Graham v. Swann

• Decision Date: 29 May 1912
• Citation: 147 S.W. 11,148 Ky. 608
• Parties: GRAHAM et al. v. SWANN.
• Court: Kentucky Court of Appeals

147 S.W. 11

148 Ky. 608

GRAHAM et al. v. SWANN.

Court of Appeals of Kentucky.

May 29, 1912

Appeal from Circuit Court, Calloway County.

Action by M. R. Swann against L. A. Graham and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Speight Dean & Acree, of Mayfield, for appellants.

Thos P. Cook, of Hopkinsville, and Cook & Thompson, of Murray, for appellee.

WINN J.

M. B Swann brought this equitable action below against T. P Farmer and L. A. and Z. C. Graham. He charged that he was a member of the partnership of T. P. Farmer & Co., tobacco buyers; that of the profits Farmer was to get one-third, L. A. Graham one-third, and Z. C. Graham one-third; that by an arrangement made with the Grahams he (Swann) was to get one-third of their two-thirds, or two-ninths of the profits. He prayed judgment only against the Grahams; and, upon submission, the court gave judgment accordingly for $2,301.50. The Grahams appeal.

The testimony as to the nature of the relation is voluminous, unsatisfactory, and conflicting in the essential elements. Perhaps the most noteworthy circumstance tending to sustain Swann is that neither of the Grahams nor Farmer explained why or under what arrangement Swann bought tobacco for the firm throughout the season, received it at the warehouse, drew money on account, and was actively engaged in the conduct of the business of the firm. So far as their testimony explains, he was an interloper in all this work, though they say that, after much of the work had been done, it was agreed between them, in the absence of Swann and without any understanding by him, that he should be allowed $75 per month. The evidence discloses that Swann was an experienced tobacco buyer of good reputation. It seems unreasonable that he should have gone to work without any arrangement, and there is a good deal of testimony of admissions by the Grahams to the effect that he was to have one-third of their two-thirds. This accords with Swann's testimony; and, since there is no other explanation offered of his connection with the business, we cannot disturb the chancellor's view of the facts. In addition, Z. C. Graham testifies that he made Swann such a proposition, but that it was rejected by Swann, though he admits that shortly following the proposition Swann went to work, and his work was regularly received.

It is urged that no testimony is given showing that L. A. Graham ever agreed to...