Silver v. Overhead Door Co.
| Decision Date | 06 December 1949 |
| Citation | 225 S.W.2d 115,311 Ky. 650 |
| Parties | SILVER v. OVERHEAD DOOR CO. |
| Court | United States State Supreme Court — District of Kentucky |
J. W. Jones, Louisville, Jones & Jones, Louisville, for appellant.
James Shaw, Louisville, for appellee.
MORRIS, Commissioner.
On April 17, 1942, appellant delivered to appellee his promissory note for $901.20. In April of 1947 appellee filed petition alleging demand and non-payment and sought recovery. The substituted answer filed plead no consideration for execution of the note, and 'that said note was signed and delivered by him to plaintiff with the understanding that if he would execute the note, plaintiff would not demand payment except upon condition that defendant could obtain through efforts and influence of plaintiff a volume of business which would enable him to pay said note out of his profits from said business, but by mutual mistake of the parties thereto said condition was not inserted in and made a part of said note, and that said business was not obtained by the defendant.' A reply in denial joined issue.
When the case was called Silver moved the court to adjudge him the burden of proof. This motion was overruled and the court cast the burden on plaintiff over objection. At the close of all the testimony both parties moved for peremptory instruction. The court sustained plaintiff's motion, and the jury returned a verdict for the amount above mentioned and judgment was entered in accordance. On appeal it is contended that the court was in error, (1) in not awarding defendant the burden of proof; (2) in refusing to permit defendant to introduce certain copies of letters as secondary evidence, and lastly that the court erred in giving peremptory instruction for plaintiff, and in overruling defendant's motion for such an instruction.
On the first point appellant argues that since defensive plea was one of 'no consideration' defendant was entitled to the proof burden. The rule is that a plea of 'no consideration' places the burden on the defendant. Andrews v. Hayden's Adm'r, 88 Ky. 455, 11 S.W. 428; Lawyers' Realty Co. v. Bank of Ludlow, 256 Ky. 675, 76 S.W.2d 920, and cases cited. We are of the opinion that the court was incorrect in award of the burden. Counsel for appellant in brief says that since the court 'sustained plaintiff's motion for directed verdict, perhaps the burden is of no great importance,' unless a new trial be directed.
The facts were that appellee was engaged in the sale and installation of overhead doors. It also acted as an agent of the Roleson Company in the sale of screens and Venetian blinds. This business was not profitable, and some time in 1940 appellee sought a discontinuance and this move caused the Roleson Company to contact Silver, a former employee, and to suggest that he apply to appellee for employment. Appellant applied by letter of May 17, 1940; this led to a response, and to a later meeting of parties, and it was agreed that appellant was to handle the Roleson products on a commission basis, he to have 60 per cent of profit on business obtained, and a $25 weekly drawing account.
Appellant continued in appellee's employ for about two years during which the business was not profitable, though he drew his $25 weekly; his commissions were much less than the total amount drawn. During his employment appellant had married and found that his income was not of sufficient proportion to maintain his new situation, so he sought to have the contract terminated and found appellees agreeable. According to appellant it was agreed that relations should be reversed, appellant to take over the Roleson business, and another meeting was arranged to close details. At this meeting the account between appellant and appellee was presented and examined, and it developed that appellant had drawn on his weekly account $901.20 more than his commissions, and appellant was asked to give the company a note for the account stated, which he did.
Appellant contends that until the time he was requested to sign the note there had been no intimation that he would be expected to reimburse appellee to the extent of the excess of his drawing account, and the further contention as is above set out in his substituted answer. In his letter of application May 17, 1940, appellant after suggesting his ability to produce business wrote:
The letter containing the foregoing excerpt was introduced while the manager of appellee was on the stand. He was shown a copy of a letter of date May 18, 1940, addressed to appellant...
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