Cogar Grain & Coal Company v. Mcgee

• Decision Date: 27 November 1931
• Citation: Cogar Grain & Coal Company v. Mcgee, 241 Ky. 485 (Ky. 1931)
• Parties: Cogar Grain & Coal Company v. McGee.
• Court: Supreme Court of Kentucky

241 Ky. 485

Cogar Grain & Coal Company v. McGee.

Court of Appeals of Kentucky.

Decided November 27, 1931.

1. Partnership. — Testimony seller on purchasing corn applied tenant's half to individual account held erroneously admitted, in action for goods sold farming partnership.

Circumstances disclosed that landlord and tenant had called on plaintiff to settle account and that both landlord and tenant gave check for half of amount; that tenant's check was never paid, whereupon plaintiff instituted action against landlord for amount for which tenant's check was issued. The testimony was erroneously admitted, since, if tenant's half had been applied to partnership account as landlord claimed should have been done, it would have made the tenant pay with his half of corn a part of partnership account which was due from landlord.

2. Partnership. — In action for goods sold farming partnership, testimony terms of partnership were generally observed in paying for produce purchased by seller of goods held erroneously introduced.

The introduction of the testimony was error, since there was no showing that plaintiff suing landlord for goods sold farming partnership had agreed beforehand to look to each partner in the farming venture for his proportionate share of the firm account, and not to hold the other partner for such part.

3. Payment. — Giving check by debtor is not, in absence of agreement to that effect, payment of debt.

4. Payment. — Evidence in action against landlord for goods sold farming partnership held insufficient to establish seller accepted tenant's check in final payment of partnership account.

Appeal from Mercer Circuit Court.

C.E. RANKIN, RODMAN W. KEENON, and GUY BRIGGS for appellant.

E.H. GAITHER for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellant, Cogar Grain & Coal Company, is a partnership composed of Clell Coleman and three others, to whom we shall herein refer as "plaintiffs." The appellee and defendant below, J.J. McGee, with his mother and sister, owned a farm in Mercer county containing about 350 acres. In 1924 and before the death of the mother, the owners entered into a contract with Phil Beasley, whereby on certain terms he was to cultivate the farm and the owners were to receive stipulated parts of the crops, which consisted of half of the wheat and corn, and the seed wheat was to be paid for and furnished equally by the landlords and the tenant. Other terms were inserted in the lease with reference to acquiring, fattening, and marketing live stock, and there is no doubt but that the contract created a partnership relation, or one of joint adventure, the difference between which is not material in this case. The contract was renewed from year to year, but before the matters here involved occurred the mother died, leaving defendant and his sister as the only owners of the farm. Defendant and his sister at the time and prior to the occurrences here involved were sojourning in New Mexico for the purpose of regaining their health, and Beasley was the only local manager of the farming enterprise in Mercer county.

Plaintiffs were engaged in general merchandise in Harrodsburg, Ky., and handled and sold grain as a part of their business. During the month of August, 1928, and while defendant was on a visit to his home in Harrodsburg, a quantity of seed wheat was purchased by him and Beasley on a joint trip to plaintiffs' place of business, and it was charged to the firm of "Beasley and McGee," or "McGee and Beasley," as was also true of a long-standing account between plaintiffs and the farming partnership. Some time near the holidays of 1928 Beasley and the defendant called upon plaintiffs to settle their account to that date, and it was figured that the total sum was $559.40. Defendant gave his check for half of that amount, and Beasley did the same, but the latter check was never paid, and both plaintiffs and defendant in this case testified that all of them knew at the time that Beasley had no money in the bank upon which the check was given or elsewhere, and Mr. Clell Coleman, the member of the partnership with whom the transaction was had, testified that the check was not received in payment of the amount for which it was issued, but that he agreed to convert that much of the claim into the form of a check by Beasley, under the belief that payment of the latter could be more readily obtained than the payment of the account as it stood when the check was given, and defendant in giving his testimony stated that Coleman said on the same occasion that under the then existing cold-check law in this commonwealth he might be the better able to...