167 Ky. 736 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
The appellee, William Littrell, by his petition as amended, sued the appellant, David E. Castleman, in the Kenton circuit court, and sought to recover of him the sum of $700.00, with interest thereon at three per. centum per annum, from November 22nd, 1912, which he .alleged that appellant was indebted to him and refused to pay.
The appellant, for his defense, denied that he owed the appellee the amount sued for, or any more than the sum of $156.75, which he alleged that he had tendered to appellee, who had refused to receive it. He admitted having received into his hands the sum of $1,000.00, which was the money of appellee, but which he claimed had been paid to him, and that he received and held the same as a pledge to secure him, in part, as being the surety of appellee upon a bail bond in the sum of $5,000.00, and to secure, in part, the payment of a promissory note for the sum of $600.00, which appellee owed to him. He also held a mortgage upon real estate owned by appellee to further secure him. as his bondsman, aforesaid, and to secure the payment of the note. The consideration for the $600.00 note was the undertaking of appellant, as an attorney-at-law, to conduct the defense of appellee in the Boone circuit court upon an indictment for mur
The appellee denied that appellant received or held the $1,000.00 as a pledge or to secure the payment of the $600.00 or to hold appellant harmless as his surety, but claimed that appellant had received the $1,000.00 for him as an accommodation to him, and under a promise to pay it to him on the next day, and then refused to do so. He denied that the consideration of the note of $600.00 was the defense of the murder charge only, but claimed that the undertaking of appellant to defend him from an anticipated charge of carrying concealed deadly
The trial of the case before the court and a jury resulted in a verdict by the jury in favor of appellee against appellant for the sum of $664.25, with interest thereon from November 22nd, 1912, and his costs. The amount of the $1,000.00 which the jury found that appellant was entitled to retain was the sum of $335.75.
The appellant’s motion for a new trial being overruled, he has appealed to this court.
No objection was made to the instructions given by either side, and no complaint is made of the instructions upon this appeal.
The grounds relied upon for a reversal of the judgment are:
First. That the verdict is flagrantly against the evidence.
Second. Accident and surprise, which ordinary prudence could not have guarded against — in the finding of the one thousand dollar written order to J. R. Morris only after the trial.
As to the first ground relied upon, it may be said that the evidence was as conflicting as possibly it could be. The testimony of appellant and appellee was all that was heard as to many things, which one stated occurred and the other positively denied. Each one’s contention, as to the truth of the facts upon which his
The counsel for appellant insists, in his brief that the appellant was taken by surprise upon the trial by the testimony of the appellee, to the effect that he did not execute a written order to Morris to pay over to appellant the $1,000.00 in controversy. It does not appear how this testimony, however surprising it may have been to appellant, could have in any way prejudiced his cause. There was no issue made as to whether or not appellant received this money from Morris. He stated that he received it; Morris states that he paid it to bim upon the- written order of appellee; and appellee stated that he verbally directed Morris to pay it over to appellant. It was wholly immaterial as to whether appellant received it upon a written order or verbal order. In testifying in chief appellant said that he supposed Morris still retained the order. He had
It is therefore ordered that tbe judgment appealed from be affirmed.