Smith v. Brannin

• Decision Date: 20 November 1880
• Citation: 1 Ky.L.Rptr. 414,79 Ky. 114
• Parties: Smith, & c., v. Brannin, & c.
• Court: Kentucky Court of Appeals

79 Ky. 114

1 Ky.L.Rptr. 414

Smith, & c., v. Brannin, & c.

Court of Appeals of Kentucky.

November 20, 1880

1. Every question presented upon an appeal must be taken to have been disposed of by the decision upon the appeal, unless it be expressly left open for further litigation.

2. When an appeal presents two or more questions, and the members of this court are equally divided upon one or more of them, and the judgment is reversed upon other points where there is agreement, the opinion of the judges who agree with the court below in regard to the questions as to which an equal division exists, becomes the law of the case as to such questions.

3. The court below and this court, in the further progress of the case, are bound by it as though all the judges had concurred with the lower court.

APPEAL FROM LOUISVILLE CHANCERY COURT.

HARLAN & WILSON, D. W. ARMSTRONG, AND W. REINECKE FOR APPELLANTS.

The division of this court upon the former hearing operates as an affirmance as to all questions upon which the division existed. The judgment of the vice chancellor, therefore stands as the law of this case upon all questions upon which the court differed. (Gen. Stat., 279; Brannin v. Smith MS. Opin., 1875; Commonwealth v. Beaumarchais, 3 Cal. 150; Phillips v. Williams, 3 Grattan, 264 Brown v. Crow's heirs, Hardin, 446; McLean v. Nixon, 18 B. Mon., 774; Mason v. Mason, 5 Bush, 193; Macklin v. Crutcher, 6 Ib., 401.)

CALDWELL & HARWOOD FOR APPELLANT.

We hold that the opinion of the two judges (Peters and Pryor) who concurred with the vice chancellor on the former appeal in deciding that, under the several contracts between these parties, the appellants were joint owners with Hughes in the cotton bought by appellees, and that appellees were therefore liable to them, settled the law of this case. (Phillips v. Williams, 5 Grattan, 264.)

BARR GOODLOE & HUMPHREY AND W. LINDSAY FOR APPELLEES.

The opinion of Judges Peters and Pryor is equal to that of Judges Cofer and Lindsay, and they are equal to each other. Thus the law of the case was at large, so far as the lower court was concerned, and the mandate so treats it, except in a certain event. Phillips v. Williams is not in conflict with this view.

OPINION

COFER CHIEF JUSTICE:

When this case was before this court on a former appeal, it appeared that in December, 1865, A. B. Montgomery and John Wesley Hughes entered into a copartnership for the purpose of growing a crop of corn and cotton in the year 1866, on the plantation of the former, situated in Washington county, Mississippi known as the " Swift Water" plantation.

That contract provided, among other things, that Hughes should furnish the means for cultivating and securing the crop, and should advance to Montgomery the sum of $10,000. He was to be reimbursed out of the crop for his outlay in its production, and the residue was to be equally divided between them. The money advanced to Montgomery was to be repaid out of his share of the crop, and after the outlay and advances were paid, each was to control his share as he desired.

Soon after that contract was entered into, Hughes came to Kentucky for the purpose of raising money to enable him to comply with his part of its terms. He exhibited it to the appellants, Isaac W. Smith, Billy Smith, Jacob S. Smith, and John Woodson Hughes, and entered into contracts with them, whereby they agreed to furnish him the following sums of money: Isaac W. Smith, $7,500; Billy Smith, $3,750; Jacob S. Smith, $2,500; and John Woodson Hughes, $5,000, making a total $18,750. Isaac M. Smith also agreed to and did furnish $3,750, but withdrew under a stipulation in the contract permitting him to do so, and received the note of John Wesley Hughes, with John Woodson Hughes as surety, for the amount advanced by him, and no further notice need be taken of him.

The money was advanced, as the contract recites, in consideration of an interest in the contract between Montgomery and John Wesley Hughes, whose whole interest in the contract was estimated at $45,000, and those advan??ing money were to receive an interest in proportion to the money advanced by them respectively.

The greater part of the cotton grown on Swife Wate?? plantation was shipped to and sold by Brannin & Summers?? cotton factors, at New Orleans. In November, 1868, Isaac W. Smith brought this suit in the Louisville chancery court against John Wesley Hughes, John Woodson Hughes, Isaac W. Smith, Billy Smith, A. B. Montgomery, and the firm of Brannin & Summers, and Jacob S. Smith was subsequently made a party. The plaintiff claimed that he and his associates, by their contract with John Wesley Hughes, became part owners of the cotton in proportion to their respective advances, and that Brannin & Summers had wrongfully applied the proceeds of the sale of the cotton to the payment of a debt due them by John Wesley Hughes, and sought to recover his proportion of the price of the cotton. Jacob S. Smith filed an answer, in which he adopted the allegations of the petition, and, making it a cross-petition against Brannin & Summers, sought judgment for his interest also. Billy Smith and John Woodson Hughes did not answer.

Brannin & Summers denied that Isaac W. Smith and his associates in the contract with John Wesley Hughes had any interest in the cotton; but on final...