Levi v. Loevenhart & Co.

• Decision Date: 28 April 1910
• Citation: 127 S.W. 748,138 Ky. 133
• Parties: LEVI v. LOEVENHART & CO.
• Court: Kentucky Court of Appeals

127 S.W. 748

138 Ky. 133

LEVI v. LOEVENHART & CO.

Court of Appeals of Kentucky.

April 28, 1910

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Action by Joseph Levi against Loevenhart & Co. From a judgment for defendants, plaintiff appeals. Affirmed.

Samuel A. Lederman and Kohn, Baird, Sloss & Kohn, for appellant.

Nathan Kahn, for appellees.

LASSING J.

On October 1, 1906, Albert G. Metzler, who was then in the employ of Loevenhart & Co., gave to Joseph Levi the following order: "Louisville, Kentucky, Oct. 1, 1906. Messrs Loevenhart & Co., Louisville, Ky.--Gentlemen: Kindly pay to Mr. Jos. Levi $7.50/100, seven and 50/100 dollars each week out of my salary as long as I am in your employ, or until my indebtedness of $500 to Mr. Jos. Levi is settled. [Signed] Albert G. Metzler"--directing them to pay to said Levi out of his wages the sum of $7.50 per week until a debt due him, amounting at that date to $500, and evidenced by a promissory note, was satisfied. Loevenhart & Co. accepted this order, as appears from the following indorsement thereon: "Accepted. Loevenhart & Co. Oct. 1st 1906." Thereafter Metzler filed his petition in bankruptcy, and was in due time adjudged a bankrupt and discharged. After he became a bankrupt, Loevenhart & Co. discontinued the payment of the weekly stipend to Levi, and on March 10, 1908, he filed suit in the Jefferson circuit court to compel Loevenhart & Co. to comply with the terms of the order and to pay to him a balance alleged to be due him on his debt, amounting to $237.50. He pleaded, further, that Metzler was still in the employ of the defendants, and had been ever since they ceased paying him as per the order, and that, under the terms of the order, there was then in their hands, or should have been, more than enough money, if they had complied with their agreement, to satisfy the balance of his debt.

A special demurrer and certain motions to strike were disposed of, and the defendants answered, in five paragraphs. The first is a traverse. The second pleads payment by Metzler. The third pleads usury in the note to the amount of $265.50. The fourth pleads, substantially, that Levi had taken advantage of the embarrassed financial condition of Metzler and had overreached him, and induced him to execute an unconscionable contract, the enforcement of which was against a sound public policy, and that, because of the advantage thus taken of him in procuring him to execute the contract for $500, when, as a matter of fact, he only received $222.85, the same should not be enforced. In the fifth paragraph he set up the discharge of Metzler by the bankruptcy court, and filed with his answer copies of the orders of the federal court for the Western district of Kentucky, showing his adjudication and discharge in bankruptcy, together with a schedule filed by him in said court, in which plaintiff is given as a creditor, and he sought to be relieved from the payment of plaintiff's claim along with others. This adjudication and discharge they pleaded in bar of plai...