Morgan v. Mengel Co.

• Decision Date: 23 June 1922
• Citation: 242 S.W. 860,195 Ky. 545
• Parties: MORGAN v. MENGEL CO.
• Court: Kentucky Court of Appeals

242 S.W. 860

195 Ky. 545

MORGAN v. MENGEL CO.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Graves County.

Action by the Mengel Company against E. A. Morgan and another. Judgment for the plaintiff, and the named defendant appeals. Affirmed.

J. E Warren, of Mayfield, for appellant.

W. J Webb, of Mayfield, for appellee.

SAMPSON J.

This action was commenced by the Mengel Company against E. A Morgan and George H. Greenup, in the Graves circuit court to recover of the defendants the sum of $3,461.77, for timber and logs which it is averred the defendants sold and agreed to deliver to the Mengel Company on or before August 1, 1920 and had failed to deliver. About June 5, 1920, George H. Greenup obtained from the Mengel Company $7,000, for which he agreed to furnish timber to the company. At the time the money passed from the Mengel Company to Greenup they entered into the following written contract:

"Louisville, Kentucky, June 5, 1920.

We, the undersigned, do hereby sell and convey to the Mengel Company all of the oak timber standing on a tract of 413 acres of timber land, belonging to us and described under Exhibit A, hereto attached.

This sale is made in consideration of the cash advance of $7,000 made by the Mengel Company and now in our hands. This document becomes void and of no value after we have delivered to the Mengel Company sufficient logs to offset the total amount of our indebtedness to the Mengel Company.

Geo. H. Greenup.

Sworn to and subscribed before me by Geo. H. Greenup this June 5, 1920.

F. L. Moseley,

Notary Public, Jeffererson County, Ky.

My commission expires Jan. 8, 1924.

E. A. Morgan.

Subscribed and sworn to before me by E. A. Morgan this June 23, 1920.

W. H. Wyman,

Notary Public, Graves County, Ky.

My commission expires January 27, 1924."

Before the execution of the contract Greenup needed credit to carry on his logging business, and he employed Morgan with a team at $10 per day to assist him in the work, and agreed to give Morgan $2,500 if he would become the surety of Greenup upon certain notes which Greenup was making to raise money with which to carry on his business. To secure Morgan against loss on account of said suretyship Greenup executed and delivered to Morgan a mortgage covering the 415 acres of timber land located in Tennessee, from which the timber sold to Mengel Company was to be taken. It appears that Greenup went into bankruptcy before this suit was commenced, on the 17th of August, 1920; at any rate he did not file an answer or make defense to the action. Morgan filed an answer, set-off, and counterclaim, by which he denied that he entered into a contract in writing or otherwise with the Mengel Company by which he agreed to sell or convey to the Mengel Company any of the $7,000 which the petition alleges was paid to him and Greenup as consideration for the timber. He then averred that Greenup was the owner and in possession of the 415 acres of timber land in Tennessee, and that as such owner he contracted to sell the Mengel Company certain oak timber at the price of $7,000 which the Mengel Company advanced to the defendant Greenup; that at that time and before defendant, Morgan, held a mortgage or deed of trust against all the timber standing on said tract of land. To enable Greenup to contract with the Mengel Company for the sale and delivery of the said quantity of timber, Morgan agreed to release so much of said timber from the operation of said mortgage as was necessary to satisfy the $7,000 advanced by the Mengel Company, and that this was the only undertaking or agreement to be performed by Morgan with the Mengel Company. He further averred that the contract above copied was wholly prepared by the plaintiff in the absence of Morgan and that the same was presented to him and represented by the plaintiff's agents as being only such a contract as above set out and that his signature thereto was desired for the purpose hereinafter set out and that upon such representation Morgan signed his name to said contract, and that the said contract did not contain all of the agreement made between the Mengel Company and Greenup and Morgan.

By another paragraph of the answer it is averred that the plaintiff company knew that Greenup was extensively engaged in the business of buying and selling logs and timber, but that the only land he owned was a tract of 415 acres located in Tennessee; that simultaneously with the execution of the contract sued on, and thereafter, it was agreed between the plaintiff Mengel Company and Greenup that any timber procured from any other source, and which conformed to the specifications agreed upon by the parties, should be shipped, by Greenup to and accepted by the plaintiff, and credited upon the advance of the $7,000, said credit to be at the stipulated price agreed upon by Greenup and the plaintiff; that under said arrangement Greenup procured and had ready for shipment and tendered to the plaintiff logs and timber of the species and dimensions called for in his agreement with plaintiff; that Greenup requested the plaintiff to accept such logs and timber for shipment in accordance with the contract; the aggregate amount of which logs and timber so procured and owned by said Greenup which he so tendered and was ready to be delivered to the plaintiff at said prices was more than sufficient to have satisfied said $7,000 advance in full. A general demurrer was filed to the answer, set-off, and counterclaim, and sustained by the court to the second paragraph of the said pleading, which was all of the affirmative matter therein.

Upon the calling of the case for trial the defendant, Morgan, entered a motion for a continuance of the case, and filed in support thereof affidavits, but the court overruled this motion to which Morgan excepted. The jury then came, and, after hearing the evidence and considering the same in connection with the instructions of the court, returned a verdict for the Mengel Company in the sum of $3,461.77. Judgment being entered in accordance with the verdict, Morgan appeals.

In his motion and grounds for a new trial appellant sets out the following reasons: (1) The court erred in forcing the defendant into trial in the absence of his codefendant George H. Greenup; (2) the court erred in refusing to give to the jury instruction B, directing the jury to find for the defendant; (3) the court erred in giving instruction A, which directed the jury to find for the plaintiff. One of the contentions of appellant Morgan is that the writing sued on does not express the agreement made between himself and Greenup, on the one side, and the Mengel Company on the other, but said writing omits a large part of said contract and does not embody some very material parts of the contract. It is his contention that he was merely releasing the timber on which he had a mortgage so that Greenup might sell the same to the Mengel Company, and thus obtain $7,000 cash, but that he did not assume the debt of Greenup or obligate himself to pay to the Mengel Company any money whatever. In support of his contention that the contract does not express the terms of the agreement, he says that he was deceived and misled by the false statements and representations of the agents of the Mengel Company and Greenup, and was thus misled into signing the contract. According to his evidence he did not read the contract before he signed it, but signed it upon the representations of Greenup and Williams, the agent of the Mengel Company. He does not state, however, that he was not afforded a fair opportunity to read the contract. He was overseeing the loading of a car of logs at the siding when Williams and Greenup approached him and asked him to sign the contract. Without reading it he stepped aside and...