Daniel v. Daniel

• Decision Date: 13 October 1915
• Citation: 166 Ky. 182,179 S.W. 5
• Parties: DANIEL ET AL. v. DANIEL. [a1]
• Court: Kentucky Court of Appeals

179 S.W. 5

166 Ky. 182

DANIEL ET AL. v. DANIEL. ^[a1]

Court of Appeals of Kentucky.

October 13, 1915

Appeal from Circuit Court, Perry County.

Action by C. B. Daniel against K. F. Daniel and another for breach of contract. From a judgment for plaintiff, defendants appeal. Affirmed.

Wootton & Morgan, of Hazard, for appellants.

Jno. B Eversole and W. C. Eversole, both of Hazard, for appellee.

SETTLE J.

The appellee, C. B. Daniel, by petition filed in the Perry circuit court, sued to recover of the appellants, K. F Daniel and Elizabeth Daniel, $2,179.50 claimed as his half of alleged profits realized on a timber contract, it being alleged in the petition that in August, 1910, he made with them the contract in question, whereby he undertook to forthwith purchase for them certain standing timber on Willard and Forked Mouth creeks, in Perry county, appellants agreeing to furnish the money to pay for the timber, and that they would sell the timber and, after repaying themselves the money they had furnished appellee to purchase it and deducting the cost attending its sale, give and pay appellee one-half the profits realized therefor; that pursuant to such contract appellee purchased for appellants, with the money advanced by them for that purpose, 5,386 trees in the months of August, September, October, November, and December, 1910, at a cost of $2,647, which timber appellants at once contracted to the Hamilton Realty Company at the price of $7,034, by which sale, if appellants had permitted it to stand, they would have realized, after deducting the money they had advanced to pay for the timber and the cost of taking it up, a profit of $4,359, one-half of which, $2,179.50, appellee was entitled to and would have received; but that a controversy then arose between him and appellants over a division of the profits, his half of which they refused to pay, and, in order to avoid payment of which, appellants by a fraudulent collusion with the Hamilton Realty Company induced the latter to rescind the contract of sale appellants had made with it. It was further alleged in the petition that, shortly after their rescission of the contract with the Hamilton Realty Company, appellants sold the timber in question for as great a profit as would have been made out of the sale to that company, to other persons to appellee unknown. The prayer of the petition asked, in substance, that appellants be made to account to appellee for his half of the profits realized from such sales, and that he be given judgment against them therefor to the amount of $2,179.50. Appellants, by answer, traversed the averments of the petition, but by a subsequent paragraph admitted that they had employed appellee to purchase for them a part of the timber in controversy, and alleged that for such services as he rendered under this employment they had agreed to pay, and had paid, him at the rate of $1 per day. The affirmative matter of the answer was controverted of record, and upon the issues thus formed the case went to trial, resulting in a verdict in favor of appellee for $600 damages. From the judgment entered upon that verdict, this appeal is prosecuted.

Appellants insist that the trial court erred in overruling their general demurrer to the petition, it being their contention that the averments of the petition are not sufficiently specific to authorize a recovery. The contention is unsound. Considered as a whole, the petition in meaning and effect rests appellee's right of recovery upon the grounds: First. That he is entitled to judgment against appellants for one-half the profits that would have been realized from the alleged sale by them of all the timber to the Hamilton Realty Company, but for their fraud in inducing that company to rescind such sale in order to enable appellants to avoid the payment to appellee of his half of the profits, which constituted a violation of their contract with appellee and made them liable to him for damages equaling in amount half the profits of the sale to the Hamilton Realty Company. Second. That, if the court should find this ground of recovery untenable, the subsequent sales made of the timber by appellants to other parties at a profit, in any event entitled appellee to his half of such profits. It is true the allegations of the petition as to the subsequent sales are indefinite, both as to the number and amounts, respectively, of such sales. The averment, however, that the names of the purchasers are unknown to appellee, threw upon appellants, as the names must necessarily be known to them, the duty of disclosing them; but as the petition was indefinite in failing to state that the number and amounts, respectively, of the subsequent sales were unknown to appellee, appellants should have entered a motion requiring the...