lor was in error in holding that the city may collect the 10 per cent. penalty, while the contractor may not, when we consider that, if the city should recover this penalty, it could use it for no purpose save to pay the contractor. The city has no authority to collect taxes for its general fund, under the guise of street assessments. In an action in the name of the city the recovery would be for the benefit of the contractor. The statute authorizes the action either in the name of the city or in the name of the contractor.

We therefore conclude that appellant, the contractor, suing in his own name in these two cases, was entitled to recover the 10 per cent. penalty.

Wherefore, the judgment herein is reversed, and this cause remanded, with direction that a judgment in conformity with this opinion be entered.

CRUM v. COMMONWEALTH.

(Court of Appeals of Kentucky. June 19, 1925.)

I. Criminal law 1137(5)-Defendant, choosing to read transcript of physician's testimony on former trial, cannot complain because trial court's rulings and examination of physlcian was read to jury.

Where defendant was given choice whether he would read transcript of physician's testimony on former trial, or his own affidavit setting out substance of testimony, and chose former, he cannot complain because rulings of court as well as court's examination of physician, were also read to jury.

2. Criminal law 1134(5) Alleged implied bias of juror because of relationship to deceased reviewable on appeal.

Objection that juror was impliedly biased, because being related to deceased, may be reviewed on appeal, if properly preserved in and presented by record; such errors not being included in Cr. Code Prac. § 281.

3. Criminal law 11662 (6)-Relationship of juror to deceased held not to require reversal, where defendant's substantial rights not prejudiced.

Alleged implied bias of juror, because related to deceased, held not to require reversal, in view of Cr. Code Prac. § 340, where relationship was not shown to come within prohibited degree, nor that defendant was unaware of relationship before verdict was returned, and verdict was abundantly supported by testimony, since it was not prejudicial to his substantial rights.

4. Criminal law 1180-Decision on former appeal law of case.

Determination on former appeals as to propriety and correctness of certain instructions became law of case, binding on subsequent appeal.

Appeal from Circuit Court, Floyd County. Arthur Crum was convicted of voluntary manslaughter, and appeals. Affirmed.

Edward L. Allen, B. M. James, and A. J. May, all of Prestonberg, for appellant. Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty. Gen., for the Commonwealth.

THOMAS, J. This is the third appeal of this case; the opinions in the other two are reported in 196 Ky. 802, 245 S. W. 501, and 202 Ky. 374, 259 S. W. 708. In the first one will be found a statement of the material and substantial facts, which appeared practically the same in each of the three trials, and they will not be repeated here. Appellant was indicted for murdering Joe Hall, and upon each of his trials he was found guilty of voluntary manslaughter, and punished by confinement in the state penitentiary for a term stated in the verdict. The first conviction was reversed because the court did not submit to the jury in its instructions all the law applicable to the proven facts, and the proper ones were therein directed to be given upon another trial. The court followed those directions upon the second trial, which resulted, as we have stated, in another conviction, but the judgment was reversed because of the rejection of competent evidence offered by defendant. That evidence consisted of the testimony of a physician, who was a witness to the homicide, and saw the deceased strike defendant with a rock, and later observed and noticed the wound thereby inflicted on defendant, as well as observing the weight

and size of the rock. Defendant on that trial offered to prove by the physician that the character of the wound so inflicted by the rock, and as observed by the physician, would most likely produce temporary unconsciousness, and, because defendant claimed to have not known of the shot resulting in decedent's death, and which occurred after his being struck with the rock, we held in the second opinion, supra, that the tendered evidence of the physician was competent, and the court erred in rejecting it.

The physician was not present at this third trial, and defendant filed his affidavit, setting out what the testimony of the absent witness would be, and in it referred to the stenographic notes of his testimony on the

second trial. The court overruled defendant's motion for a continuance on account of the absence of the physician, and during the trial counsel representing him read to the jury all of the testimony of that witness, given on the second trial as transcribed by the official stenographer, and filed in the court as a part of the record of the prosecution, and it is now claimed that the court committed the same error on this trial for

which the second reversal was ordered, and that is the chief ground argued for a reversal on this appeal. But we do not agree with counsel in their contention that the court excluded from the jury on this trial the testimony of the physician that was held to be competent on the second appeal.

[1] Defendant was given his choice upon this trial as to whether he would read the transcript of the physician's testimony or his own affidavit, which set out the substance of that testimony. He chose to read the transcript of it, and in doing so (as appears from the present record) he read the rulings of the court as transcribed in the former record, as well as his avowals, and also read the pertinent examination of the witness, heard in the absence of the jury. We cannot tell from the record whether defendant's counsel on the last trial asked for an expunging from the transcript of that testimony of the rulings of the court on the second trial. But, whether he made such motion or not, there was read to the jury, as we have above stated, not only the avowals made before the physician was examined apart from the jury, but. likewise that separate examination was also read before the jury on the last trial. So that defendant got the full benefit of the professional opinion of the physician on the trial now under review, and he is in no position to insist that the rulings of the court on the second trial were also read to the jury, if they were so read, since he chose to read that transcript, as made on the second trial, as the testimony of the physician, rather than his affidavit, which contained no such rulings of the court, but only the substance of the testimony, to which he was entitled under our second opinion.

[2] Another ground strongly urged for a reversal is that E. L. Akers, one of the jurors who tried the case, was impliedly biased because of being related to the deceased, Joe Hall. This court has held (Hensley v. Commonwealth, 26 Ky. Law Rep. 767) that under the provisions of section 281 of our Criminal Code of Practice this objection cannot be reviewed by us, but in a number of other cases, preceding and following that one, we have taken jurisdiction and reviewed such implied bias on the part of a member of the jury who sat at the trial of the case (Leadingham v. Commonwealth, 180 Ky. 38, 201 S. W. 500, and other cases therein cited), and we are convinced that the present rule is that section 281 does not include such errors and that they may be reviewed on appeal if properly preserved in and presented by the record.

Defendant, in his motion for a new trial, does not technically rely upon the disqualification of the juror Akers, by reason of relationship to the deceased, but rather upon misconduct by him in withholding his relationship upon his voir dire examination, and

he neither disclosed, in his motion for a new trial (which was not verified), nor in any affidavit or otherwise, that he was ignorant of such alleged relationship before the verdict was returned. If he was aware of that fact, it was evidently his duty to move for a discharge of the jury, and, if he failed to do so, and risked his chances with the disqualified juror, he waived the objection, and cannot insist on it on this appeal. The affidavit of the juror was filed in support of the motion for a new trial, and we take from it this statement, "he (affiant) got the impression that the deceased, Joe Hall, was reared at or near the mouth of Abbot creek, in Floyd county, and with that information he stated at that time that he was no relation, and that he did not recognize that he was any relation to the said deceased, Joe Hall; however, it developed during the trial of said case that the deceased, Joe Hall, was raised in Carter county, and belonged to a Hall family which is, and was, directly related to this affiant." It is not stated therein, nor any other place in the record, the degree of relationship between the deceased and the juror, and for ought that appears it may have been so remote as to destroy the implied bias and to relieve the relationship altogether as constituting legal implied bias. We have no statute fixing the degree of relationship that would constitute such bias, but we held in the case of Miracle v. Commonwealth, 148 Ky. 453, 146 S. W. 1136, that, if the juror was not aware of the relationship until after a return of the verdict, it would not be cause for a reversal. The text in 35 C. J. 317, says, that:

"At common law, a juror was incompetent if the relationship was within the ninth degree. * ** * In the absence of statutory provision as to the degree of relationship, the question is to be determined by the court according to the probability of prejudice or partiality resulting therefrom."

If there was a fixed rule upon the subject, any juror coming within the prohibited degree would be sufficient cause for challenge, but it would not necessarily follow that, if he was not challenged, and participated in making and rendering the verdict, it should be set aside because of his relationship, and it was so held in the Leadingham and Miracle Cases, supra.

[3] Since, therefore, it does not appear that, even under the common-law rule, the relationship in this case was within the prohibited degree and, since it also does not appear that defendant was unaware of the relationship before the verdict was returned, we are not inclined to hold it sufficient to authorize a reversal. Especially is that true where the record shows, as it does in this case, that the verdict was abundantly sup ported by the testimony, and in view of the further fact that 3 juries, composed of 12

men each, have heard the testimony of both the commonwealth and defendant in this case, and in each instance found him guilty. Not a single man out of the 36 who heard his case was convinced of his innocence, and we are forced to the conclusion that the error now under consideration, if presented so as to be available, was not prejudicial to his substantial rights, and that, under the provisions of section 340 of the Criminal Code of Practice, we are not authorized to reverse the judgment therefor.

[4] Some insistence is made in brief that the court did not properly instruct the jury, but an examination of the record does not disclose grounds for that criticism. The opinion in 196 Ky. set out in detail the instructions to which defendant was entitled, and it appears that the court, on the subsequent trials, followed the directions therein given, and which directions upon re-examination we again conclude to be correct. On the second appeal (202 Ky.), further reference to the instructions was made, and, since defendant is not entitled to a trial of his case by piecemeal, those opinions became

the law of the case, which we are not authorized to change or alter, even if there were grounds therefor, but which we do not find to be true.

Finding no error for which a reversal should be ordered, the judgment is affirmed.

deed. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. A. Donaldson & Sons, of Carrollton, for appellant.

Winslow & Howe, of Carrollton, for appellees.

HOBSON, C. Sim Thompson, Sr., died a resident of Carroll county intestate, on November 29, 1922, leaving surviving him seven children and one grandchild, the only living child of a deceased son. After his death, this suit was brought by six of the children and his grandson against Sim Thompson, Jr., who was the youngest child, to set aside a deed executed by their father to him on September 4, 1922, for a tract of land containing about 130 acres, which he owned. The plaintiffs charged in their petition that their father was incompetent to make a deed, and that the deed was procured by undue influence. The allegations of the petition were controverted, voluminous proof was taken, and on final hearing the circuit court entered a judgment setting aside the deed on the ground that the grantor, because of his extreme age and physical and mental disability, had not sufficient mind or memory to know his estate or the value thereof, or the objects of his bounty and his duty to them, or to take a rational survey of the estate and dispose of it according to a fixed purpose of his own. The defendant appeals.

[1] The proof shows that the father was between 86 and 87 years of age. He had suffered for many years from dropsy; his heart was affected; his knees were bad from rheumatism; he walked with two canes. As shown by the proof for the plaintiffs, he had no more mind than a child 8 or 10 years old. He was subject to mental aberrations. One evening his two daughters, who were sitting on the porch, heard him whetting his knife and watched him. As soon as he got it whetted, he started to his wife's head to cut her head off. One of the daughters rushed in between and jerked her mother, who was asleep, out of his way, just in time to save her. His wife died about two years before his death. After his wife's death, one of the sons lived there with him for about a year. During this time he had to be taken care of as a child, and could not be trusted to be alone. At the end of the year the son rented another place, and got a tenant to come and live with his father, but the cooking did not suit the old man. He and the tenant got along badly, and finally a daughter, who lived in Indiana, on the opposite side of the Ohio river, agreed to take him to her house and take care of him; the other children agreeing that she should be paid out of the estate $1.50 a day for so doing. He remained at her house for 10 months. He then expressed a desire to go and see

"The law likes to uphold contracts that are made when people are dealing at arm's length, when each one of them is able to take care of his own interests, and when one is as able to understand the nature and effect of the transaction as is the other. But when one of the parties is old or feeble or weak, and the other is strong and vigorous, or when relations of extreme confidence and affection exist, the parties do not occupy toward each other that attitude of business freedom that would enable each to deal with the other on equal terms, and hence the protecting care of the courts." Gross v. Courtley, 161 Ky. 158, 170 S. W. 603.

"It may be that Noah Meade was not so feeble in mind as to have been unable to understand and appreciate the nature and effect of the deeds at the time he made and delivered them, but it can scarcely be doubted that he was under the supervision, domination and control of the three grantees and their friends and relatives. A man at his age in feeble health was in no condition to withstand the overtures of kind and designing persons much less that of those who lived in the same house with him and in a measure supplied his wants and took care of him." Price v. Meade, 182 Ky. 817, 207 S. W. 697. Judgment affirmed.

HAYES et al. v. HUDSON et al. (Court of Appeals of Kentucky. June 19, 1925.)

1. Reformation of instruments 16-Reformation may be had only where parties were laboring under mutual misapprehension, or where it does not express true agreement. Reformation of contract may only be had where parties, on signing, were laboring under mutual misapprehension as to legal effect, or where contract does not express true agreement, or contain all of the stipulations or agreements, such omission being result of mutual mistake or fraud.

D. H. French and D. E. Wooldridge, both of La Grange, for appellant.

J. Ballard Clark, of La Grange, for appellees.

SAMPSON, J. This suit was originally commenced by Frank Hudson in the Oldham circuit court, against appellants, A. Y. Hayes and W. S. Hayes, on two notes for $400 each, executed by the appellants to H. C. Hudson terest in an insurance business sold by H. C. as part payment for a one-half undivided inHudson to A. Y. Hayes in November, 1921, but by answer A. Y. Hayes, principal in the notes, pleaded that he purchased from H. C. Hudson a one-half interest in both an insurance business and a real estate agency, owned and operated by Hudson at the time, for the price of $1,600, of which he paid $800 cash, and executed the two notes for $400 each for the balance; that the contract was in writing; that by mutual mistake of the parties to same, and fraud on the part of H. C. Hudson in having the contract or agreement of copartnership prepared, one-half interest in the real estate agency, consisting of the sale of real estate on commission by H. C. Hudson, was omitted from said writing, which omission was not, at the time of signing said contract, noticed nor known to or by the defendant, and not until long after the execution of said agreement. The answer further averred:

the

H. C. Hudson that appellant was to attend to "It was agreed between himself and the said the business of the insurance, and Hudson was to attend to the sale of the real estate on commission, and that they were to divide the profits equally; that this agreement with respect to the real estate on commission was, by fraud on the part of H. C. Hudson, omitted from said contract or agreement. He says that by reason of said fraud and mistake that said writ

To warrant reformation of an instrument for mistake, evidence thereof must be full, clear, and decisive, and mere preponderance of evidence is not sufficient.

3. Reformation of instruments 45(15)Evidence not sufficiently clear to warrant

reformation of contract.

Where contract provided for sale of undivided half interest in insurance business, and one of parties insisted it should have included one-half undivided interest in real estate business also, evidence being conflicting, held not sufficiently clear, convincing, and satisfactory to warrant reformation.

Appeal from Circuit Court, Oldham County. Suit by Frank Hudson and another against A. Y. Hayes and another. Judgment for plaintiffs, and defendant named appeals. Affirmed.

fendant and said H. C. Hudson." true contract and agreement between this de

The answer closes with a prayer for a reformation of the written contract of copartnership to conform to the agreement as alleged by Hayes, and that Hudson be required to settle his accounts and to divide the profits arising from the commissions realized from the sale of real property, which were alleged to amount to $2,000. A reply made up the issues. The parties took proof by depositions. The evidence for appellant Hayes is to the effect that he purchased from H. C. Hudson one-half undivided interest in his entire business, consisting of insurone-half of which he paid in cash and exeance and real estate, at the price of $1,600, cuted his two notes of $400 each for the remainder; that before the written contract was drawn up it was agreed and understood he was to take charge of the insurance busi