25 S.W.2d 37 | Ky. Ct. App. | 1930
Affirming.
The Brown Coal Company seeks by this appeal to reverse a judgment for $1,825.58 recovered against it by the Madisonville Coal Sales Agency. On motion of the Brown Coal Company, this matter was transferred to equity and heard by the chancellor.
To understand the contention of the Brown Coal Company, it is necessary to notice briefly some things apparently foreign to this controversy.
Some years ago one Jesse Dimond organized a corporation known as the "Stevens Coal Co." It had offices in Old Colony Building, Chicago, Ill., in Madisonville, Ky., and perhaps other cities. In the early part of August, 1927, it got into some financial difficulties, and it is contended by the Brown Coal Company that it now owes the Brown Coal Company $5,144, after crediting the $1,825.58 sued on herein upon an account of $6,969.58, which Stevens Coal Company owed the Brown Coal Company *170 for coal sold it on or about August 1, 1927. In May, 1927, or thereabouts, Jesse Dimond organized the Madisonville Coal Sales Agency, and it became quite active in buying and selling coal, and the Brown Coal Company admits the Madisonville Coal Sales Agency sold and delivered to it the coal for which it obtained the judgment herein.
The contention of the Brown Coal Company is that the Madisonville Coal Sales Agency and the Stevens Coal Company are merely different names for the same thing, and in their brief here counsel for the Brown Coal Company argue that feature with able elaboration, then say si non omnes conjuncti (if not all confederated) that the account sued on was by the Madisonville Coal Sales Agency assigned and transferred to the Stevens Coal Company, and that the Brown Coal Company, upon learning of this assignment, had credited the account of the Stevens Coal Company by $1,825.58, and had charged that sum of the Madisonville Coal Sales Agency. The Stevens Coal Company got into serious financial difficulties in August, 1927, and its affairs were placed in the hands of a creditor's committee.
The proof shows that the Madisonville Coal Sales Agency had, in early part of August, 1927, owed the Stevens Coal Company something like $29,000, and the Brown Coal Company contends that, as a part of its efforts to settle this, it had assigned to the Stevens Coal Company this account of $1,825.58 against the Brown Coal Company, and it offered considerable hearsay evidence to that effect.
The Brown Coal Company also had some evidence that the Stevens Coal Company and the Madisonville Coal Sales Agency had offices in the same building in Chicago, and that at one time Jesse Dimond had been quite active in the affairs of both. This proof was by agreement taken before the court, and it is shown that Jesse Dimond was then present in the courtroom.
Counsel for Brown Coal Company now argue they made such a showing that the Madisonville Coal Sales Agency should have called Mr. Dimond to disprove these things. The answer is that the Madisonville Coal Sales Agency had made out a prima facie case and rested. It was under no necessity of calling Dimond, unless the Brown Coal Company had succeeded in showing that the Stevens Coal Company and the Madisonville Coal Sales *171 Agency were one and the same, or that the Madisonville Coal Sales Agency had assigned this account to the Stevens Coal Company. The Brown Coal Company failed in all its efforts to establish these alleged defenses. If Mr. Dimond knew any fact beneficial to the Brown Coal Company, it could have called him as a witness.
The finding of the chancellor was authorized. The judgment is affirmed.
