105 Ky. 624 | Ky. Ct. App. | 1899
delivered the opinion of the court.
This action was instituted in' the Pulaski Circuit Court by the appellant against appellee and W. F. Hansford, as partners under the style of Walter Elrod & Co., upon an account of goods and merchandise sold to that firm. Hansford made no defense. Appellee, Elrod, admitted the sale and delivery of the goods charged for to Hans-ford, and that they were used by the firm, but denied liability therefor, for the reason, as alleged, that, before the goods were sold or delivered by appellant, he (appellee) notified appellant that he would not be bound to pay for any purchases made by Hansford on a credit or on time, and that appellee also notified Hansford not to buy any goods except for cash, to be paid for on delivery; that, notwithstanding this notice to both Hansford and appellant, these goods were sold and delivered by appellant to Hansford, who had charge of the business, all of which was done without appellee’s knowledge or consent, but against his express wishes. To this answer a reply of denial of notice was filed. On this issue the case was tried before a jury, which resulted, after a mistrial and a second jury, in a verdict for appellee. Appellant’s reasons and motion having been overruled, this appeal is prosecuted.
On the question of fact the jury might have concluded either way, so close was the testimony; and their finding will not be disturbed, if they were properly instructed. The court gave one instruction as follows: “If you believe from the evidence that defendant Elrod before the 5th day of April, 1894, gave notice to Adams not to sell Hansford any more goods on credit, you will find for defendant; but, unless you so believe from the evidence,