Landis v. McCreary & Co.

• Decision Date: 01 December 1915
• Citation: 167 Ky. 128,180 S.W. 59
• Parties: LANDIS v. MCCREARY & CO.
• Court: Kentucky Court of Appeals

180 S.W. 59

167 Ky. 128

LANDIS v. MCCREARY & CO.

Court of Appeals of Kentucky.

December 1, 1915

Appeal from Circuit Court, Bourbon County.

Suit by McCreary & Co. against E. E. Landis, with counterclaim by defendant. Judgment for plaintiffs allowing part of the counterclaim, and defendant appeals. Affirmed.

Talbott & Whitley, of Paris, for appellant.

E. M Dickson, of Paris, and J. Pike Powers, Jr., and Powers &amp Thornburgh, all of Knoxville, Tenn., for appellees.

HURT J.

This was a suit in the Bourbon circuit court brought by the appellees, McCreary & Co., a partnership at Knoxville, Tenn against the appellant, E. E. Landis, in which the appellees sought to recover of the appellant the sum of $4,629.53, the alleged value of 21 mules and other items composing the outfit of a contractor for building roads, and the value of the use of the outfit from December 9, 1911, until June 15 1912. The appellees claimed, in their petition in equity, that the outfit had been put into the possession of the appellant under an agreement that he was to take it to Granger county, Tenn., from Jefferson county, in the same state, where the parties then were, and as soon as the appellant could get the outfit to work upon a contract which he had in the first-named place he would come to Knoxville, and there purchase the outfit and secure the payment of its price to be then agreed upon, or else the parties would agree upon and enter into a contract by which appellant would pay to appellees a fair price for the use of the outfit while in his use and possession, and that appellant did neither of these things, but in June of the following year converted the outfit to his own use, and moved same out of the state of Tennessee into Kentucky, without the knowledge or consent of the appellees.

By an answer and counterclaim the appellant traversed the allegations of the petition, and further alleged that, at the time it was claimed by appellees that the outfit was delivered to him to be carried to Granger county, the appellees sold the outfit to him, and that he purchased the same; that at said time the appellees owed him upon account for services performed by him as superintendent for appellees and for money and property furnished them; that the price agreed upon for the outfit was $2,923.65, and that he paid for the outfit by an agreement with the appellees to give them a credit by the agreed price for the outfit upon the account which they owed him, which left a balance due him from them upon the account; and that appellees had since paid to him the sum of $150, which, after deducting other credits, left unpaid of the account the sum of $529.23, which he prayed judgment for against appellees. The affirmative averments of the an swer and counterclaim were denied by a reply.

A large amount of evidence was taken, which was exceedingly contradictory and conflicting upon all the material issues in the case. The chief element of the account which appellant claimed that appellees owed to him was the salary which appellees owed him for his services as their superintendent for two years and three months of time previous to December 11, 1911. Appellant claimed that they had agreed to pay him the sum of $150 per month, while the appellees claim that it was only $75 per month which he was to be paid, the difference between their contentions as to the amount of the salary being $2,025. The appellees claimed that at the time the contractor's outfit was turned over to appellant to be taken to Granger county it was worth the sum of $3,954.78; while appellant claimed that at that time he bought it for $2,923.65. The case being submitted for trial and judgment upon the pleadings and proof, the chancellor held that there never had been a contract between appellant and appellees as to the amount of his salary, but that he was entitled to such salary as his services were reasonably worth, which the court fixed at the sum of $100 per month. This had the effect of reducing the account of appellant against the appellees in the sum of $1,366.66. It was further held that no sale had been made of the outfit by appellees to appellant, but that at the time he took it to Granger county it was worth only $3,136.03, instead of $3,954.78, as claimed by appellees. The court also held that the reasonable value of the use of the outfit from December 11, 1911, until May 22, 1912, when it was adjudged that appellant had converted the property to his own use, was the sum of $600. Deducting from the amount of the account which appellant claimed the appellees owed him, and which was $5,472.44, the sum of $1,366.66, the amount of salary he had charged against appellees in excess of $100 per month, and $2,028, which he admitted should be credited upon the account for money and other items furnished him by appellees, left the...