Ed. Blanton & Co. v. Brandenburg

143 Ky. 651 | Ky. Ct. App. | 1911

Opinion op the Cotjet by

Judge Nunn

Affirming.

In 1908 Ed. Blanton was general manager of appellant, Ed. Blanton & Co., lumber merchants, of Richmond, Kentucky, James H. Brandenburg, appellee, and Gfeorge Goe were citizens of Beattyville, Lee County, Kentucky. Brandenburg contracted with Goe to furnish the material and erect a house in that city at a stipulated price. Goe completed the building and Brandenburg paid him therefor. After this had been done, Blanton filed a statement, within the time and as required by the statutes, to preserve a lien on the house and lot for the payment of some lumber appellant furnished to Goe to be used in the construction of the building, and this action was instituted to enforce the lien Several defenses were interposed, but it is necessary to consider only one of them. Appellee claims that appellant is estopped from asserting a lien on. his property for the following reason : At the time Goe took the contract to erect his house, Blanton came to Beattyville to see Goe for the purpose of trading Rim some dressed umber to go into the bouse, for some rough poplar lumber. Appellee stated that Groe and Blanton went down to where the rough lumber was, examined it and returned and that, according to bis recollection, they agreed that they bad traded. Groe swears positively that they did trade. Blanton swears that be made no trade; that be was under the influence' of liquor at that time and that be never made any trades while in that condition. Groe is im- ' peached by several witnesses for truth and veracity. Two or three witnesses testified that they saw a letter written by Blanton to Groe after the bouse was completed and paid for, telling him that be could go ahead and sell the rough lumber and that be could get him up a car load later when be wanted it. Blanton does not deny writing this letter or give any explanation of it. Groe says it bad reference to the lumber be bad agreed to take in exchange of the dressed lumber used in the bouse, and he is not contradicted. After receiving this letter, Koe did sell the lumber to others. If Blanton did agree to take this rough lumber in payment of the dressed lumber, be should not be allowed to change his mind after the bouse is completed and paid for, turn the rough lumber back to Groe and enforce a lien upon appellee’s property for the payment of the dressed lumber. The testimony seems to support appellee’s defense in this respect, therefore, the judgment is affirmed.