Opinion of the Court by
Judge PassingRieversiug.
This is the second appeal, of this suit. The opinion on the former appeal is found in 126 Ky. 809, 104 S. W. 971, 31 Ky. Law Rep. 1205. Appellant,. J. L. Jones, wa,s a saloon keeper in Paducah. He ran a saloon, or, as it is called, a 1‘ coffee house, ’ ’ in con*687neotio-n with a grocery. Albert Dumaine was Ms clerk, and assisted Mm generally in the conduct of Ms grocery business and the management- of his bar. It appears that during the absence of Jones the bar was opened and liquor was sold to divers persons on April 30, 1905. Thereafter the clerk, Dumaine, entered a plea of “guilty” in the police court, and! was ■fined for selling on Sunday. Following this the city brought a suit upon the bond of J. L. Jones, seeking to recover of him $1,000 for violation of his bond as a saloon keeper. The petition set forth at length the bond and the ordinances under which it was executed, and then, in the following allegation, charged the violation for which a forfeiture was sought: “Now the plaintiff says that the defendant J. L. Jones, in violation of Ms bond and covenant to the plaintiff, and of the laws of the Commonwealth, and the laws and ordinances of the city of Paducah, Ky., relating to coffee houses, did, on Sunday, April 30, 1905, wMle said license, bond, or covenant was in full force and alive, offer for sale and did sell spirituous, vinous, and malt liquors to divers and sundry persons, and that he did, in violation of his bond and covenant, and the laws and ordinances aforesaid, on said day, or date1, keep his coffee house open for the transaction of business, and did offer for sale and did sell spirituous, vinous, and malt liquors to divers and sundry persons as aforesaid at and in his coffee house, No-. 1037 Burnett street, Paducah, Ky.” — and prayed that the city be awarded judgment for $1,000 against defendant Jones and his bondsmen. All of the material allegations, except the execution of the bond and the existence of the laws and ordinances pleaded, were denied. On the former appeal the city was the appellant, judgment having been rendered *688against it. The case was reversed because certain evidence was excluded which Was, upon review here, held to be competent. Upon its return to thie circuit court the case was tried again, and a judgment for $1,000 was rendered in favor of the city against Jones and his bondsmen. From that judgment he appeals.
The question for consideration upon this appeal is necessarily a narrow one. On the former appeal this court, in passing upon the correctness of the ruling of the trial court, in excluding certain evidence, said that with the excluded evidence out of considera-, tion there was no case made out, and the judge properly instructed the jury to find for the defendant. The evidence for plaintiff’upon the last trial was no stronger than upon the first, and the plaintiff failed, to establish by the witness Dumaine the facts which it was alleged in the avowal it could establish, to wit, that defendant had been in the habit of keeping his, saloon open on Sunday. One witness for plaintiff testifies that he had been in the habit of going to appellant’s place of business every evening, and had theretofore been there on Sundays; but he also testifies that he had never bought or taken a drink in his saloon before the Sunday in question, and no witness testifies' to ever having seen this saloon open on any Sunday before April 30, 1905. This was the proof which appellee said it could make if permitted to do so, and the case was reversed, that such opportunity might be had. We have read and re-read the record, and failed to find a scintilla of evidence to the effect that either the defendant or his clerk had ever, at any time before the Sunday in question, kept this saloon open. On the contrary, it is shown that they had kept it closed. No case was made out, and *689the motion for a peremptory instruction should have been sustained.
The. judgment is reversed, and cause remanded for further proceedings, consistent herewith.