY

Appellee Highway Equipment Company filed a Statement of Lien against DeSalvo prior to default in the amount of $104,828.28 and subsequently perfected its lien. Upon motion for summary judgment, Highway Equipment filed the amended affidavit of Russell DeSalvo, president of DeSalvo Construction Company, and the affidavits of others indicating that the equipment had been furnished by Highway Equipment and in a proportion of 90% on the Kenton County project and 10% on the Campbell County project. DeSalvo further acquiesced in the claim of Highway Equipment and denied authorization to Reliance to protest in its behalf. Reliance submitted no affidavits or other proof, and summary judgment was awarded to Highway Equipment against these category one funds. Reliance urges that a genuine issue of fact concerning the percentage attributable to its project exists. This is not the court in which such issue is to be first raised. From the record before us, with the unanswered proof, there was no genuine issue of material fact. The affidavits in support of the motion for summary judgment of Highway Equipment were quite specific and complete, and we will not disturb the proportionate allocation between the projects arrived at by the lower court in light of this evidence.

For the reasons herein stated, the judgment of the lower court is affirmed in both cases.

All concur.

      . 337.505. Definition of “prevailing wage,” fringe benefits included.—For the purpose of KRS 337.505 to 337.550, the term “prevailing wage” for each classification of laborers, workmen, and mechanics engaged in the construction of public works within the commonwealth of Kentucky, means the sum of:

      (2) An additional amount per hour equal to the hourly rate of contribution irrevocably made or to be made by an employer on behalf of employes within each classification of construction to a trustee or to a third person pursuant to an enforceable commitment to carry out a financially responsible plan or program, which was communicated in writing to the employes affected, for the following fringe benefits: medical or hospital care, pensions on retirement, death compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, defraying costs of apprenticeship or other similar programs, or other bona fide fringe benefits, but only where the employer is not required by other federal, state or local law to provide any of such benefits: Provided, said additional amount may, at the discretion of the employer, be paid either in cash to the employe or by contributions for fringe benefits, or partly in cash and partly by such contributions, it being the intention of this subsection to recognize fringe benefits as a part of the prevailing wage rate where made in accordance with this subsection.


text:
    Ronnie MISHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 8, 1978.
    Discretionary Review Denied Feb. 20, 1979.

      Jack Emory Farley, Public Advocate, Commonwealth of Kentucky, Frankfort, Kevin Michael McNally, Asst. Public Defender, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before GANT, LESTER and VANCE, JJ.
   GANT, Judge.

Appellant was found inside a store building with the roof vent open, an overturned ladder on the premises, a shotgun in his hands and the burglar alarm sounding in his ears. Upon his arrest, a watch worth approximately $1,000, which had been taken in a prior theft, was found in his possession. He was indicted for second degree burglary and receiving stolen property. At a pretrial hearing between counsel for the appellant and the Commonwealth Attorney, plea bargaining began and was concluded with the Assistant Commonwealth Attorney a few days later. Counsel for the appellant was asked if the appellant had a record of prior convictions and responded that he had a juvenile record “as long as your arm and leg” but when questioned about appellant’s adult record he responded that he didn’t think he had one and that he didn’t know of anything.

At the conclusion of this colloquy, the prosecutor agreed to reduce the charge of second degree burglary to third degree burglary, a Class D Felony, and to recommend to the court one year on the reduced charge, together with one year on the receiving charge, the two sentences to be served concurrently for a total sentence of one year. This agreement was reduced to writing on the pretrial disposition sheet, which contained the statement, “All parties understand that the recommendations are not binding on the court”, and was signed by the appellant, his attorney and the Assistant Commonwealth Attorney. The Commonwealth then moved to reduce the burglary charge, which motion was sustained. The appellant thereafter signed a Waiver of Further Proceedings and a Petition to Enter Plea of Guilty which contained, as Paragraph 9, the following statement:

I also understand that if I plead “GUILTY” the court may impose the same punishment as if I had pleaded “Not Guilty,” stood trial and been convicted by a jury and that the court need not accept any recommendations as to the sentence that may be made by the Commonwealth. (Emphasis added).

His attorney certified that his plea was being voluntarily and understandingly made and the plea was accepted by the court. The transcript of the proceeding on this plea contained the following:

Q. 10. Have any promises or representations of any nature been made to you by anyone to influence you to enter a plea of guilty?
A. No, sir.
Q. 11. Do you understand that no one could make you such a promise that would bind me as Judge of this Court?
A. Yes, sir.
Q. 15. It has been indicated by your counsel, Mr. Paitsel, that you wish to waive having the jury assess punishment and that you desire the judge to fix your punishment without a jury. Is that what you wish?
A. Yes, sir.
Q. 16. Do you realize that under the offenses with which you are charged the court could sentence you to imprisonment for as long as five and ten years (five years on each)?
A. Yes, sir.

An order was entered finding the appellant guilty on both counts and fixing his punishment at one year on each count, to run concurrently, which order was apparently signed by mistake and set aside by subsequent order. The case was set over for presentence investigation and prior to judgment the court learned that the appellant had been previously convicted of a felony in the same court just two years before and had just completed his probation. This appeared in the presentence report filed with the court prior to formal sentencing and judgment.

At this formal sentencing, the court made the appellant award of the fact that he had subsequently learned of the previous offense and that he would not honor the recommendation of the Commonwealth Attorney. He immediately offered the appellant the right to withdraw his guilty plea but appellant declined to do so. After additional discussion, the court again indicated it would not accept the recommendation of the Commonwealth Attorney and again offered to let the appellant withdraw his guilty plea. The appellant again refused, whereupon the judge sentenced him to two years on the charge of third degree burglary and one year on the charge of receiving stolen property, said sentences to be run consecutively for a total sentence of three years.

Appellant did not appeal from this but subsequently, and some five months after sentence was imposed, filed motion to vacate and set aside the judgment pursuant to RCr 11.42, which motion was denied and from which order denying said motion this appeal was taken.

Appellant asks reversal on the grounds that the Commonwealth failed to keep its commitment concerning sentence recommendation on a guilty plea, relying on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and numerous cases decided thereunder. We affirm the conviction and the sentence.

The law is clearly set out in Santo-bello, supra. If the guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, then the promise must be fulfilled. Appellant fails in every aspect of that test. Under the circumstances of this arrest, he can hardly claim that his plea of guilty was induced by a promise of the prosecutor. Additionally, in contrast to Santobello and other cases cited by the appellant, the prosecutor herein kept his commitment. He was successful in his motion to reduce the charge from second degree burglary to third degree burglary and he recommended the sentence to which he had committed himself.

Appellant must fail, also, under the additional holding of Santobello which provides that the alternatives under these circumstances are (1) specific performance, or (2) granting opportunity to withdraw the plea of guilty. The lower court twice offered the appellant the opportunity to withdraw his plea of guilty, which offer he twice declined. He assigns as reason therefor the fact that he had admitted the burglary to the interviewing probation officer. Under the facts of this case, this admission was totally superfluous. His position of peril would hardly have been changed even if this “confession” were admissible.

It is made manifestly clear at every step in this proceeding that the recommendation of the prosecutor was not binding on the court, the appellant even acknowledging his realization of this on two occasions.

This case brings into sharp focus the proceedings of the criminal courts of this Commonwealth. Over 90% of the dispositions made of criminal cases in this state are by pleas of guilty. These are customarily the result of pretrial conferences and sentence negotiation or plea bargaining. However, in this procedure there is an obligation on the prosecutor that cannot be ignored and that is to determine his recommendations concerning the amendment of charges and length of sentence by thorough investigation of the case and the criminal history of the defendant. In fact, it is better practice to make the investigation of the record of persons charged with felonies even before indictment in order to determine whether the accused is a recidivist or persistent felony offender. In the case before us there is some evidence that the appellant had a prior conviction in Tennessee, as well as the conviction for a felony in the same county and by the same circuit court just two years prior to this plea of guilty. The latter could have been discovered by a minimum effort, which apparently was not made. To reduce the original charge where an armed recidivist was found inside the building with stolen property in his possession evidences, at best, a lack of thoroughness.

In cases involving guilty pleas, KRS 532-050 should be adhered to. This statute, in part, provides as follows:

(1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a pre-sentence investigation and giving due consideration to a written report of such investigation.
(2) The report shall be prepared and presented by a probation officer and shall include an analysis of the defendant’s history of delinquency of criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits, and any other matters that the court directs to be included.

As this statute clearly sets out, the procedure required therein is mandatory and numerous cases have been remanded for compliance. See Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977); Darnell v. Commonwealth, Ky., 558 S.W.2d 590 (1977); Taylor v. Commonwealth, Ky.App., 551 S.W.2d 813 (1977); Patterson v. Commonwealth, Ky.App., 555 S.W.2d 607 (1977); Gregory v. Commonwealth, Ky.App., 557 S.W.2d 439 (1977). Following jury verdicts, KRS 532.050 relates almost exclusively to probation or conditional release but it is contained in that section of our statutes entitled “Authorized Disposition” and not the probation section. The sentencing function of our courts on pleas of guilty is carried out by the judge. While the prosecutor and defense counsel, along with the defendant, may discuss and negotiate, they cannot impose sentence by agreement. Upon pleas of guilty, the purpose of this section is clearly to furnish the court with an adequate background from which an evaluation of the defendant may be made, together with an assessment of the recommendation made by the prosecutor concerning the crimes with which the defendant is charged, and the sentence therefor.

Many courts utilize “informal” sentencing, which should be dispensed with in light of KRS 532.050, which requires investigation before any type of sentencing. The sentencing court should merely accept the plea, note the recommendation or agreement concerning sentence, and set a day certain for sentencing. No sentencing at all should be carried out until KRS 532.-050 has been complied with. Subject to that compliance, lower courts might well follow the procedure set out in Rule 11 of the Federal Rules of Criminal Procedure.

We compliment the lower court for his forms, his procedures and his thoroughness, and we find no error herein.

The judgment of the Fulton Circuit Court is affirmed.

All concur.


text:
    Cecil Ray “Tommy” McHONE a/k/a Tommy McHone, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1978.
    Discretionary Review Denied Feb. 20, 1979.
    Nichols W. Williams, Williams & Tucker, Berea, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and HAYES and HOWARD, JJ.
   HOWARD, Judge.

Appellant, Tommy McHone, was convicted of transporting alcoholic beverages in local option territory (fourth offense) and sentenced to one year in prison. He appeals, contending that he was entitled to a directed verdict of acquittal since the evidence needed to sustain his conviction (namely, the alcoholic beverages) was obtained as the result of an illegal search. We agree.

Trooper Arnold Weddington testified that he saw the appellant, who was driving a 1970 Pontiac, leave the parking lot of the T & R Liquor store in Richmond, Kentucky, at about 10:30 P.M. Weddington observed that the car seemed to be loaded and was sitting low in the rear. He had not observed the car being loaded, so he did not know what was in the trunk of car. However, Weddington knew of appellant’s reputation as a bootlegger and surmised that appellant was transporting alcoholic beverages. Because he was unable to follow the appellant himself, Weddington called another police unit, and relayed his observations concerning appellant and his car.

Trooper Ernie Boggs received Wedding-ton’s information. Boggs also knew of appellant’s reputation as a bootlegger. Boggs was parked at a service station in Berea; he observed the appellant, in the Pontiac, drive by. Boggs recognized both the appellant and the car, and also noted that the car was sitting very low in the back.

Boggs stopped appellant’s car and asked appellant for his driver’s license. When appellant was unable to produce one, Boggs placed the appellant under arrest on the misdemeanor charge of operating an automobile without an operator’s license. The appellant was placed in the police cruiser. Boggs bent down and looked under the car seat of appellant’s car, where he saw an already opened half-pint of vodka. He then took the keys from appellant’s ignition and opened the trunk. In the trunk were 15 cases of beer and 24 one-half pints of whiskey.

The Commonwealth attempts to argue that the totality of information and observations about appellant and his car justified the search of the trunk of appellant’s car, and therefore justified appellant’s conviction. Appellant cites Howard v. Commonwealth, Ky.App., 558 S.W.2d 648 (1977), in support of his contention that the beer and whiskey were the fruits of an illegal search, since there was no probable cause for stopping appellant’s car.

In Howard, supra, a trooper recognized the defendant, and the car he was driving, as being the same he had previously stopped for illegally transporting alcoholic beverages. Merely because of that previous knowledge, the trooper stopped the defendant’s car and checked his operator’s license. The trunk of the defendant’s car was searched and five cases of beer were found. This Court held that the arresting officer had no probable cause for stopping the defendant, since “[njeither suspicion nor bad reputation, standing alone, will warrant a conviction.” Howard, supra, at page 645.

In the instant case, Boggs knew that appellant had been previously driving without a proper license, and we will assume Trooper Boggs had a reasonable purpose in stopping appellant because of that knowledge. The rule has been adhered to in this Commonwealth that an arrest for a minor traffic violation does not justify a complete search of a vehicle. Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). See City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975), wherein it was held that an arrest for driving while under the influence of intoxicating beverages does not justify a search of the trunk of the car under either the “plain view” doctrine or “reasonableness” test.

The Commonwealth attempts to argue that the one-half pint of vodka found by Boggs falls within the “plain view” doctrine, thus further strengthening its contention that the search of appellant’s trunk was lawful.

In Clark v. Commonwealth, Ky., 388 S.W.2d 622, 624 (1965), a case and some cans of beer sitting on the floor of a car, where the back seat had been removed, were held to be in “plain view” of a policeman who had stopped the defendant and walked up to the car in order to check his operator’s license. In Adkins v. Commonwealth, 202 Ky. 86, 259 S.W. 32 (1923), and in Nichols v. Commonwealth, Ky., 408 S.W.2d 189 (1966), evidence contained in sacks (respectively, liquor and marijuana) was excluded as not being in “plain view” since the officers had to open the sacks to determine the contents.

We think that when Boggs bent over to look under the car seat, that action more closely approached the Adkins, supra, and Nichols, supra, situations, since the one-half pint of vodka was not . . clearly visible, open and obvious to anyone who even casually observes.” Nichols, supra, at page 192.

The Commonwealth sets forth exigent circumstances so as to justify the search of appellant’s car without obtaining a warrant. The Commonwealth contends that the car could readily be moved if the officer left the scene. It should be noted again that the appellant was arrested for driving without a license, making him incapable of further driving. And appellant’s companions in the car were apparently small children. Furthermore, the existence of exigent circumstances is only an exception to the requirement of obtaining a warrant. Even if exigent circumstances had been present here, that would not have justified the search, as there was no probable cause to support it.

In City of Danville v. Dawson, supra, at page 691, the Court recognizes that it may be reasonably necessary to impound and store a vehicle, or leave it unattended, after a person’s arrest, and that the police officers may therefore close and lock the car. Whatever the officers observe in plain view may be used as evidence. However, absent a warrant or special circumstances, which' we do not believe are applicable in the instant case, the opening of the trunk of said car constitutes an illegal search.

Since the beer and whiskey found in the trunk of the appellant’s car were found as the result of an illegal search, appellant’s motion for directed verdict of acquittal should have been sustained. Howard, supra.

The judgment of the trial court is reversed.

All concur.


author: LESTER, Judge.

text:
    Billy Joe PRINCE a/k/a Joe Bill Prince, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 20, 1978.
    As Modified on Denial of Rehearing Jan. 26, 1979.

      William F. Moore, Jr., R. B. Bertram, David C. Hull, Gordon T. Germain, Bertram & Bertram, Monticello, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, Eddie C. Lovelace, Commonwealth Atty., 40th Judicial Dist., Albany, for appellee.
    Before MARTIN, C. J., and HOWERTON and LESTER, JJ.
   LESTER, Judge.

Billy Joe Prince was convicted of assault in the first degree and sentenced to five years in the penitentiary. From that judgment of conviction, this appeal ensues assigning as error that the verdict was unsupported by sufficient evidence, that an improper instruction was given and that the sentencing order was erroneous.

The appellant engaged in a fight with one Billy Joe Elam wherein the latter sustained multiple cuts on his legs, face, back and other areas of his body. The altercation ended with Elam in a prone position on his back on the ground and Prince throwing a flower pot in his face. Appellant was indicted for assault in the first degree in violation of KRS 508.010, tried and convicted.

At the conclusion of the evidence, the court instructed the jury under all three degrees of the offense as well as assault under extreme emotional disturbance. The jury retired and returned a verdict which, in its entirety, says:

We the jury find the defendant guilty and fix his funishment (sic) at 5 years,
/s/ Jack C. Roberts
Foreman

At the end of the transcript of evidence, we note that subsequent to the last question, upon cross-examination by defendant of a prosecution rebuttal witness, the following appears:

Mr. Lovelace: The Commonwealth rests, your Honor.
(The Court admonished the jury and adjourned for lunch)
(The Court instructed the jury)
Stenographer’s Certificate

There is no transcript of the closing arguments, nothing to show that the jury was polled or discharged and no record of any post verdict motions or objections, if such had been made. The trial concluded on November 18, 1977, and on the same day, the court entered a form criminal trial order and jury verdict. The formal judgment was not entered until December 7, 1977, and even though appellant states, by way of brief, that he was appealing from the “judgment” of November 18th he, nevertheless, included as the single entry in his appendix the final judgment.

Appellant’s notice of appeal recites that he is appealing from the “final judgment” entered on November 18, 1977. Since there was only one final judgment adverse to the appellant from which he could have appealed, we will treat the notice of appeal as having sufficiently designated the final judgment of December 7, 1977. Moreover, appellee made no motion to dismiss the appeal before this court.

On November 19, 1977, the defendant below filed a motion for a new trial wherein he assigned as two of his grounds:

2. That the Court erred in giving Instruction No. 1 because the same was not supported by competent medical evidence.
3. That the verdict of the jury is defective in that the jury failed to state the Instruction under which they found the defendant guilty.

It will be recalled that the jury made no finding as to which degree of assault they found him guilty but they set his punishment at five years. On the other hand, the trial order and the final judgment both recited that Prince had been convicted of first degree assault and imposed the five year penalty. KRS 508.010 is a Class B felony carrying with it a minimum of ten and a maximum of twenty years in the penitentiary. Although the record fails to disclose any proceedings in the trial court subsequent to the jury being instructed, we cannot say whether the verdict, which was violative of RCr 9.82(1), was objected to or not before the jury was discharged. For that matter, nothing in the transcript or record reflects that the panel was actually discharged. In any event, the error was brought to the court’s attention within twenty-four hours.

Despite its awareness of the wrong penalty being imposed for the offense charged, the court overruled the motion for a new trial on December 7, 1977, and on the same day, sentence was imposed. The proceedings, attendant upon the sentencing, were transcribed and we note that the court alluded to the motion and grounds for a new trial.

It has long been the law of this jurisdiction that the failure to object to the jury’s failure to designate the degree of the offense in its verdict prior to the discharge of the panel coupled with the error’s omission as a ground in a motion for a new trial is fatal to preservation for appellate review. Gillum v. Commonwealth, Ky., 121 S.W. 445 (1909); Foster v. Commonwealth, Ky., 507 S.W.2d 443 (1974); 23A C.J.S. Criminal Law § 1416. Since the verdict rendered regarding the punishment can in no way be reconciled with the judgment of conviction of first degree assault, we believe the error to be one of substance as compared to those of the procedural type as is addressed in Franklin v. Commonwealth, Ky., 490 S.W.2d 148, 151 (1972); we are unable to determine if any steps whatsoever took place subsequent to the jury being instructed, but we are aware that within the shortest time possible (the next day) a motion and grounds for a new trial was filed including the error. We hold that the issue was preserved for our consideration and that reversal is required.

Concerning the question of lack of medical evidence, we note that one of the necessary elements to be proven is the infliction of serious physical injury which has been defined by KRS 500.080(15) as the creation of a substantial risk of death, or serious and prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ. We are not prepared to hold that medical proof is an absolute requisite to prove serious physical injury, but do conclude that KRS 500.080(15) sets a fairly strict level of proof which must be met by sufficient evidence of injury, medical and/or non-medical, taken as a whole, before an instruction on first-degree assault may be given. Compare Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977).

In Franklin, supra, there was no doubt as to what offense the appellant had committed, and the issue was merely a procedural one as to the correct punishment and the cause was remanded for resentencing. In the present appeal, the error was substantive and we are unable to determine of what crime the appellant was convicted, and accordingly, we believe the motion for a new trial should have been granted.

The judgment is reversed and the case remanded with directions to grant a new trial.

All concur.


author: MARTIN, Chief Judge.

text:
    Marjorie L. NEEL, Appellant, v. WAGNER-SHUCK REALTY CO., Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1978.

      Richard T. Ford, John W. Stevenson, Ow-ensboro, for appellant.

      Ronald M. Sullivan, Owensboro, for ap-pellee.
    Before MARTIN, C. J., and GANT and WINTERSHEIMER, JJ.
   MARTIN, Chief Judge.

The appellant Marjorie L. Neel, a homeowner, entered into a standard form agreement known as a Multiple Real Estate Listing Agreement with the appellee Wagner-Shuck Realty Co., on September 18, 1976. The contract called for the realtor to sell the owner’s residence at a price of $62,-500.00. The realtor procured buyers, Ellen Hayes and Paul W. Hayes, who entered into a contract to purchase the Neel’s house in January 1977. The sale was never consummated due to failure of conditions.

On April 4, 1977, a second Multiple Real Estate Listing was entered into by Neel and Wagner-Shuck Realty. This time the selling price was $59,950.00. The agreement was for a term of three months expiring on July 3, 1977. It provided:

In the event . . . said real estate is sold for a price and upon terms . acceptable to Owners, during the term of this agreement ... to any purchaser . . . then . . . Owners promise and agree to pay Realtor a commission of 6 per cent of the sale price. In the event Realtor finds a purchaser . who is willing to purchase . Owners agree to convey said real property to purchaser ....

An agreement for the sale of appellant’s residence was reached on June 9,1977. The purchasers were again Ellen Hayes and Paul H. Hayes. The agreed purchase price was $55,000.00. The only condition was “closing to be immediately.” The necessary alterations were made in the January 15 contract and it was then revived by marginal notations. In accordance with the terms of the agreement and within ten days of acceptance by the appellant, the purchasers applied for a loan of $44,000.00 as described in the contract, and the loan was approved June 15. On July 4,1977, appellant advised the real estate agent the contract was not acceptable and demanded a higher purchase price for the property. The purchasers wanted to close the sale on the agreed terms and, on numerous occasions in July, reaffirmed their ability to comply with the terms of the contract. The $44,000.00 loan commitment expired on August 1, and the transfer of the property from appellant to the purchasers was never consummated.

The realtor instituted this suit for its commission alleging that it had found a buyer who entered into a purchase agreement and that the realtor had thus earned its commission. The realtor moved for summary judgment and filed with the motion an affidavit of Evelyn Harris, the realtor’s agent, and the two listing agreements and the purchase agreement. No counter-affidavits or other responsive pleadings were filed. The summary judgment was granted on December 9, 1977.

The appellant admits that as a matter of law a broker earns a commission whenever an offer to purchase is made and accepted by the owner. However, after this admission, appellant argues that appellee has failed to prove there was an enforceable agreement.

Appellant argues that whether the purchasers were ready, willing and able to purchase the property was a fact issue. Appellee responds that, as the court said in Casey v. Hart Wallace & Co., 188 Ky. 441, 222 S.W. 111, 112 (1920), there are two alternatives that entitle a realtor to his commission:

a real estate broker may earn his commission, either by producing a person who is not only then, but all times, ready, able, and willing to purchase the property on the prescribed terms, or by obtaining from the customer a binding contract which the landowner himself may enforce, in case of a breach or default in its terms. . . . Here the customers presented by plaintiffs were accepted by defendant, and the parties executed a valid and enforceable contract. That being true, plaintiffs were entitled to their commission, even though the parties, through the fault of one or the other, afterwards refused to carry out the trade. (Emphasis ours.)

The court uses the disjunctive “or.” All that is required to entitled the realtor to his commission is a “binding contract.” If such exists, it is irrelevant whether the purchaser is ready, willing, and able to perform or whether either party refuses to perform. The realtor has earned his commission.

Where a purchaser presented by a broker is accepted by the owner, as the purchasers were in this case on June 9, at a price of $55,000.00 and “closing to be immediately”, and the parties enter into such a “binding contract” of sale, the broker then and there is entitled to his commission even if the purchaser proves to be financially irresponsible or fails to meet the payment schedule unless the broker has been guilty of bad faith, and no such claim is made or pleaded in this case. Seller has the option to accept or reject an offer such as the Hayeses made here, but if the seller accepts, then the broker’s commission is earned. The court so held in Swinebroad v. Foster, 196 Ky. 459, 244 S.W. 881 (1922). Also so holding are Ferguson v. Harris, 200 Ky. 146, 254 S.W. 329 (1923), Brinton v. Motte, Ky., 244 S.W.2d 480 (1951), and Story v. Gibbs, Ky., 309 S.W.2d 334 (1958). In the latter case, the purchasers failed to close the sale and the court said at page 335:

The only question in the case is whether or not this accepted offer constituted a binding and enforceable contract. . It clearly was.

Similarly, the contract in Story v. Gibbs, supra, provided that the deed was to be delivered “not later than soon as possible,” and the sellers in that case also argued that the realtor was not entitled to his commission until the buyer fully performs his part of the contract. Rejecting that argument, the court said at page 335:

This is a novel theory unsupported by reason or authority. The “completed transaction” in this case was the binding contract to purchase entered into between the buyer procured by the agent and the seller. Certainly there is nothing in this record to indicate that appellants undertook to guarantee the performance of the contract by the buyers.

- The law of Kentucky is clear on the issue argued by appellant. When there is a binding contract to purchase, the realtor has earned his commission. The only condition in the present contract that would render it unenforceable was the purchasers’ failure to secure a mortgage loan. That is not before us, because they did secure a mortgage commitment.

Appellant cites Flynn v. Hansen, 313 Ky. 733, 233 S.W.2d 399 (1950), for the proposition that summary judgment was inappropriate because there was a fact issue to be determined by the trial court. In that case the condition was as follows:

$14,500.00 will be paid upon passing of deed provided the satisfactory loan can be secured as aforesaid within ten days from this date.

The distinction between Flynn v. Hansen, supra, and the present case is the uncontro-verted affidavit of Evelyn Harris that the loan commitment was obtained on June 15, and the purchaser remained ready, willing, and able to close the transaction under the terms of the sales agreement.

Rule 56.03 provides summary judgment is appropriate when “. there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” These are the two conditions which must exist for summary judgment to be appropriate. New Amsterdam Casualty Company v. Allen Company, Ky., 446 S.W.2d 278 (1969). If the appellant had proof that a genuine fact issue existed, it was appellant’s duty to tender some proof to the court. CR 56.03, 56.05, and 56.06; Conley v. Hall, Ky., 395 S.W.2d 575 (1965); and Tarter v. Arnold, Ky., 343 S.W.2d 377 (1960). Appellant argues certain matters as proven facts. One is that there was a note taken as a deposit and that there was a default in the payment of the note. Appellant accepted the note, and there was an enforceable contract. The payment of the note, once it was accepted by appellant, has no bearing on the present case. Appellant next argues the purchase was conditioned upon the sale of the purchasers’ Illinois residence; however, that condition was applicable to the January 15 contract and not the agreement of June 9 where the closing was to be immediate. Even had the condition been applicable, the sale of the Illinois property was a condition in favor of the purchasers, not the seller, and the fact that the purchasers were willing to consummate the sale entitles the realtor to its commission.

A statement of the holding in Cook United, Inc. v. Waits, Ky., 512 S.W.2d 493, 495 (1974), sets the standard for judicial interpretations such as are present in this case.

The question of interpretation in these circumstances is to be determined by the trier of fact if it depends on a choice among reasonable inferences to be drawn on the extrinsic evidence admissible apart from the application of the parol evidence rule. Otherwise, the question of interpretation is a question of law. A writing is interpreted as a whole and all writings that are part of the same transaction are interpreted together.

There is no genuine issue as to any material fact in the present case that requires extrinsic evidence for its proof. There may be extrinsic evidence, such as the ability to secure financing by June 15, but there is no dispute about the fact. Therefore, summary judgment in this case was an appropriate remedy.

The judgment of the Daviess Circuit Court is affirmed.

All concur.

      . In a case cited by appellant, TEC Corp. v. Nuclear Dynamics, Inc., 364 F.Supp. 1165 (W.D.Ky.1973), the court held that a broker is not entitled to his commission when the agreement by its terms contains a condition which must occur before the commission is to be paid, and the condition does not occur. The princi-pie is not applicable to the instant case. In TEC Corp., the contract provided that the option to purchase had to be exercised before a fee was due, and the option simply was not exercised. No such unperformed condition existed here to excuse owner from paying the commission.


author: WINTERSHEIMER, Judge.

text:
    GREG COATS CARS, INC., Appellant, v. Nancy KASEY and Beneficial Finance Company, Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1978.

      Alfred J. Simon, Jr., Louisville, for appellant.
    Richard F. Newell, Ogden, Robertson & Marshall, Louisville, for appellee, Beneficial Finance Co.
    Karl M. Walz, Louisville, for appellee, Nancy Kasey.
    Before COOPER, GANT and WINTER-SHEIMER, JJ.
   WINTERSHEIMER, Judge.

This is an appeal from a judgment entered March 6, 1978, which ordered cancellation of a contract to purchase a used automobile and awarded damages for breach of warranty. On April 22, 1974, appellee Kasey purchased a 1971 Triumph Spitfire from appellant for the amount of $1,695.00, of which all but $100.00 was financed with appellee Beneficial Finance Company. After delivery of the automobile which had 50,000 miles on it, it was discovered that there were serious and numerous mechanical defects. Appellee Kasey sent a notice of rejection of the contract. Kasey did not keep up the mortgage payments and appellee Beneficial Finance repossessed the automobile and sold it at auction for a net sum of $750.23. Appellant and appellee Kasey maintain that the auction sale was not commercially reasonable. The evidence indicates that appellee Kasey had the use of the automobile for no more than four days from the time of sale to its repossession. During this period, however, the appellant had loaned Kasey the use of another automobile, without charge. This matter was referred to a trial commissioner who made his report which was excepted to. The exceptions were overruled.

Appellant sets out the following points:

1) Absent fraud, it was error to rescind the contract.
2) There was no breach of contract.
3) The contract validly excludes all warranties.
4)The repossession sale was not commercially reasonable.

This Court reverses the judgment of the trial court because the findings of the trial commissioner, which are confirmed by the judgment, are not supported by the evidence in the record. The commissioner’s report ignored the disclaimer of warranty.

A careful examination of the contract between the appellant and appellee Kasey indicates that all representations made by the appellant were fully performed. There can be no fraud or misrepresentation when one of the contracting parties does all that it must in order to perform the contract. There was no proper basis for cancellation or rescission of the contract. One of the principal contentions of the appellee is that the delay in making the repairs constituted a breach of contract. The evidence indicates that the delay was due, in part, to the fact that the automobile was of English manufacture and that parts were difficult to obtain. The evidence also shows that the appellee Kasey was supplied, free of charge, another automobile for her use. In light of these facts, we cannot conceive of a substantial or material breach of contract in this respect.

Nonperformance of an agreement is not grounds for cancellation of a contract in the absence of additional circumstances justifying equitable relief. Here, the performance was delayed for some time, due to the difficulty in obtaining parts for the foreign car, but was eventually made. It appears that under all the circumstances the performance was within a reasonable time. This is all that is required where no specific time is fixed by the contract. 17 Am.Jur.2d, Contracts, § 80.

The most telling argument by the appellant is that the contract properly excludes all warranties. An examination of the sales document indicates that it complies with Kentucky law in respect to informing the purchaser of the conditions of the contract. The statutory requirements are met for ex-eluding warranties by use of bold type, large type, red ink, words excluding all warranties and subject to all defects. The language “as is with all defects” is clearly used in this document. Appellee Kasey voluntarily made the contract after inspecting the auto and having the buyer’s order before her in clear, concise and complete terms.

It is obvious to this author that the frequently used expression “caveat emptor”, or let the buyer beware, is a commercial reality in respect to the transfer of used cars, as well as any other item of personal property or goods.

The Uniform Commercial Code specifically provides that parties may exclude warranties. KRS 355.2-316(2) and (3). The code also provides for the method of exclusion, giving the wording to be used and stating that it must be conspicuous. KRS 355.2-316(2).

The repossession sale by appellee Beneficial Finance was commercially reasonable. The record indicates that after repossession Beneficial notified Kasey that the car would be sold at auction and she signed a bill of sale. The record indicates that Beneficial also notified appellant who claimed it had a potential buyer and wanted Beneficial to finance the resale. Beneficial told appellant’s representative of the auction, but the record indicates that Beneficial never received a valid offer from the appellant. Beneficial’s contract was with Kasey and not the appellant. The car was sold at public auction at a time and place customary for such sales. Appellant has not presented any authority or proof to support its appeal against Beneficial. The conclusions drawn by the trial court, based on the evidence before it, are consistent with the statute and decisions of Kentucky. The sale of the automobile was commercially reasonable. See: Nelson v. Monarch Investment Plan of Henderson, Inc., Ky., 452 S.W.2d 375 (1970) and KRS 355.9-507(2) and KRS 355.9-504(3).

It is the opinion of this Court that there was no evidence of fraud or misrepresentation and it was error for the trial court to rescind the contract. The document clearly states the automobile was purchased “as is with all defects”. The contract excluding all warranties was valid, and therefore, it was error to make an award against the appellant. The evidence does not support the findings by the trial commission, as confirmed by the trial court, that there was a breach of an implied warranty. However, it appears that the repossession sale by Beneficial was commercially reasonable.

It is the holding of this Court that the judgment of the trial court, which is based on the findings of the trial commissioner, is not supported by the evidence. The trial commissioner ignored the obvious and plain disclaimer of warranty in the sales contract.

Therefore, so much of the judgment as relates to appellee Beneficial Finance Company is affirmed. So much of the judgment as relates to appellee Kasey is reversed.

All concur.