disposition of the stolen money, although he says he did not do so. The jury that tried the case saw the witnesses, heard them testify, and reached the conclusion that Taylor was guilty. There is no claim that the jury were influenced by prejudice or passion, and their finding, upon the facts and circumstances before them, we will not set aside. The judgment is affirmed. HUSTONVILLE & COFFEY'S MILL TURNPIKE ROAD CO. et al. v. McANINCH'S ADM'R et al. (Court of Appeals of Kentucky. Jan. 17, 1919.) 1. TURNPIKES AND TOLL ROADS 31-COBPORATION-DISSOLUTION-ACCOUNTING. In turnpike company's stockholders' action for settlement of affairs and distribution of assets, the company was properly charged with full amount that had been due from county, though settlement was made for reduced amount, where deduction was for dividends due county and could have been credited on pro rata due county as stockholders; other stockholders being entitled to full amount. 31-DIS 2. TURNPIKES AND TOLL ROADS SOLUTION OF COMPANY-ACCOUNTING. In turnpike company's stockholders' action for settlement of affairs and distribution of assets, the company was properly charged with full amount of proceeds of sale of tollhouse, notwithstanding item in 1890 report reading "to amount collected on house and lot $275.00," where sale was made in 1906 and president of company while testifying did not explain item or claim it referred to such sale. 3. REFERENCE 100(4)—MASTER'S REPORTEXCEPTIONS. A party complaining of a master's report should point out, by exception, any errors therein and thus afford master an opportunity of correcting his errors, if any, or of reconsidering his opinion. QUIN, J. This is an appeal in the consolidated cases of the Lincoln County Fiscal Court et al. v. Hustonville & Coffey's Mill Turnpike Road Company and its president, G. C. Lyons. Appellees (plaintiffs below) allege they were owners of stock in the turnpike conpany; that by a sale of its turnpike it had ceased to be a going corporation; that G. C. Lyons, as president, treasurer, and manager, had in his hands certain sums of money belonging to the company arising from the sale of its roadbed and other property, and from tolls which had been collected. The petition asks that the affairs of the company be settled, the property on hand sold, and the assets distributed among the stockholders. The cause was referred to the master commissioner. The commissioner filed his report, and, exceptions to same filed by appellees having been overruled, judgment was entered: (a) Fixing the ownership of 338 shares of the capital stock of the company, and (b) adjudging that appellant Lyons, who had absolute control and management of the company, had collected and had on hand a sum of money aggregating, with accrued interest as of the date the petition was filed, $12,039.38, or $35.61 on each share of stock, and which sum the stockholders were entitled to have paid to them. Appellants contend the judgment is erroneous in the following particulars: 1. In adjudging that the amount received from Lincoln county on account of the purchase of a portion of the pike was $3,000, instead of $2,400. 2. In charging appellants with the proceeds of sale of a tollhouse as $550, instead of $275. 3. In adjudging that J. W. Drye was the owner of any shares of stock in the company. first two items the amount for distribution It being contended that by reason of the was excessive. These in their order. 1. Lincoln county agreed to pay $3,000 for the 61⁄2 miles of the pike in that county; but, having failed to receive any dividends from the company on the 60 shares of stock held by the county, it deducted $600 from the purchase price, paying only $2,400. This was November 19, 1901. [1] At the June term, 1914, of the lower court, the claim of the Lincoln county fiscal court was compromised and settled by an agreed judgment. Appellants contend they should only be charged with $2,400. Accord Appeal from Circuit Court, Lincoln County. Consolidated actions by H. H. McAninch's administrator and others against the Hustonville & Coffey's Mill Turnpike Road Company and another. From judgment rendering to this contention, Lincoln county could ed, defendants appeal. Affirmed. have retained the whole of the purchase price for its share of the dividends or as Geo. E. Stone, of Danville, and J. S. Ows- sets, and the remaining stockholders would ley, of Stanford, for appellants. have no cause to complain. We cannot see K. S. Alcorn and P. M. McRoberts, both of it that way. The amount of said deduction Stanford, for appellees. could properly have been credited on the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] 3. In paragraph 2 of the master's report, he states that J. W. Drye is the owner of 41 shares of stock in the appellant company. No exception was filed to this item. A party complaining of a master's report should point out, by exception, any errors therein, and thus afford the master an opportunity of correcting his errors, if any, or of reconsidering his opinion. pro rata due the county on its 60 shares, but | proper credits and debits that should enter the other stockholders were entitled to the into the making of his report. benefit of the full purchase price. The amount of said deduction, plus the sum received in settlement of Lincoln county's claim, did not give the county as much as it would have received under the judgment had it not settled its claim; hence the appellants were not hurt. Justice to the stockholders demands that in arriving at the amount for distribution the sum of $3,000 be treated as the sum received from the sale of the pike to Lincoln county. This plan accords an equal distribution to all based on the number of shares held. 2. In a report of the company filed with the county court May 3, 1890, this item is included in the receipts: "To amount collected on house and lot $275.00." Appellees claim this is a part of the proceeds of sale of a tollhouse to Mrs. Ellen Powers. There is nothing in the record to substantiate such a claim. In reaching the sum due the stockholders, the master includes $3,000.12, being the balance on hand May 6, 1893, as shown by report filed in the county court; the balance of the preceding year being brought forward in each succeeding report. In this wise the item of $275 enters into the aforesaid balance. The master also charges appellants with the sum of $550 received from Mrs. Powers for the tollhouse and lot, and appellant claims this is a duplication to the extent of $275. [4] The objection should have been made in the court below, but was not done. It is too late to make it now. Henderson's Chancery Practice, § 456; Magruder et al. v. Ericson, 146 Ky. 89, 141 S. W. 1195; Sullivan v. Sullivan, 147 Ky. 48, 143 S. W. 744. In fixing the amounts due the several stockholders, the court has charged the sum of $50 and interest against the amount due the estate of H. H. McAninch, whereas this charge should have been against the estate of J. S. Coulter. The court can correct this item upon the return of the case. This in no wise alters the amount of the judgment to be paid by the appellants, the amount due the H. H. McAninch estate being $106.83 instead of $24.18; that due the estate of J. S. Coulter $24.18 instead of $106.83. The judgment is affirmed. R. E. JONES & CO. v. NORTHERN ASSUR. (Court of Appeals of Kentucky. Jan. 14, 1919.) Facts held not to warrant setting aside of an award for partiality of the insurer's arbitrator or appraiser. 2. INSURANCE 570 FIRE INSURANCE ARBITRATION-QUALIFICATION OF ARBITRA TOR. [2] It is alleged in the petition, and admitted in the answer, that the sale of the tollhouse to Mrs. Powers was in 1906, the price being $550. We fail to see how the item of $275, appearing in the report filed in 1890, could be taken as a payment under a sale that did not take place until 16 years later. There is nothing in the 1890 report to indicate it was from this source. Besides, at the time the turnpike was being operated by the company, as was the case in 1890, it would hardly have disposed of so necessary a portion of its property as a tollhouse. Then, too, the president of the turnpike company was twice on the stand, and he probably could have explained this item of $275; but he did not do so, nor did he claim it was a part of the Ellen Powers sale. The answer admitting the sale as being in 1906 for $550, we see no cause for disturbing the judgment in this respect. The court is not favorably impressed with the attitude of the president, who owned 220 of the 338 shares of stock in the company, and who seems to have been its guiding spirit and of all persons the most familiar with its affairs. He seems to have adopted a policy of resistance rather than assistance towards the master in the latter's endeavor to ascertain the nated them. That an arbitrator named by insurers to adjust a loss occurring in Bowling Green was a citizen of Hopkinsville, a town only a short distance from Bowling Green, and in which the merchandising carried on was similar, did not disqualify such arbitrator to act on account of lack of information as to merchandising in Bowling Green. 3. INSURANCE 574(3) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ex-only preserved such rights as plaintiff then had under the rules of practice to have case transferred to common-law docket. 4. ARBITRATION AND AWARD 31 5. INSURANCE 574(2)—FIRE INSURANCE ARBITRATOR-EXTRANEOUS EVIDENCE. An insured, submitting to an arbitrator of loss under a fire policy, should not have selected a witness as an arbitrator, and such arbitrator had no right to present extraneous facts or give evidence before the board except such as was obtainable from the premises. 6. INSURANCE 574(1)-FIRE INSURANCE ARBITRATION-EXTRINSIC EVIDENCE. Appeal from Circuit Court, Warren County. Five actions by R. E. Jones & Co. against the Northern Assurance Company, Limited, Actions of London, England, and others. consolidated and transferred to the equity side by agreement, motion to transfer to the common-law docket for trial of questions of fact denied, and decree for defendants, and plaintiffs appeal. Affirmed. Sims, Rodes & Sims and G. Duncan Milliken, all of Bowling Green, for appellants. T. W. & R. P. Thomas, of Bowling Green, In action on fire insurance policies, defend- and Gordon & Laurent, of Louisville, for ap ed on ground of an arbitration and award, no error prejudicial to insured was committed by allowing the chief of the fire department of the city wherein the loss occurred to make a statement as to matters about which the insured's arbitrator had given evidence. pellees. SAMPSON, J. The partnership firm of R. E. Jones & Co., composed of R. E. Jones and E. H. Adams, were engaged in general merchandising in Bowling Green, in 1914 and 7. INSURANCE 574(3)—FIRE INSURANCE- 1915. In the first year appellees, Northern AWARD-FRAUD. If an arbitrator selected by the insurer acted corruptly and induced other members of the board of arbitration so to act in reaching and returning the appraisement and award, it was the duty of the court to set aside the award. 8. JURY 13(7) EQUITY JURISDICTION 374(2)-SUBMISSION OF FACTS TO JURY-ADVISORY VERDICT. If the chancellor submitted to a jury the question of fact as to whether an insurer's arbitrator was an impartial and disinterested appraiser, its verdict would have been advisory only. Assurance Company, Limited, of London, England, New Hampshire Fire Insurance Company, Scottish Union & National Insurance Company, Citizens' Insurance Company of Missouri, and Great Southern Fire Insurance Company, in five several policies for different sums insured the stock of goods of appellants against loss by fire. In February, 1915, and while said policies were in force, the storehouse was damaged and a large part of its contents was destroyed, and the remainder, more or less, damaged by fire. Each of the policies contained an arbitration clause, and shortly after the fire an arbitration agreement was duly executed between the insured and the aforesaid five companies, and arbitrators were selected, one by the insured, one by the companies jointly, and the two so selected agreed upon a third, who, in case of disagreement, was to act as umpire. The arbitrators, after qualification, met on the premises and made the following 11. STIPULATIONS 14(11) "We, the undersigned, in accordance with our appointment and the conditions hereinabove set forth, do hereby declare that we have estimated and appraised the sound value of the property herein described and the loss and damage thereto caused by said fire, and our award is as follows: Total sound value.... ..$8,726.91 7,526.91 "Witness our hands and seals at Bowling Green, Ky., this 27th day of April, 1915. "E. B. Bassett. Immediately thereafter the insurance companies offered to pay Jones & Co. the amount fixed by the board of arbitrators as the sound value of the stock, and take the sal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes vage or remnant of the stock undestroyed as provided in the policies of insurance, but this was refused. Several weeks later the five actions styled above were commenced in the Warren circuit court by Jones & Co. to recover on the policies, alleging that the stock was almost wholly destroyed by fire; that the actual cash value of the merchandise at the time of its destruction was $12,234.19, and that the companies had failed to comply with the conditions of the insurance contracts by paying the full face of the policies, which amounted to $10,000. In the meantime, the salvage or damaged goods saved from the fire and valued by Jones & Co. at $750, and by the board of arbitrators at $1,200, was sold at auction for $1,900, R. E. Jones bidding $1,850 therefor. The $1,900 was promptly paid over to Jones & Co. The answers denied the entire stock was destroyed or was worth $12,234.19, or any sum in excess of $6,500, or that the actual total loss was in excess of $4,000, but admitted that the stock had been damaged by fire on February 7, 1915. By a second paragraph defendants averred that: "There was a disagreement between this defendant and plaintiffs as to the amount of the loss and damage, and this defendant in good faith attempted to reach an agreement with plaintiffs as to the amount of the loss and damage sustained to said building. It states that there was a substantial difference between it and plaintiffs as to the amount of the loss, as this defendant was insisting that the loss and damage did not exceed the sum of $4,000, while plaintiffs contended that the amount of loss and damage exceeded $11,000, and defendant furnished to plaintiffs the facts and figures upon which it based its conclusion as to the amount of said loss, but that, notwithstanding these facts, this defendant and plaintiffs could not agree as to the amount to which defendant was indebted to plaintiffs under said policies. It states that thereafter, by reason of such disagreement, it demanded of plaintiffs that they agree to submit to appraisers the amount of loss and damage sustained to said insured property as required by the provisions of the policy above quoted. It states that thereupon the plaintiffs entered into an agreement with this defendant and the other companies which carried policies of fire insurance on this property, to wit (naming the companies), whereby all the parties concerned agreed to submit to two competent and disinterested appraisers the question of the amount of loss and damage caused by said fire, and also of the question of the actual value of the insured property immediately before the fire, and said agreement provided that one of the appraisers should be selected by the plaintiffs, one by the defendant and other insurance companies mentioned, and that the appraisers so selected should first select a competent and disinterested umpire, to whom the appraisers should submit their differences in case they should fail to agree. * * It and disinterested appraiser, one E. B. Bassett, and that thereupon plaintiffs nominate an appraiser of their choice and selection, one E. Brown, and the said appraisers so selected were agreeable to the parties, and the appraisers signed an affidavit as to their competency and qualifications." The defendants, further pleading, relied upon the award of the arbitrators as binding and conclusive upon the plaintiffs, Jones & Co., and as a bar to the prosecution of the five, or any actions. By replies Jones & Co. denied that the defendant insurance companies in good faith nominated or selected a competent or disinterested appraiser, and charged that Bassett, who was selected by the company as an appraiser, was an interested, incompetent, and disqualified person to act in such capacity, and that the companies and their representatives who made the nomination of Bassett did so with the fraudulent intent and purpose to obtain an advantage in the arbitration, and, further, that Bassett, after his nomination and qualification, acted in bad faith, and while so acting as an appraiser fraudulently estimated the salvage at too high a price and the sound value of the goods at too low a price and the depreciation of the stock at too great a per cent., and therefore the arbitration and award, being obtained by fraud, were invalid and without force or effect. The pleadings being similar and the issues identical, the five several actions were consolidated. A motion was then entered by defendants to transfer the consolidated action to the equity side of the docket for preparation. This was objected to by Jones & Co., but while the matter was pending the following agreement with respect to the transfer was made between the parties: "Pending the decision upon said motion, it was, and is, agreed between plaintiffs and defendants that each and all of the above-styled causes shall be, and the same are hereby, transferred to the equity docket of the Warren circuit court, without either plaintiffs or defendants waiving their right, if any, to thereafter have any issues out of chancery tried by a jury." The burden being upon Jones & Co., they proceeded with the taking of depositions in support of their several contentions, and when they were through in chief the companies took sundry depositions, whereupon Jones & Co. took several depositions in rebuttal, and the evidence was closed. At this point Jones & Co. moved for a transfer of the consolidated action to the commonlaw docket for a trial of certain questions of fact. To this the companies objected, and their objection was sustained, and this is states that, pursuant to the terms of the policy one of the chief grounds of complaint upon and of the said agreement, this defendant and this appeal. The case was then submitted, and the the other insurance companies above mentioned nominate and select in good faith a competent chancellor entered a decree sustaining the The appellants, Jones & Co., insist that the judgment should be reversed: (1) Because Bassett, the arbitrator nominated by the companies, was not qualified, disinterested, and impartial; (2) extraneous evidence was received by the board of arbitrators in the absence of the parties, without notice to them either of its purpose to hear evidence or of the time or place it was to be received; (3) the court should have submitted to a jury the issue of whether or not Bassett, the arbitrator selected by the insurance companies, was a disinterested and impartial appraiser. We will consider these complaints in the order named: award of the arbitrators, and, as there had to merchandising in the city of Bowling been a tender by the companies under sec- Green. This position however, is not tenation 634 of the Civil Code, adjudged the ble, because Hopkinsville is no great discost of the consolidated action against the tance from Bowling Green. In fact the two plaintiffs, Jones & Co., from that date. towns are in many respects much the same, and the merchandising carried on in the two is very similar. It must be granted, however, that in the arbitration and while the several questions of difference were being considered, Bassett strongly favored the position of the insurance companies, and, while this is true, it must not be overlooked that Mr. Brown, who represented Jones & Co. was equally vigilant for the insured. The umpire, Mr. Pushin, in his testimony makes it quite plain that Bassett insisted upon the rights of the companies, while Brown argued the side of Jones & Co., and when the two could not agree the umpire came in and settled the controversy. We are of opinion from the evidence that Mr. Brown, who represented Jones & Co., was as capable and as earnest in behalf of the insured as Bassett was for the insurers. Mr. Brown was a business associate of R. E. Jones. They were partners in real estate business, and Brown frequented the store of Jones & Co. In the arbitration Jones insisted that he knew the nature, character, and value of the goods in the Jones & Co. store because of his frequent visits there. He also urged that the goods which had been destroyed by fire were worth 100 cents on the dollar, although the fact is that the whole stock, or a very large part thereof, was secondhand and badly shopworn; that Jones & Co. acquired it from other retail merchants, who in turn had acquired the same goods from other retail merchants, and that some of the goods had passed through bankruptcy and had been sold and resold. Some of the goods were much out of date. On the other hand Bassett contended that the goods were so old that the insurance companies were entitled to a depreciation of at least 50 per cent. This question was argued pro and con by Bassett and Brown, and when they failed to come to an agreement the umpire, Pushin, fixed the depreciation at 15 per cent, thus allowing Jones & Co. 85 per cent. on the dollar for their stock. While the general rule requires disinterested and impartial arbitrators, it does not go to the extent of invalidating an award where the arbitrators are merely zealous for what they conceive to be the rights of the party who nominated them, and we are of opinion that the facts of this case would not have warranted the chancellor in setting aside the award on the grounds of disqualification of Bassett as an appraiser. [1-3] 1. Bassett is a merchant of several years' experience in the city of Hopkinsville. He had acted as arbitrator for an insurance company some years previous to the time in question; he had also acted as an appraiser for insurance companies only a short time before his nomination in this case, and this is the chief ground of objection to Bassett by Jones & Co. Appellants say that the fact that Bassett had acted as arbitrator for insurance companies on other occasions was unknown to them at the time of his appointment and action as arbitrator; that his selection so frequently indicated an alliance with and bias for the companies. The evidence, however, tends to show that Bassett is a man of good business ability and of wide experience in the mercantile business, and while he had acted upon two different occasions, one some 15 years before, and the other only a few months previous to his appointment in this case, no attempt is made to show that he was not honorable, just, and upright, except by inferences such as might be drawn from his frequent selection by insurance companies and his conduct in this case. The arbitrators met upon the premises and concluded the work in one day. Mr. Brown, who was selected by Jones & Co. was a business man of good repute, residing in Bowling Green; so also was the umpire Mr. Sam Pushin. The companies selected Bassett to represent them in the arbitration, and Jones & Co. selected Brown to represent them on their side of the controversy, and Bassett and Brown selected Pushin as umpire. Pushin's name was suggested by R. E. Jones, of the firm of Jones & Co. It will thus be seen that Jones & Co. nominated two of the three arbitrators. It was provided in the agreement of arbitration that any two of the three acting might return a binding award. It is insisted, however, that Bassett was a citizen of Hopkinsville, and that his home was so far removed from Bowling Green as to disqualify him to act in that locality on account of lack of information with respect [4-6] 2. As a general rule, arbitrators cannot, in the absence of the parties or notice to them of the time and place, receive extraneous evidence, which is calculated to have a material bearing upon the award. The fire occurred at night, but the fire department saved a part of the building and stock of |