October 10, 2012

Stapleton et al., v. Ewell, Laurel, 1900

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Click here for a list of my other Pulaski/Rockcastle/Laurel County KY articles

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STAPLETON et al. v. EWELL.

COURT OF APPEALS OF KENTUCKY

55 S.W. 917; 1900 Ky. LEXIS 535; 21 Ky. L. Rptr. 1534

March 10, 1900, Decided

PRIOR HISTORY:  [**1] 

Appeal from circuit court, Laurel county.

Action by R. R. Ewell against W. R. Stapleton and others on a promissory note and an account. Judgment sustaining attachment, and the claimants of the attached property appeal.

DISPOSITION: Affirmed.

COUNSEL: Eversole & Johnson, for appellants.

Tinsley & Faulkner and Ewell & Smith, for appellee.

JUDGES: PAYNTER, J.

OPINION BY: PAYNTER

OPINION

 [*917]  PAYNTER, J. Under a contract the appellee, Ewell, became surety for Stapleton & Wilder, partners in a lumber enterprise, on a note for $400, payable to the order of Ira J. Davidson, which note was executed for his timber, at the agreed price of $2.50 per 1,000 feet. It being necessary that Stapleton & Wilder should be furnished assistance, in the way of goods, merchandise, etc., for the cutting, hauling, sawing, and loading the lumber, Ewell, being a merchant, agreed to furnish such goods and merchandise as he might have on hand. To secure him against loss by reason of his suretyship on the $400 note, and for such advancements of merchandise, etc., as he might make, he was to have a lien on the lumber which they sawed, to be sold to the local trade and to be shipped; the lumber to be billed and shipped in his name. He was to receive the money for the lumber  [**2] sold. The money thus collected was to be applied as follows: First, $2.50 on each 1,000 feet sold, on the Davidson note; second, Ewell to retain enough to pay his account against Stapleton & Wilder for goods, etc., furnished,—settlements to be made monthly. Stapleton & Wilder were to prosecute the work with diligence, and, in case they failed to do so, Ewell had the right to take charge of the mill and machinery and prosecute the work until the Davidson note was paid, and until he was fully paid the sums due him for merchandise furnished under the contract. This contract was reduced to writing, and by its terms Ewell was to have a lien upon the Davidson timber and the products of the mill  [*918]  to pay the $400 note, and for goods furnished under the contract. The balance, due Ewell by Stapleton & Wilder for goods furnished was nearly $400. This action was brought on the $400 note, and for the balance due for merchandise. The defendants, Stapleton & Wilder, denied that they were indebted to Ewell in the amount claimed for goods furnished; alleging that they had delivered to him more lumber than for which he had given them credit. Ewell filed a reply, in which he denied the allegations of  [**3] the answer, and pleaded that he had made a settlement with them by which the lumber account was settled, together with all matters between them, and the balance ascertained to be due was the amount. There was no rejoinder. Hence these affirmative allegations as to the settlement stand uncontradicted. The defendants failing to deny that the settlement had taken place, or to plead a mistake in it, the court was bound to accept as true the allegations of the reply, and therefore properly fixed the amount due Ewell.

Section 249, Civ. Code Prac., reads as follows: "In an action to enforce a mortgage of, or lien upon, personal property; or, for the recovery, partition, or sale, of such property; or, by a plaintiff having a future estate or interest therein for the security of his rights, if it satisfactorily appear, from a verified petition, or from affidavits, or the proofs in the cause, that the plaintiff has a just claim, and that the property is about to be sold, concealed, or removed from the state; or if the plaintiff state on oath that he has reasonable cause to believe and does believe that, unless prevented by the court, the property will be sold, concealed, or removed from the state,  [**4] an attachment may be granted against the property." Under this section, Ewell was entitled to maintain this action. He had a lien upon the property, and a future interest in it, for the security of his rights. Ed Stapleton, the father of one of the partners and the father-in-law of the other, claimed some of the lumber attached. He claimed that he had bought and paid for it without any knowledge of the fact that Ewell had a lien upon it. He denied that he knew that there was a lien upon the property. In a reply to his answer, Ewell alleged that, the morning after the execution of the contract between him (Ewell) and Stapleton & Wilder; it was read over in the presence and hearing of Ed Stapleton, and that he had full knowledge of the same. Ed Stapleton failed to traverse these affirmative allegations. Although he may have been of the impression that the contract did not give Ewell a lien upon the lumber, and therefore could aver that he had no knowledge that such lien existed, still, if he was made acquainted with the contents of the contract, he was bound to take notice of its terms and effect, and that a lien did exist upon the property. He cannot escape the effect of the allegation  [**5] that the contract had been read to him by the statement that he had no knowledge that the lien existed upon the property. The court be low properly adjudged that Ewell's claim to the property was superior to that of Ed Stapleton. Stapleton & Wilder set up a counterclaim for damages, alleging that Ewell had failed to furnish the goods and merchandise as he was required to do by the contract, and his failure to do so had caused them to be damaged in the sum of $500. In the first place, the pleadings failed to allege that they could have sawed the lumber at a profit, or to state facts showing wherein they were damaged by Ewell's alleged failure to furnish the goods. In the second place, the record shows that they did not prosecute the work with diligence, and were not paying Ewell the sums to which he was entitled according to the terms of the contract. For these reasons, they failed to manifest any right to recover damages on their counterclaim. The judgment is affirmed.

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