Citation Numbers: 206 Ky. 401
Judges: Sandidge
Filed Date: 12/19/1924
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Affirming.
Appellant, C. M. Jones, prosecutes an appeal from a judgment against him for $10,359.52 rendered in the Mason circuit court in favor of the Bank of Dearborn, of Dearborn, Missouri. By its petition the bank stated that in December, 1919, it made a contract with appellant, C. M. Jones, by which it agreed to advance to him and R. L. Crisp money with which to pay for tobacco purchased by them in Platt county, Missouri; that the arrangement was that the tobacco would be purchased by one A. B. Dean, as agent for Jones and Crisp; that Dean in making advancements -on tobacco purchased for them would check on a fund on deposit in the bank which was the proceeds of a $7,500.00 note executed to it by Jones; that as the tobacco so purchased was delivered, Dean would load it on cars, consign it to them at Maysville, Kentucky, take the bill of lading for same and then through appellee bank draw on them for an amount sufficient to pay the balance due on the tobacco; that it would then advance the amount of the draft, he to use' same in paying the balance due on the tobacco, and that the drafts with bills of lading attached would be paid by them upon presentation at their bank in Maysville, Kentucky. It was pleaded that under that arrangement Dean purchased a great deal of tobacco for Jones and Crisp and shipped same to them and drew on them for the money with which to pay for same; that the amount of the drafts was advanced by the bank to Dean and was used by him to pay for the tobacco, and that upon presentation for payment some of them were not paid by
While the petition charged that appellant Jones made the contract with appellee bank, acting for himself and Crisp, and sought to make Crisp answerable to appellee, there was a failure of proof as to Crisp being interested with Jones in the purchase of the tobacco, and at the close of the testimony the trial court peremptorily instructed the jury to find for Crisp, but submitted the issues made by the pleadings and proof between appellant Jones and the appellee bank. The first instruction had reference to an amount -admitted by appellant to be due the bank. Appellant complains of instruction No. 2, which reads:
‘‘Instruction No. 2. The court further instructs the jury that if they believe from the evidence that on or about the 5th day of December, 1919, the defendant, C. M. Jones, entered into an agreement with plaintiff bank whereby said plaintiff bank agreed to and did make advances of money to the account of said Jones for the payment of purchases of tobacco bought by said Jones and his agent, A. B. Dean, and that the said Jones represented to plaintiff that his said agent, Dean, was authorized to make said purchases and to draw checks and drafts upon the account of said Jones in payment of such purchases, and that the said defendant, Jones, agreed to pay the plaintiff the amounts so advanced, then the jury will find for plaintiff in addition to the amount indicated in instruction No. 1 in the sum of $1,500.00 with interest from the 5th day of December, 1919, until paid, and in the further sum of $7,937.55 with interest thereon from the 8th day of January, 1920, until paid, and in the further sum of $1,672.30 with interest thereon from the 13th day of January, 1920, until paid, and in the further sum of $4.60, the amount of protest fees, subject, however, to credits in favor of the defendant, Jones, of $4,829.00 as of March 16, 1920, and $2,609.30 as of February 28, 1920.”
He insists that by the instruction complained of the court assumed and the jury were in effect instructed
Appellant contends that inasmuch as the petition charged that Jones in making the arrangement with the bank was acting for himself and Crisp and sought to
In appellant’s brief mention is made of alleged incompetent evidence admitted against him, but counsel does not point out or particularize the evidence objected to and admitted against him which was incompetent. Our reading of the record has not disclosed it to us.
His case was tried by a jury of his home county, the contest being one between him and a foreign corporation. The jury heard the evidence, was properly instructed, and found against appellant. Our consideration of the record discloses that the evidence greatly preponderates in favor of the verdict found by the jury. Letters and telegrams from appellant to Dean introduced in evidence establish beyond all question that the bank’s version of this controversy is correct.
The judgment is affirmed.