Bewley v. Moremen

• Decision Date: 06 January 1915
• Citation: 162 Ky. 32
• Parties: Bewley, &c., By et al. v. Moremen, et al.
• Court: Kentucky Court of Appeals

Page 32

162 Ky. 32

Bewley, &c., By et al. v. Moremen, et al.

Court of Appeals of Kentucky.

Decided January 6, 1915.

Appeal from Meade Circuit Court.

LEWIS & ASHCRAFT for appellants.

CLAUDE MERCER for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE MILLER — Affirming.

In 1906, the appellee, L. B. Moremen, sold to B. F. Bewley ten town lots in Medford, Oklahoma, for $450 in cash. For purposes of convenience, the property had theretofore been conveyed to John P. Haswell, Jr., by Moremen and wife, and Haswell made the deed to Bewley, although the sale was really made by Moremen and the Rock Island Lot & Land Company, of which Moremen was president. As an inducement to the purchase, Moremen, as president and individually, executed and delivered to Bewley the following paper:

"This is to certify that the Rock Island Lot & Land Company will guarantee an advancement of 100% in value over the purchase price within the next two years from the day of the opening of ten lots this day sold in the town of Medford, Oklahoma, to Mr. B. F. Bewley, and if said lots do not so advance, then the company agrees to refund the sum of $450, with legal interest thereon from date of payment.

                                      "L. B. MOREMEN, President."
                    (Seal)
                "March 31, 1906
                

"I personally guarantee the above.

                                             "L. B. MOREMEN."
                

B. F. Bewley having died, his widow and infant son, who sues by his guardian, brought this action upon the guaranty, in October, 1912, to recover the $450, with interest from September 19, 1908. A demurrer having been sustained to the original petition, the plaintiffs filed an amended petition on April 30, 1913, offering to reconvey said lots to Moremen as soon as he should pay the plaintiffs the sum of $450, with interest thereon from March 31, 1906, and praying that the court, through its master commissioner, convey said ten lots to the appellee Moremen for and on behalf of the widow and infant child of B. F. Bewley, and for judgment against Moremen for said $450 with interest from March 31, 1906. In a second amended petition, filed October 11, 1913, it was alleged that the claim of appellee, L. B. Moremen, that he was the president of the Rock Island Lot & Land Company was false and fraudulent, and was made by him to Bewley for the purpose of deceiving and overreaching Bewley in the sale of said lots, and that it did so deceive said Bewley and cause him to make said purchase. It was further alleged that said lots were worth not exceeding $150.00 at the time of the sale, and were not worth more than $190.00 when the petition was filed, and that neither Bewley, during his lifetime, nor the plaintiffs, since his death, had ever had an offer of purchase for any of said lots. This amended petition asked that the deed from Haswell to Bewley for the ten lots be canceled, and that the plaintiffs have judgment against Bewley for the $450, with interest from March 31, 1906.

There are many irrelevant facts stated in the petition as well as in the answers which were filed during the preparation of the case; but, in view of the final determination of the case upon a demurrer to the amended petition, these irrelevant matters will not be further mentioned.

The court sustained the defendant's motion to require the plaintiffs to elect which cause of action they would prosecute — the one contained in the original petition to recover on the written guaranty, or that contained in the amended petition filed October 11, 1913, which sought a cancellation of the deed to Bewley upon the ground of fraud on the part of Moremen in making the sale, and to recover the purchase price. The plaintiffs elected to prosecute the action...