Taylor v. Mullins

• Citation: 151 Ky. 597,152 S.W. 774
• Parties: TAYLOR v. MULLINS.
• Decision Date: 17 January 1913
• Court: Court of Appeals of Kentucky

152 S.W. 774

151 Ky. 597

TAYLOR v. MULLINS.

Court of Appeals of Kentucky.

January 17, 1913

Appeal from Circuit court, Pike County.

Action by Noah Mullins against B. D. Taylor, in which defendant counterclaimed. From a judgment for plaintiff, defendant appeals. Affirmed.

Childers & Childers, of Pikeville, for appellant.

Stratton & Stephenson, of Pikeville, for appellee.

MILLER J,

Appellee Mullins, having contracted with the Yellow Poplar Lumber company to cut, saw, haul to, and place in Russell's fork of Sandy river the timber on the company's Camp Branch Tract in Dickerson county, Va., sublet the contract for hauling the logs, in May, 1909, to appellant, Taylor, and his partner, Belcher, for two cents per cube. Mullins had himself done quite a good deal of the hauling at the time he sublet that portion of the contract to Taylor & Belcher, and they in order to equip themselves for the work, bought from Mullins five mules for which they gave their note for $900. They also bought Mullins' logging outfit. The logs were to be measured on the skidway before they were trucked, and Taylor & Belcher were to receive the same measurements that Mullins received in his settlement with the lumber company. Taylor & Belcher ran an account for supplies at Mullins' store while they were hauling the logs. Taylor and Belcher dissolved their partnership in July, by Taylor buying Belcher's interest therein. At this time the store account amounted to about $800. In August Taylor became dissatisfied with his contract, and sold his interest therein to Mullins for $600; Taylor to pay his own outstanding debts. By this time the store account had grown to about $1,200. As a part of the trade Mullins took the mules back, and surrendered to Taylor the $900 note which represented the purchase money for the mules. Taylor, however, was unable to pay all of his outstanding accounts, and among, these unpaid accounts was one for $43.65 due R. T. Elswick & Co. for merchandise. These goods had been purchased by Taylor &amp Belcher, who got the full benefit of the purchase, though the goods were charged to Mullins. Elswick & Co. sued Mullins for the $43.65, and obtained a judgment therefor; whereupon Mullins brought this action against Taylor in the Pikeville police court to recover the $43.65. Taylor answered admitting his firm had received the merchandise from Elswick & Co. but set up a counterclaim for $1,230 for loss and damage under his logging contract with Mullins above referred to. The substance of the counterclaim is: (1) That instead of owing Mullins $800 upon the store account at the time Belcher sold out to Taylor they really owed Mullins only $500 on that account, and that all amounts over and above $500 were false charges; (2) that, although they surrendered the mules and received their note for $900, Mullins nevertheless charged them with the $900 in the final settlement, thereby receiving pay for the mules, although they had been returned to him; and (3) that Mullins represented to them that the timber only measured 42 1/2 cubes to the log, on an average, and settled with them on that basis, while said timber, in reality, averaged 50 cubes to the log," and the plaintiff wrongfully and fraudulently represented to them that said timber only contained 42 1/2 cubes to the log, for the purpose of cheating them out of 15 cents on each log hauled, and did thereby cheat and wrong them out of 15 cents on each log they so hauled, amounting in all to 2,200 logs and thereby cheated them out of $330, which amount is just, due, and owing to the defendants by plaintiff." The counterclaim prays judgment for $1,230, which evidently represents the $900 for the mules, and $330 as the loss on the 2,200 logs at 15 cents per log. The prayer of the counterclaim seems to ignore the claim...