62 Ky. 183 | Ky. Ct. App. | 1864
delivered the opinion or the court :
John W. Wright bought from H. C. Chalmes a lot of mules at a fixed price, on a stipulated credit. Chalmes was to keep the mules for a few weeks, and then deliver them to Wright,
Lewis, having been compelled to pay a large sum as surety in the notes signed by himself and Wright, brought this suit against Duncan for restitution, on the ground, as alleged in the petition, that Duncan was a dormant partner in the purchase of the- mules for which the notes were given. This allegation being denied by Duncan’s answer, a verdict and judgment were rendered against him for the sum paid by Lewis. This appeal seeks a reversal of that judgment.
According to- the legal effect of the only proof of the character and terms of the contract of purchase, the title to the mules was vested' in Wright on the day of the contract, and they were held at his risk by Chalmes, either for the vendee’sbenefit in feeding or for the security of the vendor for the execution of the notes with good security. Had the mules died in the possession of Chalmes, and without his fault, the loss would have been Wright’s, and he would have still been liable to Chalmes for the price. This doctrine, as often recognized by this court, is conclusively settled by British and American authorities uniform and well understood. The following quotation from this court’s opinion in Crawford vs. Smith (7 Dana, 61), may be taken as an apposite illustration of it: “A legal title may pass by the terms or the legal effect of the contract, and nevertheless, in judgment of law, the vendor may have a
According to the testimony, without discrepancy or doubt, such was the contract and its legal effect in this case; and the circuit judge ought so to have instructed the jury. But, instead of doing this, he instructed the jury, vaguely and ambiguously, that, if they believed that Wright and Duncan were partners in the mules at the time they were purchased, they should find for Lewis; thus bewildering the jury with the question when the purchase was complete so as to vest title in the mules; and also instructed them misleadingly, that “ if Wright agreed with Chalmes that he would take .the mules at a future day at a certain price, and then execute his note, the purchase was not complete until the note was executed.”
There is no pretense of testimony that Duncan ever agreed or intended to be responsible for the price of those mules which Wright put in as his own, already bought on his own credit) and to be paid for by himself alone. Extracts from Duncan’s letters to Wright concerning their debts arid payments of them, in which he spoke of them without discrimination as “ our debts,” and said they were all paid “ except Headly’s, Redman’s, Smith’s, and Chalmes’s,” cannot be so perverted as to imply
From this, the only judicial view of this case, it is evident that the jury were misinstructed, or not properly instructed, and that neither the law nor the facts authorized the verdict.
Judgment reversed, and cause remanded for a new trial according to the foregoing opinion.