Jones v. Whitaker

• Decision Date: 10 January 1911
• Citation: 133 S.W. 223,141 Ky. 484
• Parties: JONES et al. v. WHITAKER.
• Court: Kentucky Court of Appeals

133 S.W. 223

141 Ky. 484

JONES et al. v. WHITAKER.

Court of Appeals of Kentucky.

January 10, 1911

Appeal from Circuit Court, Laurel County.

Action by Sparks Jones and others against H. M. Whitaker. Judgment for defendant, and plaintiffs appeal. Affirmed.

Sam C Hardin and Greene, Van Winkle & Schoolfield, for appellants.

Hazlewood & Johnson, for appellee.

CARROLL J.

In October, 1907, the appellants Sparks Jones and P. M. Baker in connection with Isaac Goforth, brought this common-law action against the appellee, Whitaker, seeking to recover from him $1,500, the value of timber alleged to have been wrongfully and unlawfully cut and carried away by him from land owned by them. In his answer and amended answers Whitaker pleaded (1) that the plaintiffs did not own the land from which the timber was cut, or any part of it; (2) that in July, 1902, he purchased from Mamie and Jarvis Jackson the timber the plaintiffs were seeking to hold him responsible for, and that they were the owners of the timber and the land upon which it was standing at the time of his purchase; (3) that he purchased the timber from them without any notice that plaintiffs had any title to or interest therein; (4) that before he purchased the timber from the Jacksons he informed the plaintiff Baker, who had a title bond for the land, that he was going to purchase the same, and was told by Baker that he had no interest in the timber, and was advised by him to buy it, and that relying upon the statements of Baker he did purchase it; and (5) that the plaintiffs, prior to his purchase, authorized the Jacksons to sell the timber to him.

The first complaint of appellants is that these defenses were inconsistent, and that their motion to require Whitaker to elect which of the defenses he would rely upon should have been sustained. Section 95 of the Civil Code of Practice provides that an answer may contain: "(1) A traverse. (2) A statement of facts which constitute an estoppel against, or avoidance of, a cause of action stated in the petition." And in section 113, subsec. 2, it is further provided that: "A pleading may contain statements of as many causes of action, legal or equitable, and of as many matters of estoppel and of avoidance, legal or equitable, total or partial; and may make as many traverses; and may present as many demurrers as there may be grounds for in behalf of the pleader." The only inhibition against the number and character of defenses or causes of action that may be asserted is that they shall not be inconsistent; the provision against inconsistent pleadings being found in section 113, subsec. 4, reading: "If, however, a party file a pleading which contains inconsistent statements, or statements inconsistent with those of a pleading previously filed by him in the action, he shall, upon or without motion, be required to elect which of them shall be stricken from his pleading. But a party may allege, alternatively, the existence of one or another fact, if he state that one of them is true, and that he does not know which of them is true."

In construing these sections of the Civil Code, we held in Smith v. Doherty, 109 Ky. 618, 60 S.W. 381 (22 Ky Law Rep. 1238), that the pleas of non est factum and no consideration were not inconsistent; saying that: "On this subject the rule may be stated in the following language: Two or more pleas may be made if all may be shown to be true, and are inconsistent only when the proving of one necessarily disproves the other. This view assumes that defenses are inconsistent only when one in fact contradicts the other, and has nothing to do with a seeming and logical inconsistency which arises merely from a denial and a plea in confession and avoidance." And this rule of practice and pleading was approved in First National Bank of Paducah v. Wisdom, 111 Ky. 135, 63 S.W. 461. Tested by the principle announced in these cases, the pleas made by the defendant were not inconsistent. He had a right to deny that the plaintiffs were the owners of the land, and in addition thereto to set up in avoidance of their claim any matters of estoppel that he relied upon. His defenses that he was an innocent purchaser without notice, and also that he had notice of the claim of the plaintiffs, and was advised by them to purchase the timber, and that they advised the Jacksons to sell it to him, were merely estoppels against them. Although he may have known of the existence of plaintiffs' claim of title, yet if he was advised by them to purchase the timber or if they authorized the Jacksons to sell it to him he was in law an innocent purchaser of it, or, to put it in another way, the plaintiffs under these circumstances would be estopped to assert any claim against him. It is only when one plea is a direct and unequivocal contradiction in fact as well as in law of another plea that the pleas will be inconsistent. The case of Minor & Sons v. Paragon Plaster Co., 124 S.W. 268, presents a good illustration of inconsistent pleas. In that case Minor & Sons were sued by the Paragon Plaster Company for the value of brick sold and delivered to them. For defense to the suit, Minor & Sons in their answer denied that they had bought any brick from the Paragon Plaster Company, and in an amended...