Traylor Bros., Inc. v. Pound

• Decision Date: 24 June 1960
• Citation: 338 S.W.2d 687
• Parties: TRAYLOR BROTHERS, INC., Appellants, v. J. T. POUND et al., d/b/a Pound Tire Supply, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 687

338 S.W.2d 687

TRAYLOR BROTHERS, INC., Appellants, v. J. T. POUND et al., d/b/a Pound Tire Supply, Appellees.

Court of Appeals of Kentucky.

June 24, 1960.

Rehearing Denied Oct. 21, 1960.

Michael A. Rowady, Winchester, John Early, Evansville, Ind., for appellants.

White & McCann, Winchester, for appellees.

STANLEY, Commissioner.

The complaint filed by J. T. and J. C. Pound, d/b/a Pound Tire Supply Company, against Traylor Brothers, Inc., states that in September, 1955, the plaintiffs sold two large tires for use on heavy construction equipment that were of the reasonable value of $2,510 and delivered them to the defendant; that the account had been credited by $1,255, the value of one tire; that the balance was due and payable and the defendants had refused to pay it. See Form 4 Complaint for Goods Sold and Delivered, Appendix to Civil Rules. Upon the issues being joined, the case was tried by the court without a jury, and judgment was rendered for the plaintiffs for the sum prayed.

At the time of the transaction, Traylor was engaged in constructing a section of the Louisville-Elizabethtown turnpike. The Codell Construction Company was building an adjoining section. Codell leased certain machinery to Traylor for a brief period, among which was an earth removing machine which had bad tires. The plaintiff J. T. Pound testified that someone called by telephone and told him that Calloway, Codell's superintendent, wanted him to send the tires to the turnpike construction for Traylor Brothers for some equipment which Codell had rented to Traylor. This was substantiated by later evidence. Pound admitted he had no contract with Traylor for this transaction, although he had previously sold Traylor 'a lot of stuff.' It was definitely proved that Traylor's superintendent had requested Codell's superintendent, Calloway, to get these tires, and he had ordered them from Pound. The tires had been placed on the leased machine. There is no evidence whatever that Traylor's agent ordered the tires or that they were delivered to Traylor except to be placed on Codell's equipment. Thus, the plaintiffs failed to prove the cause of action alleged. Proof without pleading will not sustain a cause of action. Humbert v. Heyburn, 240 Ky. 405, 42 S.W.2d 538. The plaintiff must have proved his cause of action as pleaded. Grand Lodge, Brotherhood of Railroad Trainmen v. Bash, 256 Ky. 511, 76 S.W.2d 604.

On the appeal plaintiffs rely on the terms of the lease of the equipment by Codell to Traylor and, as well, on an alleged agreement by representatives of Codell and Traylor in the settlement of their contract relations that each would pay for one of the tires involved in this litigation. The defendant objected to the introduction of evidence concerning such an agreement, but the objection was overruled. In rebuttal, the plaintiff's representative at the conference denied there was such an agreement.

In this jurisdiction a party beneficiary of a contract may look to the promisor directly and sue him in his own name to enforce a promise made for plaintiff's benefit, even though he is a stranger, it being sufficient that...