Hines v. Hollingsworth-Young Hardware Co.

• Citation: 178 Ky. 233,198 S.W. 716
• Parties: HINES ET AL. v. HOLLINGSWORTH-YOUNG HARDWARE CO.
• Decision Date: 07 December 1917
• Court: Court of Appeals of Kentucky

198 S.W. 716

178 Ky. 233

HINES ET AL. v. HOLLINGSWORTH-YOUNG HARDWARE CO.

Court of Appeals of Kentucky.

December 7, 1917

Appeal from Circuit Court, Warren County.

Action by C. S. Hollingsworth and Clive Young, copartners doing business as the Hollingsworth-Young Hardware Company, against Josie U. Hines and others. From a judgment for plaintiff, the defendants appeal. Reversed and remanded, with directions.

W. B Gaines and W. Perry Drake, both of Bowling Green, for appellants.

Guy H Herdman, of Bowling Green, for appellee.

HURT J.

This action was instituted in the Warren circuit court by the appellees, C. S. Hollingsworth and Clive Young, who were partners under the firm name of Hollingsworth-Young Hardware Company, for a personal judgment against Josie U. Hines, and to enforce a materialman's lien, under chapter 79 Kentucky Statutes, upon her house and lot in the city of Bowling Green. By an amended petition, Samuel D. Hines, the husband of appellant Josie U. Hines and C. U. McElroy trustee holding the legal title to the property for the use and benefit of Josie U. Hines, were made parties. The petition simply contented itself with alleging that C. U. McElroy was the trustee who held the legal title to the property under a deed executed to a former trustee, and was of record in the office of the clerk of the county court of the county. The deed was not filed with the record, nor was there any showing on the part of the plaintiffs that the deed under which it was held was such in its terms as would permit the placing of a materialman's lien upon the property by contract, either with the trustee or with the cestui que trust. Samuel D. Hines and C. U. McElroy, the trustee, offered separate answers, but they do not seem ever to have been filed. The record merely shows that the answers were offered, and for what reason they were not filed does not appear, as there were no objections appearing of record to their being filed. Not having been filed, they were not replied to nor was there any further mention of them in the record. The appellees, who were the plaintiffs below, stated that by a contract made with Josie U. Hines, by and through her husband Samuel D. Hines as her agent, and by her knowledge and consent, they furnished paints to the amount of $123, which were used in improving the dwelling house in which she lived. Further allegations were made to the effect that they had filed in due time and caused to be recorded in the proper office the statement of their lien required by chapter 79, supra, and this does not seem to be controverted. They asked for an enforcement of their lien, and a sale of the house and grounds upon which it stood in satisfaction of their debt.

Josie U. Hines filed an amended answer, in which she denied that any contract had been made with her for furnishing the parties by the appellees, and that same were not furnished by them with her knowledge and consent, and that she had never agreed or promised to pay for them, and that same were not used upon the property with her consent, and, further, that Mrs. Meriwether had by will devised to a trustee for her use and benefit a certain sum of money, and that in accordance with the terms of the will which created the trust the real property was purchased and conveyed by a deed to Warner U. Grider, the trustee, for her use and benefit, and that Grider having died, C. U. McElroy was duly appointed such trustee, and was the holder of the legal title to the property under the trust deed which had been executed by the vendors of the property to the former trustee, and that it was in accordance with the terms of the will of the testatrix who had created the trust. The affirmative allegations in her answer and amended answer were not denied.

The evidence for the appellees tended to prove that they knew that Mrs. Hines was the owner of the property, and that in furnishing the paints they did same upon her credit and charged the same to her upon their accounts, although the contract and arrangement to furnish the paints were entered into by one Jarrett, who represented Peaslee Gaulbert Company, with Samuel D. Hines. It seems that the appellees were the parties who were authorized to furnish the paints manufactured by Peaslee Gaulbert Company in Bowling Green and that Jarrett was an agent of the Peaslee Gaulbert Company who had authority to make contracts for the sale of paints, but who sold them through the appellees. The evidence offered for appellants tended to prove that the paints were contracted for by Samuel D. Hines upon his personal credit, and that he notified Jarrett, with whom he made the contract, that the materials were to be charged to him and were to be used upon a house, the title to which was held by a trustee for Josie U. Hines, but that he requested Jarrett to sell him the goods through the agency of the appellees, and thereafter he notified them of such facts. It was also proven for the appellants that Grider, the trustee who was then living, had furnished a portion of the money to be used in improving the house, but had furthermore refused to consent that the improvements should be made upon the credit of Mrs. Hines, or that she should be in anywise responsible for them, and that the...