Foard v. McComb

• Decision Date: 01 February 1877
• Citation: 75 Ky. 723
• Parties: Foard, & c. v. McComb.
• Court: Kentucky Court of Appeals

75 Ky. 723

Foard, & c. v. McComb.

Court of Appeals of Kentucky.

February 1, 1877

APPEAL FROM CHRISTIAN CIRCUIT COURT.

MCPHERSON & CHAMPLIN AND H. A. PHELPS & SON FOR APPELLANTS.

The appellee obtained the money in controversy in this case by false and fraudulent representations, and is therefore liable. (Kerr on Fraud and Mistake, pp. 56, 57; 1 Story's Equity, sec. 193.)

CAMPBELL & FERGUSON FOR APPELLEE.

OPINION

ELLIOTT JUDGE:

This appeal is from a judgment of the lower court in appellee's favor in an action brought by appellants against him to recover $177.11, balance of an order drawn by Smoot & McComb on appellant Whitlock, and in favor of appellant Foard.

It appears that appellant Foard was deputy sheriff of Christian County, and as such had various executions in his hands against Smoot & McComb, and was pressing them for money, and in part satisfaction of the amount due Foard, Smoot & McComb drew an order in his favor upon appellant Whitlock for $377.11. This order was drawn September 4, 1871. Foard soon afterward informed Whitlock that he had an order on him, but the proof is not clear that Whitlock was informed for what sum the order had been drawn. Whitlock refused to accept the order, but said that he had contracted for Smoot &amp McComb's wheat, and if it were delivered he would pay its value. He afterward did receive the wheat, and became liable to Foard for the full amount of the order, the price of the wheat being greater than that sum. Appellant Whitlock charges that after he received the wheat from Smoot & McComb, and before he had ascertained the amount of the Foard order, the appellee, who was a brother of one of the members of the firm of Smoot & McComb, came to him and stated that as the agent of Smoot & McComb he had a claim against him, and desired its payment.

Whitlock says he told appellee that he had been indebted to his principals, but that he had accepted an order drawn on him by them, in favor of Foard, and that he did not know its amount. He further stated that he would pay the order, and if there were any balance due to Smoot & McComb he would pay the same to him. Whereupon appellee told him that he knew the amount of the Foard order to be only $200, and upon this representation Whitlock paid appellee all that he owed Smoot & McComb, except the $200. Shortly after this Foard presented Whitlock the order and demanded its payment.

The order called for $377.11 instead of $200, and afterward Whitlock had to pay it. In fact he was bound for its amount by his agreement that if the wheat amounted to that sum he would pay it.

Whitlock then, joining Foard with him in the action, instituted this suit against appellee, and seeks to recover from him the damages which he says he has sustained by reason of the fraudulent misrepresentation of the amount of the Foard order by appellee.

The issues were submitted to a jury, and a verdict was found and judgment rendered for the appellee, and the appellants, who were refused a new trial, have brought ...