Roberts v. C.W. Adams & Son Co.

• Decision Date: 29 April 1908
• Citation: 110 S.W. 314
• Parties: ROBERTS v. C. W. ADAMS & SON CO.
• Court: Kentucky Court of Appeals

110 S.W. 314

ROBERTS v. C. W. ADAMS & SON CO.

Court of Appeals of Kentucky.

April 29, 1908

Appeal from Circuit Court, Henry County.

"Not to be officially reported."

Action by the C. W. Adams & Son Company against Sam Roberts. From a judgment for plaintiff, defendant appeals. Affirmed.

J. R Fears, H. K. Bourne, and W. S. Pryor, for appellant.

Moody &amp Barbour, for appellee.

O'REAR C.J.

This is an equitable action by appellee, suing as a creditor of the alleged mercantile firm of J. S. Hundley and Fred Roberts seeking to compel the payment of its debt by appellant Sam Roberts because the latter, as an heir at law of Fred Roberts, now deceased, had inherited from his father and was then possessed of certain lands, which were of greater value than the plaintiff's debt; also because appellant Sam Roberts had purchased the shares of his brothers and sisters in the same tract of land, and as part of the consideration had agreed to pay off all the indebtedness of their deceased ancestor, Fred Roberts. Appellant denied that Fred Roberts was a partner in the mercantile venture, and denied, too that he had agreed to pay off all the indebtedness of the decedent as part of the consideration for the conveyances to him. The principal question--indeed, the controlling question--is whether Fred Roberts was a partner of J. S. Hundley in that matter. The circuit court decided that he was, and adjudged a sale of the land to pay appellee's debt. Appellant by this appeal asks that the chancellor's finding of the fact be reversed upon the evidence in the record.

The testimony of the witnesses is sharply conflicting, and utterly irreconcilable. Our effort has been to sift the truth from the mass of contradictory testimony, much of it plainly biased, and some of it false. Fred Roberts, the decedent, was a farmer living in the country in Henry county. He had reared a family of seven children, all or most of whom were married. He had accumulated an estate of some $4,000, consisting mainly of about 225 acres of land. One of his daughters had married J. S. Hundley. The latter had been engaged in a small way in conducting a country store of general merchandise. His stock had burned out. He then bought out another little stock of goods for $250 or $300. He had not enough means to pay for it. Fred Roberts furnished $150 of the money, paying it direct to the vendor. This much is conceded, and, besides, is well established by the proof. About that time Fred Roberts' wife died, and he went to live with the Hundleys, at least spent most of his time with them for several months, during which the store was conducted, when he married again. The mercantile venture proved a failure, and about the time of Fred Roberts' last marriage J. S. Hundley (in whose name alone the store was carried on) went into voluntary bankruptcy. He scheduled all the merchandise accounts as his debts, and took all the remnant of his stock as exempt property, moving it from his store over to his dwelling, a short distance away, where Fred Roberts was then living with him. The merchandise was then divided between Fred Roberts and J. S. Hundley. Appellant and other children of Fred Roberts were present at the division. Shortly afterwards Fred Roberts died. There was a suit to settle his estate. A number of debts were proved up against the estate, something like $1,500 in amount. His personal estate seems to have been inconsiderable. Then it was that appellant agreed to buy out the other heirs, paying them each $150 for their shares, except he paid two of them $175 each, and agreed to pay their father's indebtedness. Appellant claims that the indebtedness assumed was that proven up in the settlement suit--none of which was on account of the Hundley mercantile venture--while appellee claims the agreement was to assume all indebtedness. Appellee and one of his brothers, Newt Roberts, fell out on account of a tombstone, when Newt informed the creditors of J. S. Hundley, merchant, that Fred Roberts had been a partner in that business, whereupon this suit and others were brought to compel Sam Roberts to pay these debts.

Appellee's evidence to establish the fact of partnership, aside from the writing hereinafter discussed, consists in J. S Hundley's testimony that he and Fred Roberts were partners, each putting in $150 of capital, with the agreement to share profits equally, and that, upon the dissolution of the partnership, they divided the stock equally between them. Newt Roberts testified that he had heard his father say he was interested as a partner in the store, and saw him in there, selling goods and exercising acts of proprietorship. He also testified to the division. Newt's wife testified to the same facts. After the case had progressed in preparation, and the parties had become worked up more in feeling, J. S. Hundley again testified, this time for the other side, in which he said his former testimony was false. When he first testified, he said the agreement between him and Fred Roberts was in writing, signed by Fred Roberts and by the witness, that the paper was in the possession of the appellant, who thereupon produced a paper, which J. S. Hundley identified and testified to as the original contract. It is as follows: "March 15th, 1902. Noe, Ky. This 15-day of March 1902, I Fred Roberts do hereby agree to furnish J. S. Hundley one hundred fifty dollars $150 to be invested in merchandise at Noe, Ky. for which Fred Roberts am to receive one half of the proffets from said business the said J. S. Hundley is to attend to all of the business J. S. Hundley is to be responsible for all depts he makes said Fred Roberts name is not to be used in the business said Fred Roberts is not to be responsible for any depts that said J. S. Hundley makes. J. S. Hundley. Fred Roberts." On his last examination Hundley says that he himself wrote the whole of that paper, including the signature of Fred Roberts, after the latter's death, and, indeed after this suit was brought. Several other witnesses, apparently without interest or other bias, testify that Fred Roberts told them that he was interested in the store, and that they saw him there selling goods. On the other hand, J. S. Hundley's wife, the daughter of Fred Roberts, testified on behalf of her brother, the appellant, that the paper copied above was written by her husband in the presence of Sam Roberts and Louis Roberts (another brother) after the death of Fred Roberts; that it was written by J. S. Hundley at the request of Sam Roberts (appellant) after this suit was brought in order to get a statement from J. S. Hundley concerning the real relation between him and Fred Roberts, ostensibly for use in the preparation of the defense in this suit. Sam Roberts corroborates Mrs. Hundley in this testimony, as does Louis Roberts, though the latter weakly. As to the division of the goods, these three witnesses say Fred Roberts bought $25 or $30 worth of them from J. S. Hundley after the bankruptcy, but they do not agree as to the manner of payment; some saying they were paid for at the time in money and property, and others that they were credited upon the $150 loan, as it is called, made by Fred Roberts to Hundley when the latter began the business. A number of notes executed by Fred Roberts and proved up in the settlement case were introduced for purposes of comparison with the handwriting of Fred Roberts' signature to the contract relied on in this case. Two very intelligent, disinterested witnesses of considerable experience in examining handwritings testified that, in their opinion, the signature of Fred Roberts to the contract was genuine, although they noted a variance between his signatures to two certain bank...