October 20, 2012

Eades v. Owens, Wayne, 1903

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EADES v. OWENS.

COURT OF APPEALS OF KENTUCKY

74 S.W. 186; 1903 Ky. LEXIS 522; 24 Ky. L. Rptr. 2328

May 1, 1903, Decided

PRIOR HISTORY:  [**1] 
Appeal from Circuit Court, Wayne County.
Suit in equity by W. O. Eades against A. B. Owens. From a judgment for defendant plaintiff appeals.

DISPOSITION: Affirmed.

COUNSEL: Joe Bertram, for appellant.

S. C. Hardin, for appellee.

JUDGES: SETTLE, J.

OPINION BY: SETTLE

OPINION

 [*187]  SETTLE, J. About January 1, 1901, appellant sold his farm, in Wayne county, and at once began looking around for another. Appellee owned a small farm, of 43 acres, in the same county, at a place called "Alex." He also owned and operated a small country store on his farm, in which was kept the post office. Appellant, desiring to buy this farm and store from appellee, inspected them several times; having in the meantime opened negotiations with appellee, looking to a trade for the property. After two or three weeks of dickering between them, the farm and store were purchased by appellant upon the following terms, which were reduced to writing and signed by the parties: Appellant, by the terms of the written contract, was to pay appellee $1,500 for the farm, including the storehouse, and for the goods in the latter he was to pay cost, after deducting a certain amount for such damaged goods as might be found in the stock. The goods were to be invoiced March 1, 1901, at which  [**2] time appellee was to turn over to appellant the possession of the farm and stock of goods, and make Mm a deed to the farm, and the agreed consideration was then to be paid for both by appellant. The goods were invoiced, by which it was ascertained that they were of the value of $1,841.57. This amount, together with the $1,500 for the land, was thereupon paid by appellant to appellee; and the latter made appellant the deed, and gave him possession of the land and goods. Appellant continued in possession of the farm and store, and conducted the business of the store, until March 13th, when he became dissatisfied, and at once began to make overtures to appellee to sell the farm and stock of goods back to him. Appellee declined at first to buy back the property, as he had sold all of his effects and closed up his business, preparatory to his removal to another state; but, after repeated propositions from appellant, he did finally buy and receive back the farm and store at the price of $2,000 cash, and appellant then reconveyed him the property. Some two or three months thereafter it was claimed by appellant's family that he had become insane, and so upon an inquisition he was found by  [**3] the jury to be of unsound mind, and sent to the asylum, where he remained but a short time, and was discharged by the authorities as restored to soundness of mind, after which he returned to his home, in Wayne county. In the meantime, and while be was an inmate of the asylum, his father, who had been appointed committee for him, instituted this equitable action in the Wayne circuit court against appellee for the purpose of recovering $1,341.57, which sum represents the difference between the entire consideration paid appellee by appellant for the farm and stock of goods, and the sum received by appellant upon the resale of the same. The petition set out the alleged unsoundness of appellant's mind, and averred that such was the condition of his mind at the time of the last trade with appellee, and, further, that appellee, taking advantage of appellant's alleged want of mental capacity, overreached and defrauded him in the transaction of buying back the property, to the extent of $1,341.57, and asked judgment against appellee for that sum. After appellant's return from the asylum, he had himself made a party plaintiff in the action, and was substituted in the place of the committee,  [**4] who thereupon withdrew from the case, and has had no further connection with the same. Appellee filed an answer traversing the averments of the petition, and, after numerous depositions had been taken by both parties on the issues involved, the case was submitted to and tried by the chancellor, with the result that judgment was rendered dismissing appellant's petition, and allowing appellee his costs, and this appeal was prayed and is being prosecuted by appellant to reverse that judgment.

The record furnishes a great number of depositions, and a mass of contradictory evidence. A number of witnesses, mainly members of appellant's immediate family, testified to his unsoundness of mind, which they say began with the death of his wife, several months before the trade with appellee was made; that he nursed his wife through a long illness, and lost much sleep; and that her death seemed to greatly distress him. Two of his brothers testified to conduct and conversations in which he manifested, as they thought, hallucinations and fancies altogether unusual with him. They also testified to his having a fit in a field, and that he was several days regaining consciousness. One witness testified  [**5] that, about the time of the trade with appellee, appellant came to him and asked him to see a young lady in the neighborhood, and obtain her permission for him to visit her, which request the witness reluctantly complied with, and when he again saw appellant he told him the lady had given him permission to visit her, whereat appellant said to him, "Ain't you lying to me?" and, upon being assured by the witness that he was not, appellant shrugged his shoulders and laughed in a silly manner. One or two witnesses testified to his giving a duebill for barter at the store while he was in charge, without signing his name to it; and his son testified that he was unable to make up the mail, on one occasion, in the store. Two or three other witnesses ventured the opinion that his sale of the farm and store back to appellee at a sacrifice showed him to be of unsound mind. Upon the other hand, a good many witnesses who are well acquainted with appellant, but not related to him, testified  [*188]  that he was never of unsound mind, but was a man of average mind, and considerable skill and shrewdness. It appears that he sold his farm at a good price, and would not buy appellee's until he had repeatedly  [**6] inspected it; and his purchase of the stock of goods from appellee was attended with great circumspection, for he required it to be invoiced, and had his brother present at the time. During his possession of the store he bought bills of goods from two drummers, both of whom testified that he was apparently thoroughly at himself, seemed to understand what and how much was needed to replenish his stock, and what it was worth, and his purchases were made with caution and at the lowest prices to be had. Quite a number who saw him and had every opportunity to know his mental condition during the period of his supposed mental trouble testified to his sanity, and to his acts and conduct indicating that his mind was sound and his judgment good. One physician testified to seeing and talking with him about his trade with appellee at or about the time it was made, and he neither saw nor suspected any unsoundness of mind or want of mental capacity. There is no proof tending to show that he was urged, or even requested, to make either of the trades with appellee. Upon the contrary, it does appear that appellee was reluctant to abandon the idea of a removal to another state, and indisposed to buy  [**7] back the farm and store. No witness has testified that appellee said or did anything to induce appellant to make either of the trades with him, or that he in any way employed any sorcery or secrecy in any transaction with him. It appears that appellant was not present when the inquisition of lunacy in his case was held, and it also appears that he only stayed a short time in the asylum, and that since his release from that institution he has been entirely sane, and has attended to Business and to his own affairs in all respects as other men. Appellant makes no complaint, nor did his committee while he was a party to the suit, of the first contract he made with appellee. His only complaint is as to the second contract—the resale. The case is a difficult one to decide. The loss sustained by appellant in the resale of the farm and store to appellee was considerable; but if it was the voluntary act of a sane mind, and no fraud was practiced upon him by appellee in the transaction, he is without remedy. It appears that appellee is a man of excellent character, and, as already intimated, there is nothing in the record that tends to establish fraud or intentional wrongdoing on his part. Appellant's  [**8] eagerness to rid himself of the property which he had purchased of appellee may be accounted for upon the hypothesis that he found the mercantile business unprofitable and disappointing. It was doubtless one with which he was unfamiliar, and it is not unlikely that he, as has been the case with many others similarly situated, grew so sick of his purchase, and discouraged over the outlook, that he made up his mind to sell out and quit the business at any sacrifice. Upon the other hand, appellee insists that he has been put to great trouble and loss by his sale to appellant and repurchase of the property, as he sold out his personal effects at a sacrifice with the view of removing to Kansas; and he further claims that there were several other stores in a radius of one or two miles of his store, and that after the sale of the store to appellant, and during the latter's control of it, many of his best customers opened trade with the other stores, under the belief that he had quit business, and those customers have never returned to him. Altogether, and from the causes mentioned, he claims that he sustained a loss of at least $1,000. After a careful consideration of the case, and realizing  [**9] that it has been fully considered by a just and humane chancellor, whose acquaintance with the parties and witnesses, and familiarity with the record, doubtless gave him a full understanding of the case, and being unable to say that his judgment is against the weight of the evidence, we have come to the conclusion that it should not be disturbed, and it is consequently affirmed.



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