Aultman & Taylor Co. v. Mead

• Decision Date: 16 January 1901
• Citation: 109 Ky. 583,60 S.W. 294
• Parties: AULTMAN & TAYLOR CO. v. MEAD et al. [1]
• Court: Kentucky Court of Appeals

60 S.W. 294

109 Ky. 583

AULTMAN & TAYLOR CO. v. MEAD et al. ^[1]

Court of Appeals of Kentucky.

January 16, 1901

Appeal from circuit court, Letcher county.

"To be officially reported."

Action by the Aultman & Taylor Company against James M. Mead and Albert Mead to enforce a mortgage lien. Judgment for defendants, and plaintiff appeals. Reversed.

Kennedy & Williamson and Tyree & Adams, for appellant.

S. B Dishman and S.E. Baker, for appellees.

BURNAM J.

In October, 1883, appellant sold and delivered to appellees a sawmill and appurtenances at the price of $1,900. A part of the purchase money was paid in cash, and for the balance three notes were executed, aggregating $1,595. To secure the payment thereof, appellees executed their mortgage on the sawmill and appurtenances, and upon six tracts of land lying in Letcher county, aggregating 900 acres. They failed to pay these notes at maturity, with the exception of a few hundred dollars, and in the summer of 1885 they were delivered to an attorney in Floyd county for collection. He wrote to the appellees, who resided in Letcher county, asking that they be paid. In response to this communication, first Mr. Albert Mead, and subsequently Mr. James M. Mead, went to see him and it was agreed that suit should be instituted thereon at the ensuing October term of the Floyd circuit court. And, in consideration that no steps should be taken to enforce the judgment until after January 1, 1886, James M. Mead authorized the attorney to prepare and file an answer of appellees to the suit which was thereafter to be begun consenting to a judgment enforcing the mortgage lien, and waiving all questions of jurisdiction which might arise as to the power of the Floyd circuit court to render the judgment. This answer was sworn to on the 10th day of September, 1885. Subsequently the proposed suit was filed, and also the answer which had been previously sworn to by James M. Mead, and thereupon judgment was entered directing the master commissioner to sell the sawmill pursuant to the terms of the judgment; and in February, 1886, the sawmill, engine, etc were sold by the commissioner on the premises of appellees in Letcher county, Ky. at the price of $700, to one Fitzpatrick. Appellees were both present at the sale, and, according to the overwhelming weight of testimony in the record, made no objection to the sale. After the sale they assisted the purchaser in taking town the mill and removing it from the premises, going a part of the way home with the purchaser. This sale was confirmed by the court, and the proceeds credited upon appellant's judgment. No further steps seem to have been taken by either of the parties until the institution of this suit, in 1897, in which appellant sought to recover of appellees the balance due it on the notes, and to enforce its mortgage upon the real estate in Letcher county. Appellees filed a general and special demurrer to the petition. The special demurrer was based upon an affidavit that appellant was a foreign corporation, and had failed to file with the secretary of state a statement designating its place of business and the name of its agent upon whom process might be executed. The demurrers were overruled. They thereupon filed an answer in three paragraphs. In the first paragraph they denied that they were indebted to appellant in any sum on the notes sued on. They did not deny the execution of the notes, or set up any facts in bar of appellant's right to recover. In the second paragraph they allege that plaintiff had, in 1886, forcibly, and against their will and consent, taken possession of the sawmill for which the notes were executed, and converted it to its own use, and that by reason of such conversion the consideration for which the notes were executed had failed. In the third paragraph they make their answer a counterclaim, and ask judgment against appellant for the various sums of money which they had paid on the notes, aggregating the sum of $727.62, with interest thereon from the date of the payment of the several items thereof. To this answer, and each paragraph thereof, appellant demurred, which was overruled. It thereupon filed an answer, in which it denies the alleged forcible seizure and conversion of the sawmill, or that the consideration for which the notes were executed had failed. Subsequently it offered to file an amended reply, in which it recited all of the facts in connection with the suit instituted by it in Floyd county in October, 1885, and the sale of the sawmill pursuant to a judgment entered therein. The court refused to allow this amended reply to be filed, and subsequently it tendered and offered to file a second amended...