Mitchell v. Whaley

• Decision Date: 17 April 1906
• Citation: 92 S.W. 556
• Parties: MITCHELL v. WHALEY et al.
• Court: Kentucky Court of Appeals

92 S.W. 556

MITCHELL v. WHALEY et al.

Court of Appeals of Kentucky.

April 17, 1906

Appeal from Circuit Court, Nicholas County.

"Not to be officially reported."

Action by D. B. Mitchell against Joseph E. Whaley and another. From a judgment for defendant Charles S. Talbert, plaintiff appeals. Reversed.

Kennedy & Dickson, for appellant.

Holmes & Ross, for appellees.

BARKER J.

The appellant, D. B. Mitchell, instituted this action against Joseph E. Whaley and Charles S. Talbert, as partners under the firm name of Whaley & Talbert, to recover a judgment for the sum of $300 evidenced by the firm's check for that amount, and also to recover a judgment for $300 on a note signed by the firm for that sum. The transaction involved herein grows out of a sale by Mitchell, as he claims, of a two-thirds interest in a horse called Clearmont Chief, to the firm, Whaley & Talbert for the sum of $600. Talbert alleges: That the horse was not sold to the firm, but to Joseph E. Whaley individually. It is admitted, however, by all parties, that a two-thirds interest in the horse was sold either to the firm of Whaley & Talbert or to Joseph E. Whaley individually, for the sum of $600. That after the sale Talbert executed and delivered the firm's check to Mitchell for $300, which is as follows "Carlisle, Ky. July 15, 1903. Farmers' Bank of Carlisle, Ky.: Pay to the order of D. B. Mitchell ($300.00) three hundred dollars, for payable Oct. 1, 1903, for 1/3 of chestnut stallion Clearmont Chief. Whaley & Talbert." That afterwards Whaley executed and delivered the note sued on, which is as follows: "$300.00. Carlisle, Ky. July 15, 1903. On October 1, 1904, after date, we promise to pay to the order of D. B. Mitchell three hundred dollars, for value received, negotiable and payable at the Deposit Bank of Carlisle, Kentucky, with interest at the rate of 6 per centum per annum from October 1, 1903, until paid. The drawers and indorsers hereof waive presentment, protest, and notice of dishonor. Second and last payment for 2/3 interest in chestnut stallion 'Clearmont Chief.' Whaley & Talbert." The answer to the petition as amended, which declares on the foregoing instruments, pleads non est factum for Charles S. Talbert, and "no consideration" for the firm, and that the horse was unsound and worthless as to both defendants. Upon a trial of the case, there being no evidence whatever of the horse being unsound, the court gave a peremptory instruction to the jury to find for the plaintiff as against Joseph E. Whaley for the amounts claimed, and the jury, under the instruction of the court as to Talbert's liability, found a verdict in his favor upon the issue presented by him. Of this verdict, and the judgment predicated thereon, the plaintiff, D. B. Mitchell, is here on appeal.

While there is much in the evidence which goes to establish the claim of appellant that the horse was sold to the firm of Whaley & Talbert, for the purposes of this appeal it may be conceded that the sale was to Joseph E. Whaley, individually and, this being admitted, we will examine the instructions awarded by the trial court on the issue as to Talbert, with a view of testing the soundness of the principles of law...