Clore v. Davis

• Decision Date: 22 April 1897
• Parties: CLORE et al. v. DAVIS et al.
• Court: Kentucky Court of Appeals

40 S.W. 380

CLORE et al. v. DAVIS et al.

Court of Appeals of Kentucky.

April 22, 1897

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by G. R. Davis and another against J. C. Clore & Sons to recover damages for wrongful sale of logs under execution. Judgment for plaintiffs, and defendants appeal. Affirmed.

S. B. &amp R. D. Vance, for appellants.

Yeaman & Lockett, for appellees.

WHITE J.

This is an appeal from the Henderson circuit court from a judgment in favor of appellees, Davis and Meredith, and against the appellants, Clore & Sons. The plaintiffs alleged in their original petition that they were the owners of a lot of saw logs on the banks of Nolin river, Edmonson county, consisting of about 350 logs from 12 to 16 feet long, and of the value of $500; that the defendants, Clore & Sons, having a judgment rendered by the circuit court of Edmonson county against J T. Sanders for about $666, caused an execution to be issued on said judgment, and placed the same in the hands of the sheriff of Edmonson county, and caused said execution to be levied on an undivided one-half interest in said logs to satisfy the same as the property of J. T. Sanders; that the sheriff of said county refused to sell the said logs, or to sell the interest so levied on, and the defendants (now appellants), in order to induce the sheriff to sell the said interest, executed to him a bond and covenant, whereby they undertook and agreed to indemnify said sheriff against any loss or damage he might sustain by reason of said sale, and would pay any claimant of said property the damages which he might sustain in consequence of such sale. This bond was returned with the execution, etc., and averring that on the 31st day of March, 1892, said sheriff, by reason of the procurement of the defendants as aforesaid, did sell the one undivided half interest in said logs, and said interest was purchased by Absolam Brooks at the price of $150, which was much less than the value thereof, and the sheriff and defendants thereupon placed said Brooks in possession of said logs, and the said sum of $150 has been paid to defendants. Plaintiffs aver that said Sanders had no interest whatever in said logs, or any of them, and that they were solely the property of plaintiffs. And, averring further that they were unacquainted with the law, and believed in good faith, and were informed by those learned in the law, of whom they took advice, that the sale of said sheriff, after the execution of said indemnifying bond, was authorized and was legal, and that the title to the interest so sold passed by the sale to the purchaser, and, so believing, and to avoid trouble, they were compelled, and did sell to Brooks the remaining half of said logs for a greatly reduced price, and by the illegal acts of the defendants, and by the sale of said logs, caused and procured by them as aforesaid, appellees have been damaged in the sum of $350, and for which they pray judgment etc. On the motion of defendants the court compelled plaintiffs to select whether they would proceed with the action on the indemnifying bond or on common-law liability to which requirement the plaintiffs objected, but elected to proceed upon the case, and not on the indemnifying bond. Defendants answered and denied that plaintiffs were the owners or had in their possession the lot of saw logs mentioned in the petition, or that said saw logs were worth $500, and denying that to induce the sheriff to sell the...