Bazzell v. Bennett

• Decision Date: 20 February 1917
• Parties: BAZZELL v. BENNETT.
• Court: Kentucky Court of Appeals

191 S.W. 876

174 Ky. 164

BAZZELL v. BENNETT.

Court of Appeals of Kentucky.

February 20, 1917

Appeal from Circuit Court, Hickman County.

Suit by W. E. Bazzell against Joe W. Bennett. From an adverse judgment, plaintiff appeals. Affirmed.

Shelbourne & Shelbourne, of Bardwell, and J. M. Brummal, Jr., of Clinton, for appellant.

Joe W Bennett, of Clinton, and Robbins & Robbins and J. E. Warren all of Mayfield, for appellee.

CARROLL J.

The appellant, Bazzell, as plaintiff brought this suit against the appellee, Bennett, which suit on hearing was dismissed.

In his petition Bazzell averred, in substance, that on September 23 1914, he and W. C. Samuel entered into a contract with one George Warner whereby they purchased from him 235 acres of land which Warner had bought from G. W. Dodson; that in consideration of the sale of the land they assumed the payment of certain purchase-money notes due by Warner to Dodson; that as part of the contract Warner was to convey to Samuel 48 acres of the land, and to Bazzell the remainder 187 acres; that pursuant to the contract with Warner they were to see Dodson and get him to agree to their assumption of the Warner notes; that on September 24th they went to see Dodson and explained to him the contract with Warner, and were told by him that after he had consulted his attorney he would meet them in Clinton on September 26th and close the matter up; that on their return from Mayfield where they saw Dodson they went to see Bennett, an attorney at Clinton, and explained to him the purchase they had made from Warner, the land each was to receive, the terms thereof, and the arrangements made with reference to the assumption by them of the notes due Dodson, and Bazzell employed him as an attorney to represent him in the action and to draw up the deed and other necessary papers to secure to him (Bazzell) the title to the land; that Bennett accepted the employment and agreed to prepare the necessary papers; that on the same day they notified Warner to meet them at Clinton on September 26th, telling him that Dodson would be there to close up the matter; that on September 25th, and after Bazzell had employed Bennett to write the deed from Warner for the 187 acres of land, and he had accepted the employment, Bennett purchased the land from Warner and procured a conveyance of it to be made to him; that on September 26th, pursuant to the arrangements made between all the parties, Bazzell and Dodson met in Clinton for the purpose of having Bennett write the papers agreed on, when they discovered for the first time that he had purchased the land himself. The prayer of the petition was for a judgment decreeing that Bennett purchased the land to be held in trust for the use and benefit of Bazzell, and that he be required to convey to him the land, or, if this could not be done, that he have judgment for $2,095, the amount of damage he had sustained by the failure to get the land at the contract price.

In his answer Bennett specifically denied all the material averments of the petition, except so much as related to the fact that he had purchased the land, which was admitted.

In considering the record we think the opinion may be confined to the evidence relating directly to three propositions: (1) Did Warner contract to sell the land to Bazzell? (2) Did Dodson, whose agreement was necessary to the consummation of the contract, consent to the sale? (3) Did Bazzell employ Bennett to write the deed and such other papers as might be necessary to complete the sale and purchase of the land, and did Bennett agree to perform this service?

George Warner testified that he did not make any contract with Bazzell for the sale of his land; that Bazzell, in company with W. C. Samuel, came to see him, and Bazzell made him a proposition to buy the land, which proposition contemplated that Dodson, who held the purchase-money notes against Warner, would agree that Bazzell might assume the debt, and that he told Bazzell he might go and see Dodson if he wanted to; that after they left he went to see Bennett, who advised him not to sell the land to Bazzell, and that he made up his mind not to do it; that no writings were ever executed between them, is admitted.

Bazzell said that Warner first came to see him about buying his land, and that on the next day, Thursday, he went to see Warner with Samuel, and Warner told him what he would take, and he accepted his proposition provided Dodson would agree to it; that he went to Mayfield to see Dodson on Thursday, and Dodson said he was not at that time ready to say what he would do, but would let him know the next morning; that on Friday morning he went to the office of Bennett and told him about the trade he had made with Warner, which he expected to be consummated as Dodson would agree to it, and that he wanted Bennett to write a contract and a deed the next day; that Bennet said to him, "Come back, and anything I can do for you, I will do it;" that he asked him what he would charge, and he said, "I won't rob you." He further said that Dodson told him on Friday over the telephone, the same day he talked to Bennett, that he would meet him in Clinton on Saturday morning and to have Warner there; that on Saturday morning when they all met in Clinton he learned for the first time that Bennett had bought the land, and then said to him that if he had told him that he could not attend to the matter for him he would have gotten another attorney; that he told Bennett on Friday morning when he had the talk with him at his office that he and Warner had traded, and that he wanted him to write the papers; that Bennett did not tell him, after hearing his version of the trade, "that Warner had not made any trade with him, and he did not need any deeds or contracts written until he and Warner had traded." He said his trade with Warner was closed if Dodson would agree to it, and that Dodson did on Saturday morning when he came to Clinton agree to accept him as payor for the debt due by Warner, and this removed all obstacles to the trade. On cross-examination by the appellee, Bennett, he was asked these questions and made these answers:

"Q. You told Bennett that you had done made a trade with George Warner? A. Yes, sir; I told you. Q. You told me that you wanted me to write a contract for you that morning? A. Yes, sir; I did. Q. Why didn't I write one that morning? A. You says: 'I am very busy; you and Will go back and I will write one. Anything that I can do for you I will do it.' That was when we started out of the door, and I says: 'Mr. Bennett, what will you charge'? And he says: 'I won't rob you.' "

W. C. Samuel testified that, after he and Bazzell had gone to Warner's and from there to Mayfield to see Dodson, they went to Bennett's office on Friday morning and spoke to him about writing the contract. He said:

"I had bought the 48 acres of land from Warner, and Bazzell was to get the 187 acres. Bennett understood my part of the contract with Warner because he had written it."

He was further asked and answered:

"Q. Anything said to Mr. Bennett about the land Bazzell was to get? A. We told him what part. Q. What part did you tell him he was to get? A. All on the east side

...