130 Ky. 486 | Ky. Ct. App. | 1908
Reversing.
S. A. Davis rented of M)rs. M. A. Gott her farm in Butler for the year 1906, agreeing to pay her therefor as rent $600, for* which, he executed to her a note due December 15, 1906. He raised on the farm a large crop of corn, which he sold before it was gathered to Robert Crump, who advanced‘him on the purchase ■$654.30. After this had been done, a large'part of the corn was washed away or injured by a flood, and the trade with Crump was rescinded by mutual consent, Davis executing, to Crump a note for- $654.30 on December 13, 1906, and a mortgage on 51)0 barrels of corn, which was then in the crib; it being agreed between Davis and. Crumfli that he would' sell Crump enough of the corn which he had at 40 cents a bushel to pay the debt. Mrs. Gott’s rent- note not having been paid, she on January 8, 1907, brought suit against him -on the note in the Butler circuit, court, and took out an attachment which was levied on the corn. On January 15th Davis paid her $400 on the note, and on February 7th judgment was entered by default in her favor against Davis for the balance of the debt and cost. The attachment was sustained, and the sheriff of Butler county was- ordered to sell the property attached, or 'enough of it to pay the debt and the cost, and he was allowed in the judgment $7.50 for his services in making the sale. No sale was made of the attached property under the judgment, but on March 4th an execution was issued on the judgment which was placed in the hands of the sheriff and levied by him on the corn, which was advertised for sale under the execution on March
It is insisted for the sheriff that he is not liable because no written order was given him to stay proceedings on the execution as provided in section 1713, Ky. St. 1903. “It shall be no defense to an action or motion against a collecting officer for failure of duty of himself or deputy that the plaintiff directed
It is insisted for Mirs. Gott that she is not liable, as she had nothing to do with the transaction. It appears from the uncontradicted proof that Davis went to see Mrs. Gott, and that she told him to pay her lawyer and settle with him. He then telephoned to the lawyer as above stated. The lawyer represented his client.’ What he did was the act of his dient. When he accepted the deposit in the bank,
Judgment in each- case reversed,. and casesi remanded for further proceedings consistent herewith.