Wilson v. Carrollton Leaf Tobacco Warehouse Co. ( 1919 )

Opinion of the Court by

William Rogers Clay, Commissioner

Reversing.

On October 18,1910, J. W. Wilson and the Carrollton Leaf Tobacco Warehouse Company entered, into a written contract, by the terms of which Wilson agreed to sell all the tobacco he bought or controlled during the season of 1910-1911 over the floor of the warehouse company, and the warehouse company agreed to pay for said tobacco so bought and delivered. The contract further provided that the warehouse company was to have full fees for the selling of the tobacco, and that settlements were to be made at the expiration of each week’s sales, and that Wilson was to have all profits and to pay all the losses to the warehouse company,

On March 4, 1912, the warehouse company brought suit to recover the sum of $1,065.92 alleged to be due under the contract. While the petition was in ordinary, the action seems to have been entered on the equity docket. Thereafter, the pleadings in the case were lost and the case was referred to the master commissioner for the purpose of supplying the lost papers. On February 1, 1915,.plaintiff, together with James F. Jett, its trustee, filed an amended petition making Jett, trustee, a party plaintiff. With the amended petition, an itemized statement of the account between plaintiff and defendant was filed, showing a balance due plaintiff of $994.61, for which judgment was asked. At the April term, 1915, the defendant filed an answer, set-off and counterclaim in four paragraphs. In the first paragraph, he denied that the plaintiff had sold its assets to James F. Jett, as trustee. In the second paragraph, he pleaded that for a period of six months during the season of 1910-1911 he worked for and assisted plaintiff in making sales and securing good prices for tobacco, and that his said services were performed at the special instance and request of plaintiff and were reasonably worth the sum of $165.00 per month, which plaintiff promised to pay. In paragraph three, he pleaded that at the special instance and request of plaintiff he employed men to assist him in the work, and paid them the sum of $75.00, which sum plaintiff agreed and promised to pay to the defendant. In paragraph four, he pleaded that he delivered to plaintiff nine thousand pounds of tobacco at the value of $1,080.00, which plaintiff never accounted for. ' At the August term, 1915, plaintiff demurred to each paragraph of the answer, set-off and counterclaim, and the demurrer was overruled. At the same term, the defendant moved to transfer the action to the common law docket. This motion was subsequently overruled and an exception saved by the defendant. Upon completion of the issues, the motion was renewed and again overruled, to which an exception was saved. Later on the case was referred to the master commissioner over the objection of the defendant. The commissioner filed a report rejecting the items set up in the answer, set-off and counterclaim of the defendant, and finding that the defendant was indebted to plaintiff in the sum of $994.61. This report was subsequently confirmed and judgment entered accordingly. The defendant appeals. .

1. Pleading — Estoppel—Reply—Sufficiency.—In an action on an account, tie allegations of the reply held insufficient to constitute an estoppel against certain claims set up in the answer, counterclaim and set-off. 2. Account — Action On — Pleading—Answer and Counterclaim. — Inconsistent Position. — A party cannot admit the correctness of an account and at the same time insist, hy way of counterclaim, that certain credits were omitted which, would necessarily render the account incorrect.

The refusal of the trial court to transfer the case to the common law docket is the chief ground urged for a reversal. As justifying the action of the court, it is argued that the suit involved mutual and complicated accounts, and was therefore properly triable in equity. As a matter of fact, however, not a single item of the lengthy account filed with the petition was contested. On the contrary, the items embraced in the account were admitted by defendant’s failure to deny them. With these items eliminated, there was left no issue of equitable cognizance. There remained only three distinctly legal issues which the defendant had the constitutional right to have tried, by a jury, provided the motion to transfer was seasonably made. Carder, et al. v. Weisengburg, 95 Ky. 135, 23 S. W. 964. Of this there can be no doubt, because the motion was made within a reasonable time after the filing of the pleading tendering the issues. Lewis v. Helton, 144 Ky. 595, 139 S. W. 772. It follows that the trial court should have transferred the case to the conn mon law docket,

-Judgment reversed anvd cause remanded for proceedings consistent with this opinion.