Procter v. Tubb

• Decision Date: 11 November 1915
• Parties: PROCTER v. TUBB ET AL.
• Court: Kentucky Court of Appeals

179 S.W. 620

166 Ky. 676

PROCTER v. TUBB ET AL.

Court of Appeals of Kentucky.

November 11, 1915

Appeal from Circuit Court, Warren County.

Action by R. W. Stanton against B. F. Procter, who filed an answer and cross-petition, making J. M. Tubb a party. Judgment for Stanton against Procter and for the latter against Tubb. Procter appeals. Affirmed.

B. F Procter, of Bowling Green, for appellant.

Rodes &amp Wallace, of Bowling Green, for appellees.

CLAY C.

Plaintiff R. W. Stanton, sued defendant, B. F. Procter, to recover the sum of $84.50 for 84 1/2 days' work at $1 per day and the sum of $96.66 for 161 bushels of corn at 60 cents per bushel furnished to the defendant, and for the further sum of 55 cents advanced to the defendant to pay freight. Plaintiff admitted an indebtedness on his part of $58.38 for supplies furnished him by defendant, and asked judgment for $123.27. Defendant Procter filed an answer, cross-petition, and counterclaim, making one J. M. Tubb a party. He denied the allegations of Stanton's petition and set up a contract dated December 26, 1911, by the terms of which both Stanton and Tubb rented defendant's Forrest farm and agreed to cultivate not less than 10 acres in tobacco and not less than 2 acres in strawberries, and to build a barn on the farm. Defendant alleged that all the work done by Stanton was done under this contract, and he had no agreement with Stanton by which he was to pay him for work done on the Woods farm, another farm owned by defendant. Defendant further set up a note for $100, executed by Stanton and Tubb to him and indorsed to the American National Bank and secured by mortgage on two mules and a wagon owned by Tubb, and asked that the bank interplead and assert its claim. Defendant also pleaded a partnership between him and Tubb, by which Tubb was to operate defendant's dairy, and asked a settlement of the partnership account. It appeared that the $100 note owned by the bank was subject to a credit of $22.36. The commissioner reported in favor of Stanton, but allowed Procter a credit for $58.38 for supplies furnished Stanton, and of one-half of the balance of the $100 note, amounting to $38.82. The commissioner reported that he was unable, from the evidence before him, to settle the dairy partnership, but that after charging Tubb with one-half of the balance due on the American National Bank note and the other items, and allowing him certain credits, Tubb was still indebted to Procter. On final hearing the chancellor gave judgment in favor of Stanton for $83.90. He further adjudged that Procter should recover of Tubb the sum of $112.61. Procter appeals.

The principal issues between Stanton and Procter are: (1) The value of the corn which Stanton furnished Procter; (2) was the rent contract of December 26, 1911, abrogated by the parties? (3) did Procter employ Stanton to work on the Woods farm at $1 per day, and, if so, how many days did Stanton work?

It appears that Tubb bought some oats and rented a meadow from R. E. Procter for the price of $150. The contract made by Tubb with Procter recites that the consideration was to be deducted from the rent note executed by R. E. Procter to B. F. Procter. The principal issue between Tubb and Procter is whether or not Tubb was to pay one-half of the $150.

This case was originally brought at common law. The equitable issues were introduced into the case by defendant Procter. By agreement of the parties, the case was transferred to the equitable docket. On...