Reid v. Lyttle

• Decision Date: 30 October 1912
• Citation: 150 Ky. 304,150 S.W. 357
• Parties: REID v. LYTTLE et al.
• Court: Kentucky Court of Appeals

150 S.W. 357

150 Ky. 304

REID v. LYTTLE et al.

Court of Appeals of Kentucky.

October 30, 1912

Appeal from Circuit Court, Clay County.

Action by S. B. Reid against C. B. Lyttle and others. Judgment dismissing the petition, and plaintiff appeals. Affirmed.

J. W Stivers and D. W. White, both of Manchester, for appellant.

H. C Faulkner, of Barbourville, and Rawlings & Wright, of Manchester, for appellees.

MILLER J.

By a signed paper dated October 29, 1908, appellant, S. B. Reid and his wife, offered to sell to appellee C. B. Lyttle all the coal and mineral rights under appellant's tract of 165 acres of land at $5 per acre, provided the proposition should be accepted in writing, within 90 days from its date. The option provided that, upon its acceptance, it was to become and operate as a bond for title for the coal and minerals under said lands, and other rights and privileges which usually go with such ownership. On January 6, 1909, Reid's proposition was formally accepted by a writing signed "J. H. Graham, Assignee, by C. B. Lyttle, Atty. in Fact." On April 4, 1912, Reid brought this action against C. B. Lyttle, S. B. Dishman, D. L. Walker, E. G. Garrard, R. Carnahan, J. H. Graham, and the Manchester Mining & Manufacturing Company, alleging that he had given such option to Lyttle, Walker, Garrard, Dishman, and Carnahan, but that it had been taken in the name of Lyttle. The petition further alleged that "the defendants, by the defendant C. B. Lyttle, and J. H. Graham by his agent or attorney, C. B. Lyttle, accepted said option, and had a written notice of the acceptance delivered to this plaintiff," and "that by the acceptance of said option or offer of sale the defendants C. B. Lyttle, S. B. Dishman, E. G. Garrard, D. L. Walker, and R. Carnahan, or their assigns, undertook and bound themselves to pay" the purchase price. A general demurrer of Lyttle, Dishman, Carnahan, Walker, and Garrard to the petition was sustained; whereupon appellant amended his petition to read as follows: "The plaintiff, S. B. Reid, for amendment to his petition herein, says that the J. H. Graham, who is purported to have signed the Exhibit No. 2 filed with plaintiff's petition (the acceptance) by C. B. Lyttle, attorney in fact, and who is designated as assignee of C. B. Lyttle and others, was at the time of the acceptance a sleeping and silent partner of C. B. Lyttle, E. G. Garrard, R. Carnahan, S. B. Dishman, and D. L. Walker. Wherefore, plaintiff prays as in the petition." Upon the motion of the defendants, the court required the plaintiff "to make said amended petition more definite and certain by alleging whether or not the defendants were, at the time of the acceptance of the contract sued on, partners with the said J. H. Graham in the acceptance of the said contract;" and, the plaintiff having failed to comply with that order of the court, his petition was dismissed. He appeals.

In construing the petition as amended against the plaintiff the trial court evidently held he had failed to allege that Graham was acting as a partner with Lyttle, Garrard Carnahan, Dishman, and Walker when he accepted appellant's proposition, which is the foundation of this action. Appellees contend that the language of the amendment is general,...