196 Ky. 54 | Ky. Ct. App. | 1922
Reversing the first case and affirming the second one.
The appellee in the first case, S. P. King, who is appellant in the second one, filed this equity action in the Johnson circuit court against Consolidation Coal Company (the parties to which we will hereafter refer as plaintiff
Appropriate pleadings made the issues and after extensive preparation the cause was submitted to the court' and a judgment rendered declaring the interest of plain-', tiff in the land to be as above stated and. declining to can-.' cel the deed, but the court'on that hearing .granted an issue out of chancery for the purpose of a, jury trial , of the issue as to the value of plaintiff’s interest in the land at the time the deed to defendant was executed. At a subsequent term of the court a trial of that issue was had before a jury and under the instructions of the court it returned a verdict in favor_ of plaintiff for the sum of $500.00, upon which judgment was rendered and defendant ’s motion for a new trial having been overruled it has appealed, which is the first case in the caption; and plaintiff has prosecuted an independent appeal from the judgment refusing to cancel the deed and also from the judgment based on the verdict of the jury, which he says was' ° smaller than the evidence warranted, and his appeal is the second case in the caption. Each of them was tahen upon the same voluminous record and are heard together. Numerous points are discussed by counsel for the respective parties, appellant and appellee, to sustain their re-, spective contentions as to the errors entering into each judgment in so far as it was adverse to them, but because of the conclusion we have reached it will not be necessary to refer to or discuss any of them, except the one which defendant insists defeats the cause of action altogether.
If the averments of the petition of the facts constituting the alleged fraud were sufficient for that purpose, in
Plaintiff, in his deposition in the equity branch of the case, as well as in his orál testimony given before the jury upon the trial of the issue submitted to- it, was asked and answered these questions: ‘ ‘ Q. Did you state ihat Mr. Rice told you that Mr. Mayo wanted it done, you then executed the deed? A. Mr. Rice said Mr. Mayo was having it done. Q. And when he told you that then you executed the deed, did you?, A. Yes, sir. Q. And did so for the reason that you and Mayo had been friends for a long time and he had endorsed your note for $1,400.00? A. Yes, and there was more to it; Mr. Mayo said to me before that, 'Sam, you have worried along a lot with a mortgage against your place; don’t let that bother you, if anything happens to you, I will pay that mortgage off and it won’t cost you anything, you shan’t lose your home. ’ Q. That was before you made the deed to the Consolidation Coal Company? , A. Yes, sir. Q. That was one of the things that induced you to sign it? A. Yes, sir. Q. Was there anything said between you and Rice with regard to payment of the lot, the pay you were to get for it? A. There was nothing said in regard to the payment of it. I asked him who was having this done, who was getting it up and he said Mr. Mayo, Mr. Mayo was having it done. Q. Did you expect Mr. Mayo to settle it up for you? A. Yes, sir. Q. And you expected him to do you right about it? A. Yes, sir. Q. You understood either from reading it (deed) or from Mr. Rice, you were making the deed to the Consolidation Coal Company and not to Mr. Mayo? Yes, but I understood Mr. Mayo was having it done for his benefit, straightening up titles, &e. Q. Who did Rice tell you he was rep
At no time or place did he testify in either trial that he looked to defendant for payment or that he expected it to pay him any sum, but on the contrary it was his intention, expectation and purpose to collect from Mayo, if from any one. Under such circumstances the law will' not enforce payment under an implied contract by one from whom the implied promisee did not expect payment, or from whom he did not intend at the time to collect payment, unless such expectation and intention were superinduced by fraud practiced by the implied promisor, which is the basis of plaintiff’s alleged right to recover in this case. There can be no implied promise in law where the facts necessary to raise such a promise are refuted by the testimony. However, plaintiff did not testify at all, nor did anyone for him, that the representations which he claims were made to him by defendant’s agents at the time the deed was procured were false, i. e., that the deed was not procured through the instigations of M.ayo (who became the owner of plaintiff’s entire tract after the latter sold it and was defendant’s remote warrantor of title to all of it, including the school lot), or at his instance, nor was there any evidence by himself or any other witness that he had ever demanded payment of Mayo, nor even that Mayo had not paid him. It is true he was asked by his attorney if Mayo had paid him, but curiously enough an objection was sustained to the question and the witness was not permitted to answer, but there was no avowal as to what the answer would be. So that, we have a case based upon certain denied averments which the pleader claims constituted fraud forming the basis of his action and with no proof by the litigant having the burden to sustain them. Neither does plaintiff’s cause receive any strength from the two circumstances, that he waited some four of five years and after Mayo’s death to bring his suit, and after defendant, since obtaining the deed, had built the thriving mining town of Van Lear upon and surrounding the land in question whereby its value was tremendously increased. ¿
Wherefore, the judgment on the verdict of the jury against the defendant for $500.00, which is involved in the first case in the caption, is reversed and the one refusing to cancel the deed from which the second appeal was taken is affirmed with directions to dismiss the petition.