Vance v. Dobson

• Decision Date: 21 November 1924
• Citation: 205 Ky. 640,266 S.W. 368
• Parties: VANCE v. DOBSON ET AL.
• Court: Kentucky Court of Appeals

266 S.W. 368

205 Ky. 640

VANCE v. DOBSON ET AL.

Court of Appeals of Kentucky.

November 21, 1924

Appeal from Circuit Court, Green County.

Action by E. G. Dobson and others against L. M. Vance. Judgment for plaintiffs, and defendant appeals. Affirmed.

Noggle & Graham, of Greensburg, for appellant.

Jeff Henry, of Greensburg, for appellees.

THOMAS J.

The Greensburg graded common school white district No. 1, by itself, its treasurer, and its board of trustees, brought this action in the Green circuit court against appellant and defendant below, L. M. Vance, to recover from him the amount of his written subscription of $500, which he executed and delivered on February 28, 1921, agreeing and promising to pay the district that sum for the construction of a new schoolhouse and the purchasing of a suitable site therefor at such times and in such installments as the board of trustees should call for. It was alleged that the schoolhouse had been completed, and that defendant had been called upon to make payment of his entire subscription, and that he refused to do so. He admitted all those facts in his answer but in a second paragraph attempted to plead certain supposed material conditions upon which his subscription was made, and which induced him to do so, and that those conditions had been violated. As a precautionary measure he also averred that the conditions had been omitted from the written subscription executed by him through mutual mistake; but that averment was not necessary in order to allow evidence of the fact if it was true that there were material conditions, and that they had not been complied with, since in that case the eventual taking effect of that writing as an obligatory paper never occurred, and the authorities are quite uniform in holding that proof of such facts does not violate the rule forbidding oral testimony to contradict the terms of a writing. The court sustained plaintiffs' demurrer filed to the answer, and defendant declining to plead further, judgment was rendered against him, and he appeals.

The substance of the answer containing the defense, and to which the demurrer was sustained, was that defendant had been for a long time and was then the chairman of the board of trustees of the graded school, and that the trustees, including himself, had discussed the proposition of raising money to construct a more modern and very much needed school building on grounds to be thereafter purchased for the purpose, and they concluded to have a public meeting at one of the churches in Greensburg at which a drive to obtain subscriptions from the patrons of the school would be inaugurated. Defendant and one Durham voluntarily assumed to act as a committee to select a speaker to address the audience at the church, and to set forth the intentions and purposes of the board of trustees, and to use such persuasive arguments as would be calculated to induce subscriptions that defendant and Durham selected one Woodson Lewis, who was the largest taxpayer in the district, to make the address at the meeting, and instructed him as to the substance of what he should say in that address, and that he did make the speech...