Craft v. Barron

• Decision Date: 04 October 1905
• Citation: 88 S.W. 1099,121 Ky. 129
• Parties: CRAFT v. BARRON.
• Court: Kentucky Court of Appeals

88 S.W. 1099

121 Ky. 129

CRAFT v. BARRON.

Court of Appeals of Kentucky.

October 4, 1905

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by J. A. Craft against W. E. Barron. From a judgment for defendant, plaintiff appeals. Affirmed.

Morton Webb & Wilson, for appellant.

Allen &amp Duncan, for appellee.

HOBSON C.J.

Appellant Craft, was a contractor with the United States government on a number of star routes for the carrying of mail in the year 1898, and he sublet to the appellee, Barron, the contract on the route from Brownsville to Alice, Tex., for a term of four years. The contract with Barron was made on behalf of Craft by P. H. Idol, his agent. When the contract was signed by Barron, he had not been over the route, and did not know anything about it personally. After he signed the contract he went to Texas and found the route different from what he had understood, and at once gave notice to Craft that he would have to make some other arrangement, as he had been deceived in the contract. Idol received the letter, and wrote Barron that he would have to stand to the contract. Barron had contracted to take the route for $4,500 a year. Craft finally made a contract with another person to take it for $7,900 a year, and sued Barron to recover the damages which he had sustained, amounting to $3,400 a year for the four years. Barron pleaded that the contract had been obtained from him by fraud. The case was heard by a jury, who returned a verdict in favor of Barron, and Craft appeals.

Barron pleaded simply that he was induced to make the alleged contract by the fraud, misrepresentation, and covin of the plaintiff, without setting up in what the fraud consisted. The plaintiff demurred to the plea, and also entered a motion that the defendant be required to make his plea more specific. The court overruled the demurrer and the motion, and of this the plaintiff complains. The rule that a general plea of fraud in an answer is good, without specifying the facts constituting the fraud, was announced by this court in Sharp v. White, 1 J. J. Marsh. 106, and in Ross v. Braydon, 2 Dana, 161, 26 Am. Dec. 445. These cases were approved in Whitehead v. Root, 2 Metc. 584; Evans v. Stone, 80 Ky. 78; and Dowing v. Carr, 38 S.W. 1044, 18 Ky. Law Rep. 979. The circuit court properly followed these cases, which cannot now be departed from, though, as was said in the first case, it is better pleading to set out the facts constituting the fraud, and, on a motion to make the pleading more specific, this should always be required, where it appears to be necessary to enable the plaintiff to prepare his case. But in the case before us this was not shown. The defendant had pleaded the facts specially in his original answer, which the court had required to be reformed. The plaintiff, some months before the trial, had taken the deposition of his agent, Idol, with whom the transaction was had; both sides interrogating him as to the misrepresentations relied on. The Code provides that a judgment shall not be reversed for an error not affecting the substantial rights of the party complaining. If the answer had been made specific, it would not have enlightened the plaintiff one whit as to the case he was to meet, and no substantial right of his was affected by the ruling of the court.

On the Saturday before the trial took place the defendant had taken the depositions, at Danville, Ky. of White and Chrisman, by whom he proved that Idol's character for truthfulness was bad. When the case was called for trial, the plaintiff announced that he was not ready on account of these two depositions, which had been taken on the preceding Saturday. The court ruled that he would not compel the plaintiff to try, but would give him time to take proof to meet the evidence of White and Chrisman. The defendant thereupon withdrew the depositions of White and Chrisman, agreeing not to read them on the trial. The parties then announced ready and the trial was begun. On the next day, while the trial was in progress, the plaintiff saw White and Chrisman in the courtroom, and thereupon moved the court to set aside the swearing of the jury and continue the case. The court overruled the motion, and of this he complains. If the defendant had not taken the depositions of White and Chrisman, but had brought the witnesses into the courtroom, as he did on the second day of the trial, the plaintiff would have been in no better shape than he was when the depositions were taken and withdrawn. If he had filed his affidavit that he was taken by surprise, and that, if given time, he could get proof sustaining the character of Idol, it would have been proper for the court to set aside the swearing of the jury and continue the action. But this he...