October 1, 2012

Shadoan, et. al. v. Keeney, Pulaski, 1900



56 S.W. 506; 1900 Ky. LEXIS 411; 21 Ky. L. Rptr. 1819

April 25, 1900, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.


COUNSEL: O. H. Waddle, for appellants.

W. A. Morrow, for appellee.




 [*506]  GUFFY, J. - It is alleged in the petition of appellee: That in 1894 he purchased from Phillippi & Dodson a steam sawmill, and in part payment for same he agreed and promised them to furnish them a certain lot of white oak timber, and they agreed and promised to pay him therefor the sum of $18 per M for ones and twos, and $9 per M for culls. That at said time there was a lien on said mill, held against said Phillippi & Dodson by defendants Shadoan and Dugan, which was undischarged. After he purchased the mill at the special instance and request of the defendants, the said contract with said Phillippi & Dodson for the timber was transferred to defendants by mutual agreement of all parties, and defendants agreed to receive same on same terms and prices. That at the special instance and request of defendants he sold and delivered them 29,000 feet. Said lumber was of the value of $325.60. That defendants failed and refused to credit the  [**2] value of the lumber on the mill aforesaid on their lien against same, and by proceedings in the Pulaski circuit court obtained a judgment to sell the mill to satisfy said lien. That they now refuse to pay for said lumber, and plaintiff prayed judgment for the value thereof. The answer is a plain denial of any contract or purchase of timber of any kind from plaintiff. A jury trial resulted in a verdict in favor of plaintiff for the sum of $231, and, appellants' motion for a new trial having been overruled, they prosecute this appeal.

We are not inclined to the opinion that the court, under the pleadings and testimony in this case, erred in respect to giving or refusing instructions. It may be conceded that the evidence is conflicting. But it was the peculiar province of the jury, who saw the witnesses, and probably were well acquainted with them, to weigh and determine as to the real facts. We conclude, therefore, that the evidence was sufficient to authorize the verdict, We do not think this is the kind of case that required a specific measurement or formal delivery to the defendants in order to, pass title or authorize recovery. The evidence tends to show that the timber was delivered  [**3] at the place indicated by the appellants, and also delivered before the time at which the debt fell due, and it does not appear that any particular time was specified as to the delivering of the timber; and, inasmuch as the debt was not due until some time in 1896, we cannot assume that the timber was to be delivered before the debt would fall due. We also think the jury were authorized to believe that the appellants knew of the delivery of the timber at the place specified, and that they knowingly refused to take charge of it, if in fact they did not get it, or realize the benefit of the delivery. Judgment affirmed, with damages

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