Lewis v. Helton

• Decision Date: 28 September 1911
• Citation: 144 Ky. 595
• Parties: Lewis v. Helton.
• Court: Kentucky Court of Appeals

144 Ky. 595

Lewis v. Helton.

Court of Appeals of Kentucky.

Decided September 28, 1911.

Appeal from Rockcastle Circuit Court.

R. G. & C. C. WILLIAMS for appellant.

L. W. BETHURUM & A. G. PATTERSON for appellee.

OPINION OF THE COURT BY JUDGE LASSING — Affirming.

This litigation involves but a single question of fact: was the initial payment of $2,000 upon the purchase price of a tract of land made by appellee to appellant? Upon the trial of this question, under proper instructions, a jury found in favor of appellee, and the case is brought here upon a question of practice.

Appellee contracted with appellant for a farm and certain personal property thereon, agreeing to pay him $4,000 therefor. A writing evidencing their agreement was drawn up by appellant and delivered to appellee on the 8th day of September, 1910. This writing recited that the $2,000 had been paid cash in hand, and that the second installment of the purchase money was due sixty days thereafter, when the deed was to be made. Upon the trial appellant admitted drawing this writing, but insisted that no money had in fact been paid, and that under their real agreement none was to be paid for sixty days thereafter. Appellee was placed in possession of the farm, and along in February following, upon his declining to accept a deed providing for the payment of $4,000, suit was instituted to enforce the contract and subject the land to the payment of the purchase price. It appears that, on the morning of the day following the trade appellant appeared at the home of appellee and requested him to sign a duplicate contract of sale so that each could have a copy. With appellant's petition he filed what he alleges was the real contract of sale, which is as follows:

                                              Wildie, Ky., Sept. 8, 1909
                

"This contract made and entered into by and between R. H. Lewis, of the first part and Carlo Helton of the second part,

"Witnesseth, that for and in consideration of the sum of $4,000, Four Thousand Dollars, two thousand to be paid in sixty days at the same time deed is to be made and time to be mentioned for the two thousand remaining, the said R. H. Lewis sells and conveys to Carlo Helton the farm known as the Jas. Prewitt farm being the same farm Lewis bought of Prewitt and containing 214 3-4 acres more or less. Said Lewis also sells to Helton all of his farming implements and his part of corn now on farm. Lewis further gives Helton seeding purposes now and full possession Jan. 1, 1910. The said Helton takes Lewis' contract with his men on farm to wit, Langford and Eagan.

                                               "R. H. LEWIS
                                               "CARLO HELTON."
                

Witness:

                   Carter Helton
                   William Helton."
                

With appellee's answer he filed the contract of sale which was drawn by appellant on the day the sale was made, said contract being as follows:

                                                     "Sept. 8, 1909
                

"This contract made and entered into by and between R. H. Lewis of the first part and Carlo Helton of the second part;

"Witnesses that for and in consideration of the sum of $4,000, four thousand dollars, to be paid $2,000 cash in hand, the remaining $2,000 in time to be mentioned when deed is made R. H. Lewis do sell and convey to the second party the farm known as the Prewitt farm, the same that said Lewis bought of Prewitt containing 214 3-4 acres more or less. Said deed is to be made in sixty days at said time second payment is to be made. Said Lewis also sells to said Helton all of his farming implements and his part of corn crop now growing on said farm. Said Helton agrees to take Lewis' contract with men on farm, to-wit, Langford and Egan. Said Lewis gives Helton all privileges for seeding purposes at once and full possession Jan. 1, 1910.

"Witness our signatures:

                                (Signed) R. H. Lewis
                                         Carlo Helton,
                  "Witness: Carter Helton,
                           William Helton."
                

As will readily be observed, there is a radical and irreconcilable difference between these two papers. They support the claims of their respective holders.

The case was prepared in equity, but upon appellant's motion the issue as to whether or not this payment had been made was tried by a jury. Upon the trial appellant moved to have the testimony introduced orally. Counsel for appellee objected, and insisted that as the case had been...