Hibbard v. Estridge

• Decision Date: 26 November 1913
• Citation: 160 S.W. 746,156 Ky. 122
• Parties: HIBBARD v. ESTRIDGE et al.
• Court: Kentucky Court of Appeals

160 S.W. 746

156 Ky. 122

HIBBARD v. ESTRIDGE et al.

Court of Appeals of Kentucky.

November 26, 1913

Appeal from Circuit Court, Madison County.

Action by Jane Estridge and others against J. W. Hibbard and another. Judgment for the plaintiffs, and defendant J. W Hibbard appeals. Reversed and remanded.

See also, 153 Ky. 439, 155 S.W. 741.

Smith &amp Smith, of Richmond, for appellant.

D. M Chenault, O. P. Jackson, and John C. Chenault, all of Richmond, for appellees.

HOBSON C.J.

Jane Estridge, Flora Mays, and Harrison Mays, as plaintiffs, brought this action against J. W. Hibbard and the State Bank & Trust Company. They alleged that on or about December 24, 1912, they purchased of J. W. Hibbard "his one-half interest in a certain crop of tobacco raised on the lands of the plaintiffs, also all of his individual interest in a certain crop of tobacco raised on Mrs. Lucy Byrd's land," for all of which they agreed to pay him the sum of $275 as soon as the tobacco could be stripped and put on the market, and he agreed to give his time in stripping it free of charge; that there were at least 5,000 pounds of tobacco included in this sale, reasonably worth $720, and that the property was wrongfully detained by the defendant; that on January 2, 1913, he brought two loads of the tobacco to the Madison County Tobacco Warehouse; that this tobacco when sold brought the sum of $645.22; and that he received checks for this sum from the warehouse, drawn on the State Bank & Trust Company payable to himself, which money he failed to turn over to the plaintiffs, and that this money was the property of the plaintiffs. The petition concludes with this prayer: "Wherefore they pray the court for a writ of delivery for the tobacco that has not been sold and for the money that is now in the hands of the State Bank & Trust Company, namely, $645.22, and they pray for all proper relief in every aspect of the case."

The order of delivery was taken out and placed in the hands of the sheriff, which directed him to take one-half interest in a certain crop of tobacco raised on the lands of the plaintiffs by J. W. Hibbard and his individual interest in a certain crop of tobacco raised on Mrs. Lucy Byrd's land also the two checks referred to from the possession of the defendant Hibbard and the State Bank & Trust Company and deliver them to the plaintiffs. The defendant Hibbard filed a general demurrer to the petition. The demurrer was sustained. The plaintiffs then filed an amended petition in which they alleged that, by reason of the defendant Hibbard taking possession of their property, the said tobacco, and detaining it against their will and consent, they were damaged in the sum of $50. The court sustained the defendant's demurrer to the petition as thus amended. They then filed the following amended petition: "They say that, under the contract of sale of the tobacco, the same was delivered to plaintiffs, and it was in their possession for two days, when the defendant wrongfully took possession of same; that they are now entitled to the immediate possession of same. Wherefore they pray as in their original petition and for all proper relief." The defendant demurred to the petition as thus amended, and thereupon the following judgment was entered: "This cause came on for hearing, and the defendant, having been duly summoned, entered a general demurrer, and the court, having considered thereof, overruled said demurrer, and, the defendant failing to plead further, it is adjudged by the court that the plaintiffs are entitled to the tobacco claimed in the petition. And it further appearing to the court that the said tobacco having been sold by agreement and the proceeds held subject to the orders of this court, and the said tobacco having brought the sum of $1,242.27, it is adjudged by the court that the plaintiffs are entitled to said amount. It further appearing to the court that the defendant the State Bank & Trust Company had in their possession the sum of $645.22 of the funds arising from the sale of said tobacco, the said bank is ordered to pay over said amount to plaintiffs or their attorneys. It further appearing to the court that $597.05 is in the hands of the Madison County Tobacco Warehouse, arising from the sale of a part of the tobacco...