McAlister v. Whitford

• Decision Date: 15 June 1962
• Citation: 365 S.W.2d 317
• Parties: Marion McALISTER et al., d/b/a Nashville Sash and Door Company, Appellants, v. W. R. WHITFORD et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 317

365 S.W.2d 317

Marion McALISTER et al., d/b/a Nashville Sash and Door

Company, Appellants, v. W. R. WHITFORD et al., Appellees.

Court of Appeals of Kentucky.

June 15, 1962.

Rehearing Denied March 22, 1963.

L. B. Weier, Madisonville, for appellants.

Carroll S. Franklin, Madisonville, for appellees.

MONTGOMERY, Judge.

Marion McAlister, et al., doing business as Nashville Sash and Door Company, appellants, sued W. R. Whitford and his wife, Helen, to recover $3,137.69 as the balance due on an account for materials and supplies furnished for the Whitford house and to enforce a materialman's lien thereon. Both parties moved for summary judgment. Judgment in the sum of $128 was granted appellants. They appeal from the judgment in so far as any further recovery was denied.

By a contract dated June 30, 1958, the Whitfords, appellees, agreed to pay $42,891.47 to James B. Barker, doing business as Barker Construction Company, for the construction of a house in Madisonville. An advance payment of $8,000 was made when the contract was signed. The balance of the contract price was to be paid upon completion of the contract.

The construction started July 1, 1958. About four or five weeks later, Barker requested that appellees make him a further advance. Upon advice of their counsel, appellees agreed to make the advance if receipts from the suppliers of building materials used on the job were furnished to show that the cost of the materials had been paid. On September 29, 1958, Barker furnished appellees with the requested receipts, including the following statement from appellants, to-wit:

'Received check from

Barker Const Co.

9/29/58

for Jack Whitford Job

/s/ Duncan Kennerly'

The statement was written on a memo pad sheet which bore at the bottom the following printed inscription, to-wit:

'Nashville Sash & Door Company

152 Second Ave., N.

Nashville, Tennessee

Telephone AL 6-3171'

Kennerly identified himself as the representative of appellants who handled the sale of the material and supplies on the Whitford job on order from Hayden Gilkey, Barker's representative. Gilkey had been buying from appellants and dealing with Kennerly for more than three years. Kennerly testified that he gave the statement to Gilkey at his request when Gilkey presented him with a postdated check for the amount then due appellants. Kennerly said that Gilkey wanted the statement so that Barker could make a 'draw' from Whitford.

Barker presented the receipts to appellees and received from them a check for $16,000 on October 1, 1958. A day or so later, Whitford learned that Barker had obtained the receipts by delivering postdated checks to the suppliers. Whitford undertook to stop payment on his check but it had already been honored by his bank.

Barker's postdated check to appellants was not honored. Appellants continued to sell material to Barker. Thereafter, Barker's contract was nullified. Appellees completed the house themselves. Appellants filed a materialman's lien against the property which they have sought to enforce.

Appellants contend that: (1) Barker and Gilkey were the agents of appellees in procuring the statement from them; (2) appellees had sufficient notice to protect themselves from any loss;...