Combs v. Burt & Brabb Lumber Co.

• Decision Date: 07 March 1905
• Citation: 85 S.W. 227
• Parties: COMBS v. BURT & BRABB LUMBER CO. et al.
• Court: Kentucky Court of Appeals

85 S.W. 227

COMBS v. BURT & BRABB LUMBER CO. et al.

Court of Appeals of Kentucky.

March 7, 1905

Appeal from Circuit Court, Knott County.

"Not to be officially reported."

Action on a contract by John S. Combs against the Burt & Brabb Lumber Company and another. From a judgment for defendants plaintiff appeals. Affirmed.

Phillips & Fugate and Salyers & Baker, for appellant.

J. J C. Bach and Hazelrigg, Chenault & Hazelrigg, for appellees.

NUNN J.

The appellant, who was plaintiff below, instituted this action against the Burt & Brabb Lumber Company and Elisha Hensley its alleged agent, to recover $211, the alleged balance due him on a logging contract. There is no disagreement as to the number of logs hauled under this contract, there being 998. The appellees controverted the petition, and pleaded a final and complete settlement of this logging contract, made with appellant, after the completion of the hauling, and the payment of the balance found due him, to wit, the sum of 81 cents.

It appears that the appellee Hensley, on August 29, 1901, in his own name, made a contract with one Joe Vermillion by which Vermillion was to haul these logs and put them on the bank of Bald Fork of Kentucky river, near appellant's dwelling house, at the price of 14 cents per hundred feet; that Hensley advanced him hay, corn, and other things, which he hauled to the house of Combs, and proceeded to prepare the roads for hauling out the logs. Before any logs were hauled another contract was entered into by which Vermillion and Combs became partners. This contract was similar to the first one, except each one was to receive one-half of the contract price. It was proven, without much contradiction, that the advancements made to Vermillion were to be charged to the job and credited to Hensley on the final settlement. Appellant and Vermillion hauled 526 of the logs, when some slight trouble arose between them, and Vermillion quit, and appellant completed the contract by hauling the remaining 472 logs. It appears that Hensley advanced to Vermillion and the firm, prior to the time Vermillion quit, about $226, and after that time paid to appellant about $224, the two sums making the whole amount due for hauling the logs at the contract price.

The appellant claims that after Vermillion quit the job he made a new contract with Hensley by which Hensley agreed to pay him a reasonable price for hauling the remaining...