xt73bk16mf8w_449 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [317a] E.I. Dupont De Nemours Powder Company v. L&E, Perry Circuit Court text [317a] E.I. Dupont De Nemours Powder Company v. L&E, Perry Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_44/Folder_10/5200.pdf section false xt73bk16mf8w_449 xt73bk16mf8w BAILEVP.\VOOTTON JESSE MORGAN
WOOTTON S: MORGAN
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' ,.‘/M//,)'/’////’,.//;,, May 5th, 1913
Mr. Samuel M. Wilson, '
General Counsel L.& E. R'y.,
Lexington, Ky.
my dear sir:

I have just received your letter of May 3rd, with copy of
your letter of that date to Messrs. Wootton & Morgan relative to
answers in the lien cases. I thoroughly approve of your suggestions
and think it imperative that they be carried out.

I take it from your letter that Mr.Winn is in Lexington. If
so, I should think it proper for him to return to Hazard at once in
order for him to have at hand, for prompt use by the attorneys in the
preparation of all answers, all the available information with respect
to each claim.

I have received this morning a letter from Wootton & Morgan
which is as follows:

"Do you desire us to plead as a defense in the
T.W.Smith claim, for work done under Jones—Davis,
the pendency of the A.D. Campbell suits against
T.W.Smith and L;& E. Ry. Co. for about $1,300
damages by reason of explosion which recently
occurred On Smith's work under contract with Smith & Regan.
Mr. Spencer is here and we are preparing the answers
in all the lien oases thatwere not settled by Winn."
I have wired them as follows:
_ . "Your letter relative to defense in T.W.Smith claim
./ ' . received. By all means plead the pendency of the
1 £3” / 2 [‘3 Campbell suit. I suppose you will have to allege
‘,W,.xfl9%;n0'm‘ insolvency and may have to enjoin prosecution of the
a {f_ . .l lien claim until Campbell suit is decided. I assume
3 .. - bonds for cost have been required by all non—resident
: . . plaintiffs.If this has not been done please attend to
"x giftwmwgfl 2 it at once. I fully approve Mr.Wilson's letter to you
‘““' of May 5rd and trust you will carry out his suggestions."
I hope you will keep a close watch on the pleadin§%u%n these cases
as it is extremely important not only that we interpose,‘ e ensefbut that
we save every point. I called attention to bonds for costs though I
assume that that has been attended to.
Yours very trulyg-u,‘gdg77_d pwrgmwme
' ' General Attorney

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Hossrs.‘¥ootton & $03537, Attorneys at law,
Easera, Ky.
Gentlgflonz~
' K have just had a talk with Ir. Tinn in reference to
the lien Claims :lfish he has recently priC off at Kanarfi, 93C ulfio
4-, new-"..’.t :. 4-: a 1-: .- wast“ x .M 1- ~ ..' J. 7 a"
.111 .LE‘LHLU UO os‘<.:SO .:.J.CJL C.L~;,!L: ‘.'.’...LOT. - l0 ‘uO DC CO..u(: UG(L. NJ...
171331 is tutécr' the irrprerwsiox ‘fizat igi Caikutfiitu; iflie snttks jzunvfivfiaig
lixn claims which remain to be tried that you will afloat the uni—
furm pelflay of yleafiing non-liability and will not attempt in any
4 . , ---._ - ‘ ~ .- - .- -
case to plead payment. fir. inn informs we that a number oi the
claims ufion which suit has been Zrouyht anfi wlieh remain to be
settled”hnve heretofore been naifi in full and that as to other
claims still in suit partial yayments have been mafia, the amount
so paid bhing the amount Claimofl by the attorney representing the
licn—holéer.
If I may offer a suggestion in regard to What I eon “lye
to he the proser course to adopt in hanflling these contestea claims,
it wouflfi be this a
1. As to any Claims upon which the I e I admits no liability
whatever, to simply ent r a plea of that character;
8. As to any claims which have been paid, to enter a plea
of'non-liabi”ity and also a plea of yayment in full;
5; as to any Claims upon which partial fieynonts have been
J
hade:in any sum whatsoever, to anit liability to the extent
of the amount so said, and then to plead that the amounts 1}?

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HAZARD, KY.
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‘ WOOTTON & MORGAN
. Aitnruvue at 11$ :1 in
HAZA;D, KY. April 23th,].915.
E.S.J0uettc
General Atty.,L.m H.Ry.,
louieville,Ky.
Dear Sir:—

The uttonneys representing the lien holders in this County,
against the ruilroud desire to begin taking depositions in those cus—
es on next Vedneoduy and we Hunt to ask you if you could not furnish
an attorney to holy us in the preparation of thee? cesee,in as much
as our entire time will be taken up with other cases in getting ready
for the may term of Court,which coneenes second Honduy in May. It
takes at least one name of every duy of our time to keep up with

/

g the raieruu worxkis we have to furnish three copies of every suit

: \_ fl

‘ fileu,togctner with docket sheets of each suitgum suits are filed
at the rate of two or three c ouy,teginning eitn the Police Court

‘ and taking in the Justice‘s Court all OVer the County and ending
in the Circuit Court.;E§ete eye ezer thirteen hundred of these
lien ggeee,anu QEEEEJ9n$”LEDRSQEQ~S£MF¥Q§WFE%}flp3 conteeteu by
the ruilroud,us we understunu,und in fact they will begin to take
depositions in all of them this week. There have not been any unenere‘_
' filed in any of tu§§QJQ§§§§;WXQu,cun recoil? eee the predicament we
5;; in She tguet you Can see your way clear to furnish a man to help
us out. We write you direct because we understand you have churge of
the lien cases.
Very truly yours,
Copy to S.J.fiilson. ___“
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Perry County liens on L. & E. extension growing out of Jones Brothers'

contract.

Mr. S. m. Wilson, i??? 3., )13

General Counsel, L. & E. Ry. Co., 5%?9

Lexington, KY.
Dear Sir,

Enclosed I hand you copy of letter I have just written to Mr.
Spencer, Winchester, Ky., and coPy of one I have written to Messrs.
Wooton & Morgan, Hazard, Ky., which explain themselves. I understand
how your work is balled up but I hOpe you will be able to keep an
eye upon this situation at Hazard as it it going to need diligent
attention and competent oversight,

Yours very truly,
General Attorney.
encs

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,“_?flh/m/eg’. J/lerii 30, 1915 .
Perry county liens on L. d E. extension growing out of Jones Brothers’
contract.
messre. Wootton & Morgan,
Attorneys, Hazard, Ky,
Gentlemen,

I received yesterday your letter relative to the congestion of
your work which you thought required assistance. I have arranged with
Kr. C. F. Spencer of Winchester to come to Hazard at once to help you
out in the matter. You are clearly mistaken, however, about the
number of the suits. While it is true that there are about 1300
liens, yet you will remember that we paid off at the outset over
$60,000.00 of those. Mr. Winn is paying in the neighborhood of
$20,000.00 this week and the other two largest lions asserted by
the Du Pont Powder Co. and the Killer Supply Co. aggregate approximatei
1y $20,000.00 80 that the lions in contest consist only of those
above this $100,000.00. I send you herewith cepy of a full letter
to mr. Spencer giving him the necessary information as to these
matters and also certain euggestinne about handling them. I know
how crowded you are and the inclination you will have to lay aside
this letter and road it later but I would be glad if you would take
the time to read it over carefully so as to get in mind my views
about the different phases of this question and I would then be glad
to have you write me wherein you differ, if at all, from my views and
also write me any additional suggeetions that you have in the matter.

 .’.
W&M~—2 ’

A careful perusal of the letter will also enable you to
preperly confer with Mr. Spencer to whom I know you will give
your cordial support and assistance.

It will be impossible for me to come to Hazard, so I will
have to rely upon you gentlemen in connection with Mr. Spencer
seeing to it that no gaps are left down and that our rights are
fully presented as well as safeguarded.

Yours very truly, .
General Attorney .
enc

 *0
April 50, 1913.
Mr. Chas. F. Spencer,
Winchester, Ky.
Dear Sir:
Confirming our telephone conversation yesterday I write to
request that you will, if possible, go to hazard tomorrow morning
to assist Wootton & Morgan, our attorneys at that place, in the prep—
aration of the lien suits pending in the Perry Circuit Court.
I have had a talk with mr. Wilson, over the telephone, and
he is very much pleased to have you do this and will co—operatewith
you in any way he can though he is so tied up in other engagements
for some time to come that he will probably be unable to take any
part personally at Hazard in the work.
That you may understand the situation I have thought it
well to make this brief resume of the history of the lions and the
lien suits:
In the fall of 1910 Jones Brothers, a partnership, entered
into a contract with the Lexington e Eastern Railway Company for
‘ the construction of a section of the Horth Fork Extension, beginning
at a point about four miles above Hazard and extending down the river
to the Breathitt line. I may not have these points of beginning and
ending stated with exact accuracy but it is near enough for the
present purposes.
Jones Brothers immediately organized the Jones—Davis Co.,
a Kentucky straw corporation, the bulk of whose stock was issued in
return for the assignment of this work. This assignment was never
recognized by the t.& h. which continued to conduct its dealings .
with Jones Brothers, the original parties to the contract.Theoretically
Jones Brothers were turning over the estimate for each mile to this
corporation but in that they apprOpriutod a large part to their oun
private use and. as a consequence, the Jones4Devis Company, which had
no capital, became heavily involved. It failed to pay its September
and October pay—roll, though we advanced them $60,000 in those two
months upon their assurance that the money .thus advanced would be 1
applied at once upon the labor bills. This was not done, and on '
Saturday November 4, the lust of several days fixed by them for
paying their labor, when they were unable to pay, the work ceased
and the condition become very desperate. On the following Monday,
Hov.6th, 1911, the L.§ E., through Mr. J.E.Tilloughby, its Chief

 ‘0

0.15.5. 2
Engineer of Construction, took charge of the work and under the terms
of the contract also took charge of the equipment. The work was
then finished by the h.& E. about July 1, 1912.

When the L.& 3. took charge on Nov.6th, there was a great
horde of foreigners on the work who threatened to 33313 blow up
the bridges and other expensive construction with dynamite and to
do all other sorts of lawless things. In order to satisfy them, as
also to retain them on the work for a continuation of the construction,
the L.& 3. announced that it would pay all labor provided, of course,
valid lions were filed therefor.

Within the next week or ten days some 1200 to 1300 liens
were filed under the provisions of Sections 2492-8495 of the Kentucky
Statutes. You will observe that a lien is given for labor,
materiel, supplies or teams, and the Chief Engineer and his Assistant
immediately paid all of those liens which were filed in favor of
laborers who remained in the work. This amounted to something over
$60,000.

I was at Hazard on the 6th and 7th of Hovember but returned to
Winchester leaving the matter of payment in the hands of the
Chief Engineer and his resistant who were to he guided in all legal
matters by honors. Wootton & Eorgan. ‘

. fir. P.B.Uinn shortly succeeded the temporary paymester and
has held that position ever since. Hr. Finn had his two assistants,
Homer hecfieil of ?inchester, and Ben Calhoun, a book—keeper rho was
in the employ of Jones Brothers, thereafter had an abstract of
every lion in the Clerk‘s office made, in what they called their
lien-book and from the pay-roll of Jones—Davis Co. and all other
available record sources, checked up each lion claim so as to
determine What part, if any of it, was valid. Kr. Winn has this
record.
After paying the original labor claims, to which I alluded

above, we refused tepay any other liens upon the idea that a
prepcr construction of the statute required the lien claimant to
file an antecedent statement of his intention to claim a lien before
he was in position to prove his lien by filing a final statement
within sixty days after ceasing to labor, etc. This hung up the
adjustment of all the unpaid liens as nobody had filed the ante-
cedent statement. A test case was taken to the Court or fippoals,
Grigsby vs. L.& h. E'y., which was decided Hov.14, 1912,(150 Ky.5573
in favor of the validity of the lions. we then filed a petition
for rehearing raising the question for the first time that the lien
was not valid because the materials in question were furnished to a
sub—contractor, Whereas the statute meant, so we contended, that there
was no lien except where the labor, material etc. was funnifliod to
owner or a contractor. The Court of Appeals rejected our contention

 Q. .
0.3.fi. 3.
and hold that the lions were good though furnished to subcontractors
:33 1513113912 (152 Ky. 164)

Meantime suits were filed upon practically all of the unpaid
liens. The most important suit was that of the h.l.DePont do Hemours
Yonder Company knich has a lien claim of about $14,000.

The next most important claim is that of the uiller Supply Company
for ayproximately $10,000. As to these two claims I am undertaking
to look after the preparation of the cases so for as the proof, or any
possible adjustment, is concerned, but I have had nothing to do
with the pleadings in these as I assume fir. Wilson and Messrs.Wootton
& Horgan were looking after all the pleadings thich, unaer the decision
of the Court of Apneals, will consist merely of a denial of knowledge
or information that will put the claimant upon proof of his entire
claim. ~

. If such answer has been filed in the lu?ont case and the
Jillor Supply 00. case I wish you would attend to that along with the
rest. .

he to the other liens will Say that Hr. inn hes mzflnxznx met the
representatives of each claimant and gone over them.In the light of
the information he has obtained concerning the real merits of those
claims one as.c result of these conferences he has agreed upon other
claims to be paid aggregating $18,000 approximately. He is paying these
off this week at Hazard. ~(This, you will note, raises the amount of
the claims pain to about $80,000, and the DuPont ?onder Co. enfi the
Lillor Supply Co. claims will increase it to about filO0,0GO. There
remeinx, therefore, no other claims to litigate about except those
which Hr. Winn has been unable to adjust in these recent conferences
and also certain ones thich we think are not Valid liens.

I suggest that While it may appear .confusing to you at the
outset, if you will go right at it in the light of the foregoing
explanation you will be able to make up an abstract of the suits still
pcnfling. a comparison of which with fir. Tinn‘s book will Show you the =
trouble with each of such contested liens.

In a number of instances no suit was ever filed either as an
original proposition or by cross—petition or by asserting the lien in
the suit of the Fowder Company or any other original suit. In all such
cases the lions are barred if the claim was not set up within twelve
months, end and if suits have been filed by any after the expiration
of twelve months the plea of limitation shoulfi be interposed.

With reference to those that have been filed in time you will
find, I think. that the defenses will fall into oertnin comparatively
well defined groups of which the following are among the impertant ones.

 I
0.?‘51. 4.
1. Right at the outset it appears that certain individuals.
particularly 3. Y. Combs and Dr.@aylor Hurst had bought up
a considerable number of those claims ogcinct the Hones-Davis Company.
I was cokod about it while at Hazard on Hovembcr 6th and 7th
but declined to commit the company in any way except to say that
undoubtedly under tho decisions of the Kentucky Court of Appeals
the iecigneo could not make the affidavit nccoseury to a valid
lien, and hence that the best thing that could be done would be
for tho assigncee to get the original claimants to make those
affidavits but I distinctly declined to commdmthe company to the
acceptance of such a course as a compliance with the otctute.
After reflecting uPOn the gncetion I do not believe that
the filing of those affidavits by the original claimants make the
lions valid for the reason that in no instance is the affidavit
true. FOr example, if laborer A. assigned his claim to
D.Y.Combs he certainly parted With all interest in it and could
not thereafter truthfully swear that he had this claim against the
Jones-Davis Company for, in fact, so for as ho was concerned he
had been paid and had parted with all interest in the claim.
1 cm cwuro that it seems an apparent hardship tor the
ascigncc to be unable himeolf to assert the lion and at the same
time be deprived of having the cosigncr assert it for him but
- I see no way to avoid the conclusion that I have suggested above.
As to these claims. therefore, to Want to centeet their validity
ucon the foregoing grounds as well as uqu the merits.
2. There is c class of claims for hauling goods from Jackson up to
inn the camp near hazard.
the Court of Appccle hue held that lculing material that is
used in the construction of the road is a lienable claim, but a
large proportion of each of these claims embraces the hauling of
groceries and other articles that are not lieneble, so we went to
prove as clearly as possible what articles are embraced in each of
these claims. i imagine if the clsimente catch on to our point r
they will endeavor to Show that it concietcd particularly of cement
and cxyloeivce which are confessedly lieneble articles. I do not
know just how we will be able to protect oureelvcs against those
claims but you who are on the ground will have to work that out
in the best manner practicable.

 Q. .
C..;TO'S‘I 5'

5. Another class which I imagine is a Small one, after exclude
ing the Killer Supply Company which I am looking after, relates to
Claims for tools, light rail, machinery and other articles which
were employed but not consumed in the construction of the railroad.
These, I do not think, are licnable.

4. There were certain subcontractors under the Jones—Davie
Company to whom we paid 90? of their bills when we took over the
work, retaining 10? to see whether or not that would be owed at
the conclusion of the work.

As to these we have decided that under the decision of
the Court of Appeals giving subcontractors a direct lien upon
the property under the statute, and not through the contractors,
that we owe this 10? but it is possible that some of the lien claims
which we have actually paid were for labor, materials, supplies or
teams furnished to these subcontractors and in every such instance,
of course, we should deduct the amount thus paid from the 10% now
owing. Ir.?inn can tell you whether there are any claims of
this kind. I doubt if there are any of any consequence.

5. in the case of several claims there have been assignments
of the amounts to third parties or there are suits pending against
such sub—conjzrwtorcs and the ha; 2‘.. Jointly for injuries to
person or property. In the case of such suits uc Will, of course,
want to hold the money to await the determination oi such suits.
And, of course, where there are assignments or attachments we should
be equally protected against them.

6. There may be some other claims in which the defense would be
more than a more denial of knowledge or inJ01mation but I do not
now recall then. hr.¥inn or the attorneys can probably inform
you about these if there be any such.

I will append as a postscript of this letter a memorandum of
authorities on the propositions of law hereinabove discussed. ‘

I received a letter from losers. WOotton a Morgan yesterday
advising that they had net filed the answers in these cases and that
the other hide were expecting to take depositions this week. They
also stated that theyawere so many of the suits, and that they were
so badly swamped with the other railroad business and the private
business, that they had to have assistance in these lien matters.

I Wish you would feel authorized, therefore, to roll up your
SleGVeS and go right into the preparation of these cases.

' I imagine that the answer will be practically the same to
nearly all of them so that you might prepare the form leaving proper
blanks and have them run off upon a mimeograph or made on the type—
writer a number of copies at one time.

I trust, however, that you will give each claim your careful
personal attention so that our defense to each may be accurately

presented.

 . ,
C C F. '(7‘ O 6 O

I think these answers should be filed at once and notice
given to the attorneys. The reason that they have not been Tileo
before is that Wootton & Morgan had an agreement rith all the
local counsel that all of those suits Shoula pond actual
determination by the Court of lopeols of the questions involved
in the test case of Crigsby vs. U.& E. Ry., supra.

It is quite possible that we will have to go back to
the Court of Appeals again upon those questions of assignment
and uyon the oontrovoroy em to that articles ere lionoble. You
till, therefore, see that all orooor exceotions are saved so
thet all of our rights will be preserved.

I spent several hours here one night last week with the
president of the Lillor Sup