Griffith v. Speaks

• Decision Date: 04 June 1901
• Citation: 63 S.W. 465,111 Ky. 149
• Parties: GRIFFITH et al. v. SPEAKS et al. [1]
• Court: Kentucky Court of Appeals

63 S.W. 465

111 Ky. 149

GRIFFITH et al. v. SPEAKS et al. ^[1]

Court of Appeals of Kentucky.

June 4, 1901

Appeal from circuit court, Bourbon county.

"To be officially reported."

Motion by Speaks & Redmon against W. B. Griffith and others for judgment on a bond. Judgment for plaintiffs, and defendants appeal. Reversed.

McMillan & Talbott, for appellants.

Rogers & Moore, for appellees.

BURNAM J.

On the 20th day of June, 1899, Speaks & Redmon, the proprietors of a livery stable, sued out an agister's warrant for $325.80 alleged to be due them for the keep of certain horses belonging to appellant W. B. Griffith, under section 2501 of the Kentucky Statutes. The warrant was levied by the sheriff upon a sorrel mare appraised at $150, a brown horse appraised at $45, a bay horse at $85, and a bay mare at $50, amounting in the aggregate to $330. On the 22d of June, Griffith executed bond, as provided by section 653 of the Civil Code. Thereupon appellees, pursuant to section 654 of the Civil Code, moved for judgment upon the bond. Thereupon appellants filed their answer and resisted judgment upon the ground that they were not indebted to the appellees for the amount claimed. A general demurrer was sustained to each of the four paragraphs of the answer, and, appellants declining to plead further, judgment was entered against them for $325.80, with 10 per cent. damages thereon, and 6 per cent. interest per annum on this sum until paid, and for costs, to which judgment defendants objected and prosecute their appeal to this court.

Their answer is as follows:

"Paragraph 1. Defendants state that the notice herein is in law insufficient, and they demur generally to this proceeding on the ground of legal insufficiency of the notice.

"Par 2. Not waiving their objection and demurrer set out in paragraph 1, the defendants W. B. Griffith, etc., state that the distress warrant or agister's warrant herein was issued for more rent or feed bill than was due the plaintiffs, and that said distress warrant was and is therefore illegal. Defendants state that plaintiffs have included in the alleged feed bill $116 for board and keep for the sorrel mare Snip, when the defendants were not indebted to plaintiffs in said sum for board and keep of said mare, or in any sum whatever. Defendants state that said sorrel mare Snip was delivered to plaintiffs under the following agreement: Defendants were willing to sell said mare in her undeveloped condition for $200, plaintiffs agreeing to take said mare and to be at all expense of keeping, handling, developing, and selling said mare in consideration of whatever excess over $200 for which plaintiffs could sell said mare, the time for sale and price which plaintiffs should ask and receive for said mare to be left to plaintiffs; and said mare was delivered to plaintiffs under said agreement during all the time plaintiffs had possession of her, and she was in plaintiffs' possession at the time they had this distress warrant issued against said mare, wrongfully asserting an alleged board bill against said mare to the amount of $116; and defendants state that by virtue of said agreement defendants were not indebted to plaintiffs in any sum whatever for said mare at the time this distress warrant or agister's warrant was issued, and to the extent of $116 aforesaid the said warrant was for money not due plaintiffs, and said warrant was and is illegal and void. Defendants further state that plaintiffs have included in the alleged feed bill $40.80 board bill for a horse, when defendants were not indebted to plaintiffs in said sum for board or keep of said horse, or in any sum whatever. Defendants state that said horse was delivered to plaintiffs under the following agreement: Defendants were willing to sell said horse in his undeveloped condition for $100, plaintiffs agreeing to take said horse and to be at all the expense of keeping, handling, developing, and selling said horse in consideration of whatever excess over $100 for which plaintiffs could sell said horse, the time of sale and price which plaintiffs should ask and receive for said horse to be left to plaintiffs; and said horse was delivered to plaintiffs and kept by plaintiffs under said agreement during all the time plaintiffs had possession of him. Defendants state that plaintiffs were unable to sell said horse for any excess over $100, or for $100, and that in December, 1898, plaintiffs sold said horse for $75, and delivered possession thereof to the purchaser, and neither plaintiffs nor defendants have had possession of said horse since that time. Defendants state that by virtue of said agreement defendants were not indebted to plaintiffs in any sum whatever on account of said horse at the time this warrant was issued, and to the extent of $40.80 said warrant was for money not due plaintiffs, and by reason thereof was illegal and void.

"Par. 3. Defendants state that $40.80 of the amount for which the warrant was issued was an alleged board bill claimed by plaintiffs for keeping and feeding a horse for defendants prior to December 5, 1898; that on December 5, 1898, plaintiffs sold said horse for defendants, and that said horse has not since been in the possession of plaintiffs or defendants, and has not since been owned by the defendants or any of them. Defendants state that said horse was removed from the custody of plaintiffs with the consent of defendants by the purchaser thereof on December 5, 1898. Defendants state that plainti

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