Hargis v. Spencer
| Decision Date | 18 May 1934 |
| Citation | 254 Ky. 297 |
| Parties | Hargis v. Spencer. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Breathitt Circuit Court.
A.H. HARGIS for appellant.
E.C. HYDEN for appellee.
Affirming.
In an action instituted by appellant in the Breathitt circuit court, upon a writing, claimed to have been executed by appellee as a promissory note to appellant appellant was denied recovery thereon and judgment was rendered in favor of appellee against appellant for the sum of $500 upon her counterclaim.
Briefly summarized, the facts as disclosed by the record are as follows: The appellant, while incarcerated in the jail at Lexington, Ky., for contempt of court, it is admitted, requested his attorney to bring him from his private safe in Jackson, Ky., a bag of gold money, amounting to some $1,300; further, that the appellee, Mrs. Spencer, was at such time also requested to come to Lexington to see him, which she did; and that, when she visited appellant at the jail where he was confined, defendant requested her to take and keep for him the bag containing $1,300 of gold money, to the end that it might not be lost, through being left at his home at Jackson, while he was imprisoned at Lexington. It is admitted that the appellee, Mrs. Spencer, upon being thus requested to take and keep this money, accepted the same and carried it back to her home at Oakdale, Breathitt county, Ky., where she stored away for safekeeping appellant's bag of gold in her trunk, under lock and key, together with her own money which she was accustomed to store therein for safekeeping.
Appellee testified that upon two or three later occasions she visited appellant and requested him to receive back this money, as she feared it might be lost, since she was a widow, living a good part of the time alone in her home at Oakdale, where such an amount of money was not safe in being there kept by her, but that appellant declined to accept back the money bailment and requested her to continue keeping it for him. She further testified that in September, 1931, the appellant, while unwilling to let her give him back the money she was keeping for him, yet asked that she give him a receipt therefor, showing that she held the money as bailee for him, to the end that it might not be claimed by her estate in the event of her death while so holding it.
With the view of carrying out this express wish of the appellant, she visited the appellant on September 16, 1931, when he wrote out on a small slip of paper an acknowledgment — at least he, she testifies, so represented it to her — that she held his $1,300 of gold money only as a bailee for safekeeping, which she signed. She states that the slip of paper, so represented as being only a receipt, was signed by her, at appellant's request, without reading it. It is further stated that some four days after signing this paper, her home in Oakdale, at about 1 o'clock of the Sunday night next following, was burglarized, when the trunk in which she kept her and the appellant's money was broken into and both his bag of gold money and some $210 of her own money were taken therefrom by two men, whom she that night saw running from her home, but that these men were never apprehended nor the stolen money recovered.
Some three days after this occurrence, she states the appellant wrote her, requesting that she return him his bag of money left with her, when she informed him that she could not make the demanded return because of its loss by theft as stated.
It appears that upon this occasion a considerable exchange of incriminating charges and accusations was indulged in and that shortly thereafter the appellant brought this action upon the writing executed by appellee to him on September 16, 1931, as a receipt or note — as the case may be — which by its terms is as follows:
On the back of this writing was the following indorsement:
The appellant, by his petition, alleged that he had demanded payment of this note from the defendant, Lillie Spencer, and that she had refused to pay same or any part of same except the sum of $500, which it is admitted he was then owing her and for which he had given her his note in such amount and which, he alleges, she had agreed, when executing the note sued on, should be credited as a payment thereon.
The defendant by answer and counterclaim and also by amended answer and counterclaim entered a plea of non est factum to the note sued on, denying that she had executed the writing in the form in which same appeared when sued on or that she agreed at such time, or at any time, to convert her holding of the plaintiff's $1,300 as a gratuitous bailment into a loan from him of the amount or that she had agreed to the entering of the plaintiff's $500 indebtedness then owing her as a credit or payment made by her upon the alleged loan of the $1,300 money bailment then made her or that she ever made any agreement, then or at any time with the appellant, whereby she was subsequently to hold the said bailor's $1,300 of gold money, intrusted to her for safekeeping, as a loan from appellant, but that the writing was, when signed by her, represented to be, and signed by her as being, only a receipt or acknowledgment by her that she held, not as owner but only in bailment for the plaintiff, the $1,300 which she had previously, at his request, accepted for safekeeping from him. Further she testified that the said writing, when signed by her, recited only that she had "received from A.H. Hargis $1,300 in gold for safekeeping" and that the further words appearing in the writing "and loan, payable on demand with 6% interest" were, after her signing of the paper or purported receipt, fraudulently added thereto by plaintiff. Further, she pleaded that if these words fraudulently inserted in the writing to change its character from that of a receipt into a note were not so subsequently added thereto, that they were written into the instrument signed by her through the fraud and deceit of the plaintiff to wrongfully make it one different and contrary to the representations then made to her to induce her to sign the writing as being only a receipt for the money thereby acknowledged held by her in bailment for the plaintiff.
Upon the trial of the cause, upon the issues submitted, the jury — under the instructions of the court — found a verdict for the defendant in the sum of $500 and interest, upon which judgment was entered, directing that the writing sued on by plaintiff be canceled and the petition dismissed and that the defendant, Lillie Spencer, recover of the plaintiff the sum of $500 with 6 per cent. interest from September 30, 1930, until paid, together with her costs.
Plaintiff's motions and grounds for a new trial being overruled, he prosecutes this appeal seeking a reversal of the judgment.
Numerous assignments of error are made attacking the propriety of the court's judgment, which we do not regard it needful to here set out seriatim, as we are of the opinion that they may be more clearly considered and disposed of when grouped and discussed together under the heads: (1) As to whether or not, conceding that there was here a gratuitous bailment of the $1,300 in question made for the benefit of the plaintiff bailor to the defendant, she did, after so receiving his fund as bailee, exercise that degree of care for its safekeeping as is imposed by the law applicable in such case to her status as a gratuitous bailee; (2) whether or not, after so receiving, as a gratuitous bailee, appellant's money in question, she and the plaintiff did thereafter, by reason of their alleged making of a subsequent agreement, change their legal relation of balior and bailee into the new and different relation of creditor and debtor — that is to say, did appell...
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