Mercer v. Hickman-Ebbert Co.

• Decision Date: 26 November 1907
• Citation: 105 S.W. 441
• Parties: MERCER v. HICKMAN-EBBERT CO.
• Court: Kentucky Court of Appeals

105 S.W. 441

MERCER v. HICKMAN-EBBERT CO.

Court of Appeals of Kentucky.

November 26, 1907

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Action by Mack Mercer against the Hickman-Ebbert Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Little & Slack, for appellant.

Sweeney Ellis & Sweeney, for appellee.

CLAY C.

Appellant Mack Mercer, instituted this action against appellee Hickman-Ebbert Company, alleging that on February 24, 1906, he entered into a contract with appellee, by the terms of which he was to cut all the hickory timber on a certain tract of land in Todd county, Ky. according to certain specifications, at the price of $10 per 1,000 feet, 75 per cent. of which was payable as the work progressed, and the balance upon completion thereof; that he cut 55,914 feet of timber which was accepted by appellee, and for which appellee became indebted to him in the sum of $559.14, no part of which had been paid, except the sum of $62.80 paid April 4, 1906. A copy of the contract was filed with the petition. Appellee's defense was that the true contract price for cutting the timber, as agreed upon between appellant and appellee, was $1 per 1,000 feet, but by mistake the price was written $10 in the contract, instead of $1, which was the usual and customary price for such work; that the amount for which appellee became indebted to appellant for said work was only $55.14, but that appellee advanced to appellant the sum of $62.80, which overpaid him in the sum of $6.60, and for which as a counterclaim judgment was asked, accompanied by a prayer that the case be transferred to equity to correct the mistake in the contract. The case was transferred to equity, and judgment rendered in favor of appellee. This judgment appellant is seeking to have reversed.

Appellant testified that his agreement with appellee was that he should be paid $10 per 1,000 feet; that the contract was drawn up and read to him, as he could not read, and the price as read to him was $10 per 1,000 feet; that prior to that time he had had no experience in cutting hickory timber, and did not know the customary price; that his time alone was worth $5 or $6 per day; that his brother assisted him in carrying out the contract; that his expenditures in time, labor, and money amounted to about $500. J. R. Mercer, appellant's brother, corroborated appellant's statements as to the expenditures made. D. C. Stimson testified that appellant's brother, J. R. Mercer, informed him that appellant's contract called for payment of $10 per 1,000 feet, which he regarded as too much, and that he immediately advised J. H. Hickman, president of the Hickman-Ebbert Company, of the fact. It further appears from the testimony that the above information was given to J. H. Hickman prior to appellant's going to work, and that Hickman did not inform appellant of the mistake in the contract. J. H Hickman, president, testified that appellant came to his office on February 24, 1906, and stated that he understood that appellee had some timber it wanted cut; that witness told him it had; that appellant asked what appellee was willing to pay; that witness told him they were willing to pay the market price, which was 85 cents per 1,000 feet; that appellant stated that he could not make wages at that price, as he would have to pay railroad fare to Todd county and back; that witness then turned to Charley Dawson, who was present, and asked him what was the ruling price for cutting hickory timber; that the latter's answer was from 85 cents to $1 per 1,000 feet; that witness then agreed, in view of the railroad fare having to be paid, to pay appellant $1 per 1,000 feet; that appellant agreed to take the contract if appellee would advance him a little money to leave with his family; to this appellee...