Welch v. Jenkins

• Decision Date: 21 January 1921
• Citation: 190 Ky. 475,227 S.W. 798
• Parties: WELCH ET AL. v. JENKINS ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 798

190 Ky. 475

WELCH ET AL. v. JENKINS ET AL.

Court of Appeals of Kentucky.

January 21, 1921

Appeal from Circuit Court, Anderson County.

Action by J. W. Jenkins and another against W. M. Welch and others for damages for breach of a contract for the conveyance of real estate. Judgment for the plaintiffs, and defendants appeal. Affirmed.

Denis Dundon, of Paris, and J. E. Plummer, of Covington, for appellants.

L. H Carter, of Lawrenceburg, for appellees.

HURT C.J.

On the 5th day of August, 1918, the appellant W. M. Welch entered into a contract with the appellees J. W. Jenkins and Albert Morris, by the terms of which he agreed to sell to the appellees a farm, near Van Buren, containing 170 acres, a quantity of tobacco sticks, and the right to put a number of cattle at pasturage upon the land, between the date of the contract and the 1st day of January following, in consideration of the sum of $5,000, of which sum $500 was to be and was paid at the date of the contract, $1,662 2/3 was to be paid on January 1, 1919, at which time the appellant was to execute and deliver to the appellees a deed of conveyance for the land and tobacco sticks, and to deliver the possession to them. The remainder of the consideration agreed upon was to be paid by appellees, in three equal annual installments, and a lien retained in the conveyance to secure the payment. The contract was reduced to writing, and executed by the parties on the day it was agreed upon. The appellant Welch refused to carry out and perform the contract, and the appellees instituted this action to recover from him the damages which they claimed to have suffered from appellant's breach of it. About 11 months after the date of the execution of the contract, the appellant Welch was by a judgment of the county court declared to be incompetent to manage his estate, and a committee was appointed for him, and duly qualified, and who was also made a party defendant to the action, and is an appellant here. An answer was filed by Welch, in which he sought to escape liability upon the contract by averring that at the time of its execution he was drunk from the use of intoxicating liquors, and therefore did not comprehend the nature of his acts. This averment was denied by a reply. After the committee was appointed, she filed an answer, averring that when the contract was entered into that appellant Welch was drunk, and was also of unsound mind. These averments were denied by a reply. The answer also denied the allegations of the petition and amended petitions touching the damages claimed to have been suffered. The trial resulted in a verdict of the jury in favor of appellees finding for them the $500 which they had paid upon the purchase price of the land, and the further sum of $2,000 in damages for the breach of the contract, and the court adjudged accordingly. No complaint is made of the instructions to the jury, and it is conceded that the measure of damages prescribed by the instructions is correct. The only issue submitted to the jury was the one touching the mental soundness of appellant, and his ability to make and enter into the contract, and the issue as to the damages claimed. Instructions, other than the ones given by the court, were not offered.

A reversal of the judgment, however, is sought upon three grounds.

First. The court erred in the admission and rejection of testimony.

Second. The verdict is not supported by the evidence.

Third. The damages allowed are excessive.

(a) The alleged errors of the trial court in the admission and rejection of testimony was not made a ground for a new trial in the trial court, nor there relied upon, and for that reason we are precluded from considering such grounds for reversal, here. By a long line of adjudications, it has been consistently and uniformly held that errors of the trial court in the trial of an action at law are not a subject of review upon appeal, unless the error is set out and relied upon in the grounds for a new trial. Otherwise, it is considered that, if a party fails to bring an alleged error to the attention of the trial court in his grounds for a new trial, he has elected to waive the error, if one has been made. Harris v. Southern Ry. Co., 76 S.W. 151, 25 Ky. Law Rep. 560; L. C. & L. R. R. Co. v. Mahoney, 7 Bush, 238; McLain v. Dibble, 13 Bush, 297; Com. v. Williams, 14 Bush, 297; Alexander v. Humber, 86 Ky. 569, 6 S.W. 453; Acme Mills & Elevator Co. v. Rives, 141 Ky. 783, 133 S.W. 784; Hatfield v. Adams, 123 Ky. 428, 96 S.W. 583, 29 Ky. Law Rep. 880; L. & N. R. R. Co. v. Wilkins, 143 Ky. 575, 136 S. W.

1023, Ann. Cas. 1912D, 518; City of Frankfort v. Buttimer, 146 Ky. 818, 143 S.W. 410; L. & N. R. R. Co. v. Com., 154 Ky. 294, 157 S.W. 369; L. & N. R. R. Co. v. Culbertson, 158 Ky. 561, 165 S.W. 681; Slater v. Sherman, 5 Bush, 206; Jones v. Wocher, 90 Ky. 230, 13 S.W. 911; Gooch v. Collins, 156 Ky. 282, 160 S.W. 1038.

(b) There was an entire failure to prove that at the time of the making of the contract appellant Welch was suffering from intoxication, and hence the court was not called upon to instruct the jury upon that subject. The cashier of a neighboring bank was called upon by appellant Welch to prepare the contract between him and appellees, and this witness testifies to having observed nothing which indicated unsoundness of mind in his appearance, conversation, or actions. No witness was offered who proved that at or previous to the making of the contract the appellant Welch had ever shown any indications of unsoundness of mind although one witness testified that he had at certain times suffered from what appeared to have been epileptic convulsions, and two physicians depose that over a year after the making of the contract they examined him, and from his history they were of the opinion that he was...