Hatcher-Powers Shoe Co. v. Hitchens

• Decision Date: 10 December 1929
• Parties: HATCHER-POWERS SHOE CO. v. HITCHENS.
• Court: Kentucky Court of Appeals

22 S.W.2d 444

232 Ky. 87

HATCHER-POWERS SHOE CO. v. HITCHENS.

Court of Appeals of Kentucky

December 10, 1929

Appeal from Circuit Court, Carter County.

Action by the Hatcher-Powers Shoe Company against C. S. Hitchens. Verdict for the defendant, and the plaintiff appeals. Reversed with directions.

Woods Stewart, Nickell & Smoot, of Ashland, for appellant.

Theobold & Theobold, of Grayson, for appellee.

WILLIS J.

The Hatcher-Powers Shoe Company sued C. S. Hitchens upon a writing by which it was agreed that "the undersigned, in consideration of their mutual promises and agreements do severally agree to and with each other and with H. W Hatcher, O. P. Powers and James Hatcher, the promoters of said corporation, that they will subscribe for and they do hereby severally subscribe for, the number of shares of capital stock of said company set opposite their respective names." It was alleged in the petition that prior to and in contemplation of the incorporation of the plaintiff company, the defendant together with other persons on or about the ------ day of March, 1920, became a subscriber to the stock of plaintiff by signing the writing, which was set forth in full. Appropriate averments were made showing the completion of the corporation, its acceptance of the subscription contracts, calls for payments, and the launching of the enterprise upon its contemplated business career. The answer of defendant traversed the allegations of the petition. The formal steps in the process of forming the company were proven by uncontradicted evidence, and the ultimate issue between the litigants was whether defendant had executed the writing. The sufficiency of the incorporation, organization, and procedural steps as set out in the petition were before this court and settled in the case of Hatcher-Powers Shoe Co. v. Bickford et al., 212 Ky. 163, 278 S.W. 615, and need not be recited. The circuit court submitted the case to the jury and its verdict was for the defendant. The shoe company has prosecuted an appeal, insisting that it was entitled to a peremptory instruction, or, if not correct in that contention, that it should be granted a new trial because of errors of the court in instructing the jury and in admitting incompetent evidence.

The duty of the trial court respecting the request for a peremptory instruction depended upon the facts shown by the evidence upon the issue involved. If there was conflicting testimony upon the vital issue as to the execution of the writing upon which the action was based, it was proper to submit that issue to the jury. But if there was an entire absence of evidence to sustain the defense of non est factum there was nothing to submit to the jury, and a verdict should have been directed for the plaintiff as requested. The contention requires an examination of the evidence adduced. Harry W. Hatcher gave his deposition in this and about a score of companion cases some years before the trial. He testified that he took the subscription of Hitchens, who personally signed the written contract with a lead pencil. In the cross-examination counsel pressed the witness with particular emphasis on the matter and manner of executing the contract by Hitchens. Five days later Hatcher was recalled and stated that after his previous testimony had been given, he had examined the original signed paper, and upon seeing it recalled that Hitchens had directed him to sign the paper for him and he had done so with a fountain pen. O. P. Powers testified that he was present on the occasion when Hitchens subscribed. He thought Hitchens signed the paper himself, but Hatcher was handling the transaction and the details were not clearly recalled. He was certain, however, that the paper was in their hands, and was the subject of the discussion; but the witness could not state positively which one signed it. He was pretty sure, however, that one or the other of them then signed it. In July, 1920, after calls for payment of a part of the subscription price had been made and after the corporation had begun business, Hitchens wrote Hatcher a letter in which he stated: "Upon my return after an absence of several weeks I found the enclosed letter from Mr. Barnett. Taking advantage of the agreement between us made at the time I subscribed for some of the stock, I will now cancel my subscription." The letter from Mr. Barnett was a notice of the call by the corporation for a payment on the subscription for stock. Hitchens testified that he never at any time subscribed for any stock in the Hatcher-Powers Shoe Company. Referring to Hatcher's testimony to the effect that he had signed the name of Hitchens by his authority, the witness stated that he did not sign the paper or give Hatcher any authority to sign it for him. But in relating the facts of the occurrence he said: "I told him he could put me down for a thousand dollars worth. That was really to get rid of him. He told me I could make my decision whether I wanted it or not." This declaration was followed by a question...