Yocum v. Foreman
| Decision Date | 25 January 1879 |
| Parties | Yocum v. Foreman. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SPENCER CIRCUIT COURT.
G. G. GILBERT AND BULLOCK & BECKHAM FOR APPELLANT.
J. H. BEAUCHAMP AND CALDWELL & HARWOOD FOR APPELLEE.
CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.
This case has been heretofore in this court, and is an action in equity instituted in the court below by the appellant Yocum against the appellee Foreman for a settlement of the partnership accounts between them as keepers of a hotel in the town of Taylorsville. The written articles of partnership were made the basis of the action, and on the former hearing the judgment was reversed at the instance of the appellee Foreman (then appellant) for the reason that parol evidence had been improperly admitted, contravening the stipulations of the written contract, there being no allegation of either fraud or mistake in its execution. On the return of the case the present appellant being the plaintiff in the action, filed an amended pleading, alleging that by the terms of the contract of partnership the defendant (appellee) was to board him free of charge, and by a mistake of the parties and the draughtsman this stipulation was not inserted in the writing. An issue was made on this pleading, and a judgment rendered in favor of the appellee, by which he was allowed his claim for board, and upon a full settlement of their accounts the appellant was adjudged to be indebted to the appellee in the sum of $113.80. There is much proof in the record of the admissions made by the appellee conducing to show that he was to make no charge against the appellant for board; while on the side of the appellee it appears that the contract was reduced to writing by an attorney, at the instance of both parties, and he has no recollection of any such agreement, and could not well have omitted this important feature of what is now claimed by the appellant to have been the contract between them. Besides, the appellant, in his original petition, alleges that the writing declared on is the contract between them, and makes no effort to reform the writing until the judgment was reversed on the former appeal.
It is true these parties had been partners for many years, and no charge for board had been made by appellee; still, this may be accounted for from the fact that no settlement had been made of their partnership accounts, and the length of time permitted to elapse, before any effort at a settlement, has caused the chancellor much difficulty in making an equitable adjustment of their accounts.
After the issue had been fully made, and the cause ready for hearing, the appellant offered to plead the statute of limitations to a portion of the claim for board, and the court refused to permit this pleading to be filed. This was not an abuse of discretion, and particularly when the appellee, by his answer, setting up his claim for board, had admitted the validity of payments by the appellant of the individual indebtedness of the appellee, no doubt with a view of having a just and fair settlement, and to which he might have pleaded the statute. Both parties, after the offer by appellant to file this amended pleading, attempted to rely on the statute, and the chancellor very properly denied them this right.
The weight of the evidence may indicate the existence of a verbal contract between the parties prior to the execution of the written agreement, showing that no charge was to be made for board; still, when the contract is reduced to writing, and is treated by all the parties as the contract for nearly eleven years, without any discovery of a mistake as to its terms, proof only of the admissions of one of the parties, with other proof contradicting its terms, can not be held sufficient to authorize the chancellor in holding that the mistake has been clearly established. The well-recognized rule is, that clear and strong proof of the mistake must be made before a court of equity will grant relief; and the chancellor acted properly in refusing to reform the contract between the parties, and the settlement of their accounts made in the court below should not be disturbed.
The important question in this case arises on the motion made by the appellee to quash the sale of the tavern property made under the erroneous judgment subsequently reversed by this court. When the case was remanded and another settlement had in accordance with the mandate and opinion of this court, the appellee, instead of being indebted to the appellant in the sum of $2,000, obtained a judgment against the latter for the sum of $113.80. The appellant was then notified that a motion would be made to quash the sale, of appellee's property, made by the sheriff under the first judgment, and on the hearing of this motion the sale was quashed and restitution ordered. After notice of this motion the sheriff conveyed the property to the appellant, and the latter now maintains that, although the plaintiff in the erroneous judgment and the purchaser under it of appellee's property, he is entitled to the benefit of his purchase notwithstanding the reversal. The general rule on the subject of sales under execution is that, when the officer, in whose hands the execution is placed, can justify his acts under it, the purchaser of the property sold by virtue of the execution-sale acquires a valid title as against the defendant; and in regard to judicial sales many authorities might be cited recognizing the doctrine, that the reversal of a judgment, by virtue of or under which the property was sold, does not affect the title of the purchaser, although he is the plaintiff in the judgment.
It must be conceded that many of the modern authorities...
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