Wisdom v. Nichols & Shepherd Co.

• Decision Date: 26 October 1906
• Citation: 139 Ky. 506,97 S.W. 18
• Parties: WISDOM ET AL. v. NICHOLS & SHEPHERD CO.
• Court: Kentucky Court of Appeals

97 S.W. 18

139 Ky. 506

WISDOM ET AL. v. NICHOLS & SHEPHERD CO.

Court of Appeals of Kentucky.

October 26, 1906

Appeal from Circuit Court, Todd County.

"Not to be officially reported."

Action by the Nichols & Shepherd Company against W. M. Wisdom and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Perkins & Trimble, for appellants.

Petrie & Standard, for appellee.

CARROLL C.

On June 24, 1902, the appellee sold to appellants a threshing machine and wind stacker. In an action in equity on the notes executed for the purchase price, and to foreclose the mortgage lien to secure them, appellants relied for defense on a verbal contract and warranty alleged to have been made when the machine was purchased, which was, in substance, that the machine was first-class, and would do better work, and more of it, than any other machine. Appellee relied on a written contract executed by appellants, averring that it contained the entire contract between the parties. This written contract, appellants contend, was obtained by fraud and therefore not binding on them. On motion of appellants, a number of issues out of chancery were submitted to a jury. The questions submitted were answered favorably to appellants, but the court ignored the findings of the jury and rendered a judgment for appellee.

The first question to be determined is, were the findings of the jury binding upon the court, and, if not so considered should the court have resubmitted the issue to another jury.

One of the principal questions submitted to the jury was whether or not the written contract relied on by appellee was obtained by fraud. Upon the answer to this depended the other questions. Section 12 of the Civil Code of Practice provides that, "in an equitable action, properly commenced as such, either party may by motion have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial." This action was properly brought in equity, and it was entirely within the sound discretion of the court whether or not it would submit the issues of fact involved to a jury; and when the court called to its aid a jury for the purpose of getting their opinion upon the questions of fact submitted, the findings of the jury were not conclusive upon the court. It had a right to adopt or disregard them, as appeared right in its discretion.

In McElwain v. Russell, 12 S.W. 777, 11 Ky. Law Rep. 649, an action brought to settle an estate and cancel a deed alleged to have been procured by fraud and undue influence, the court submitted the issues of fact made by the pleadings to a jury. In considering the effect to which the verdict was entitled, this court said: "As reference to a jury in equity cases is merely for the purpose of aiding the chancellor in determining the issues of fact, and is made or not in his discretion, the finding is not conclusive."

In Hill v. Phillips, 87 Ky. 169, 7 S.W. 917, the court said: "In a case of purely equitable cognizance, the chancellor has the discretionary power to direct an issue of fact to be tried by a jury, and their verdict is, generally speaking, treated by the chancellor as conclusive between the parties; but it is not necessarily conclusive, for the reason that the chancellor simply seeks the advice of the jury to aid him in coming to a correct conclusion on a mooted question of fact." Ford v. Ellis, 56 S.W. 512, 21 Ky. Law Rep. 1837; Reese v. Youtsey, 69 S.W. 708, 24 Ky. Law Rep. 603; Jones v. Wood, 7 S. W. 45, 24 Ky. Law Rep. 840.

A different rule obtains where a distinct legal issue is made in an equitable action, as, under section 12, supra, either party has the right to a jury trial concerning such issue; and the finding of a jury when an issue of this character is submitted has the same effect as the verdict of a jury in ordinary jury trials, and is conclusive between the parties, unless the court, upon motion for a new trial, is satisfied that it is palpably against the weight of evidence. Hill v. Phillips, 87 Ky. 169, 7 S.W. 917; Bush v. Eastern Kentucky Timber Co., 90 S.W. 547, 28 Ky. Law Rep. 773; Baxter v. Knox, 31 S.W. 284, 17 Ky. Law Rep. 489. In cases of this character, where an issue of equitable cognizance is submitted to a jury in aid of the chancellor, and the findings of the jury are disregarded by him, the judgment of the chancellor will be considered by this court without reference to the verdict of the jury, and the same effect will be given to it as if there had been no finding of facts. As frequently held, this court will consider the evidence, and determine the case according to the truth of the matter as it shall appear to the court from the whole record; and where the proof is conflicting on the whole case, or the mind is left in doubt as to the truth, the chancellor's judgment will not be disturbed. McCampbell v. McCampbell, 103 Ky. 745, 46 S.W. 18; Campbell v. Trosper, 108 Ky. 602, 57 S.W. 245.

It appears from the evidence that appellants were intelligent and prosperous farmers, and that an agent of appellee made several efforts to induce them to buy a machine, representing that it was the best machine on earth, and guarantied to do more work and better work than any other machine. Finally, he succeeded in persuading them to buy his machine, and they went to the city of Elkton, as testified to by appellant Lamb, for the purpose of closing the trade, when the written contract was executed in duplicate--one copy being retained by the agent and another delivered to appellants. It does not appear that the contract before or at the time it was signed was either read by or to them, although they had ample opportunity to read it, and no unfair, improper, or fraudulent means were resorted to in an effort to induce them to sign it, nor were they dissuaded from reading it by any trick, artifice, or fraud. The contract provided that "Each machine is well made, of good material, and with proper management is capable of doing more and better work than any other machine made of like size and proportions, working under the same conditions and on the same job"; and "that if within five days from its first use it shall fail to fill this warranty, written notice shall be immediately given by the purchaser to Nichols & Shepherd Company, at Battle Creek, Michigan, by registered letter, and a written notice also to the local dealer...