201 Ky. 770 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
This equity action was filed in the Jefferson circuit court by appellant and plaintiff below, S. T. Castleman, against appellees and defendants below, Continental Car Company, Continental Car Company of America, and others, in which plaintiff sought the recovery of a judgment against defendant, Continental Car Company, for the sum of $39,000.00, and the -assertion and enforcement of a lien against its manufacturing plant in the city of Louisville, which lien was claimed under the provisions of article III of chapter 79 of the statutes, it being alleged that defendant, Continental Car Company; after the performance of the services sued for, sold its plant to the ap
Appropriate pleadings made the issues and extensive proof by depositions was taken, but the chancellor on his own motion transferred the issue as to the existence of the contract sued on to one of the common law branches of the Jefferson circuit court for the trial of that issue by a jury. Plaintiff objected to that order, but the objection was overruled and when the cause came on for trial in the court to which the issue of fact was transferred plaintiff moved that court to transfer the cause back to the equity tribunal, which motion was likewise overruled, and the jury after hearing extensive evidence, the greater portion of which was oral, returned its verdict finding that no such contract was made and that verdict was certified to the equity branch of the court from which it was transferred, and that court overruled plaintiff’s motion to disregard the verdict of the jury and to determine the issue from the testimony taken while the cause was pend
It is first seriously insisted that the court erred to the prejudice of plaintiff in ordering the trial of the corn tested issue of fact before a jury, but we entertain no doubt of the propriety of that ruling. The issue to be tried was essentially a legal one, triable by a jury, and the equitable right to the lien asserted depended entirely upon the decision of that issue, since if there was no contract there could be no lien. Without the attempted assertion of the lien the ease was purely a common law one possessing no equitable features and triable exclusively by a jury, and subsection 3 of section 10 of the Civil Code authorized the court to make the transfer on its own motion. Supporting authorities will be found in note 2 to section 12 of the Civil Code, and a late ease sustaining the practice is that of Scott v. Kirtley, 166 Ky. 727. We deem it unnecessary to further elaborate the question, since we are convinced that no error was committed in ordering the transfer. That being true, and the issue being a purely legal one, the verdict of the jury will be treated as one in other ordinary jury trials. Hill v. Phillips, 87 Ky. 169; Morawick v. Martineck, 128 Ky. 155.
The plaintiff, therefore, made motion for a new trial in the common law branch of the court where the jury trial was had, as was his duty to do, in which he asked that the verdict be set aside upon numerous grounds therein set out. The motion was overruled, and on this appeal the only questions for determination are those raised by it.
The evidence discloses without contradiction that plaintiff first called the attention of defendant to the fact as well as the time of the letting of the bids by the government and carried with him to its plant some blue prints containing the required specifications. Prom that time till late in the night of June 8, 1917, he was actively engaged in writing letters to firms and companies throughout the country to obtain prices on material necessary for the construction of the truck bodies in order to obtain the necessary data upon which the proposed submitted bids could be estimated. So active was he, both at the plant of defendant and at his own office in the city of Louisville, where he dictated most of the letters and other documents to his stenographer, that defendants’ witnesses claimed that he was unduly officious. On the
Plaintiff, in an amended petition, pleaded that in estimating’the submitted bid there was included in it 50% of the total cost price for the manufacture of the beds and there was added thereto 10% upon that sum for his commission, the total of which aggregated the price contained in the submitted and finally accepted bid to the government authorities. Those allegations were specifically denied in a reply thereto, and plaintiff in his testimony supported them, but they were denied by the president of defendant and, perhaps, one or two other witnesses who testified in its behalf. On the trial before the jury plaintiff sought to obtain from the president of defendant and others of its witnesses the estimates of actual cost admittedly made by them and upon which the submitted bid was formulated, but each of them, while admitting they had possessed such written estimates while drafting the bid, claimed that they were lost and could not be found. Plaintiff, however, introduced a letter addressed to defendant before the making of the bid which was written by Carpenter & Company, of Chicago, Illinois, who were extensive dealers in canvas and material out of which the
In the cross-examination of defendant’s president, plaintiff’s counsel asked him if his company, the defendant, in ,October, 1918, did not submit another bid to the government to construct and furnish to it another installment of the exact duplicate of the same bodies that it constructed under the first contract, at the price of $144.20 each and for which it procured $195.00 each under its first employment. An objection to that question was sustained and the avowal contained an affirmative answer. (Transcript of evidence, page 201.) Plaintiff then offered to prove that the material, as well as labor, used in the construction of the bodies was higher in 1918, at the time of the submission of the second bid proposed to be proven, than they were in 1917, when the contract was obtained; but that was also refused, to which he excepted. We are convinced that such offered testimony was competent, not only for the purpose of contradicting the theory of defendant as to the extent of its profits calculated in the submitted price of $195.00 per bed, but also for the further purpose that the profit on that price -was sufficient to justify the payment of plaintiff’s claimed commission and still leave a handsome profit for defendant; for it must be remembered that the testimony as to small percentage of profit estimated in the bid could fill no office in the case except to sustain the denial of the amended petition and to bolster up the contention of defendant that it would be an absurd and preposterous proposition to pay plaintiff the commission which he claims in the face of the fact that it was realizing a profit of only a small percentage. The admission of the testimony of plaintiff’s president of the estimated percentage of profit to his company in the submitted bid could have filled no office in the case except to sustain the contention and theory that no one of business prudence would agree to pay plaintiff a com
Plaintiff furthermore complains that the court erred in permitting defendant to prove by the president of the Kentucky Wagon Manufacturing Company (R. V. Board), that plaintiff mad© a proposition to that company similar to the one which the defendant in this case- contends was made to it by him and upon which his services were enlisted, i. e., that his compensation was to be realized only from the patent attachment on the beds, if the government should conclude to accept them, and not to be estimated on any part of the contract price of construction. We do not think that testimony was competent. Stoner v. Nall, 149 Ky. 124. But the error in admitting it cannot be considered on this appeal as a ground for disturbing the judgment for the reason that no objection was made to its introduction as is shown on pages 259 and 260 of the transcript of evidence.
Another ground urged for a reversal is that defendants employed a detective agency to assist in the selection of the jury to try the case, and that one Hager, the head of that agency, not only assisted in the selection of the jury but attended at the trial and conversed with one of the jurors during the trial. It is admitted by him that he did make inquiry of one of the jurors as to whether the case had been- decided by the jury, but, upon being informed that it was not, ceased his conversation and made no further reference to the case. The facts disclosed by the record concerning this matter are not sufficient to justify the positive conclusion that any improper conduct was engaged in by Hager or any one connected,with his detective agency, though the evidence proves some opportunities therefor. However, it is proper to state that there is absolutely no fact appearing in the record rejnotely or -otherwise connecting defendant’s counsel with
Other errors are relied on in the motion for a new trial, each of which we regard as wholly immaterial, but the ones in rejecting the testimony offered by plaintiff and in admitting that offered by defendant, hereinbefore referred to and discussed, are, according to our view sufficiently prejudicial to plaintiff’s rights as to authorize a new trial.
Wherefore, the judgment is reversed with directions to grant plaintiff a new trial and for proceedings consistent herewith.