107 S.W.2d 287 | Ky. Ct. App. | 1937
Reversing.
Charles Finley and the Proctor Coal Company have appealed from a $500 judgment recovered against them upon a contract alleged to have been made under the following circumstances:
On February 24, 1921, Michael Thomas, Daniel F. Thomas, and Sherrod Thomas (three of the four children of Aaron Thomas) sold to Aaron Perry their interest in a certain tract of land known as the "Abbott tract," inherited from their father. The Proctor Coal Company claimed to own this Abbott tract, and when, on June 6, 1924, they sold the timber on their other property, they included in the sale the timber on this Abbott tract and received $26 per acre therefor.
On June 25, 1926, Aaron Perry as the owner of three-fourths and Francis M. Thomas as the owner of the other one-fourth of this Abbott tract sued the Proctor Coal Company, Charles Finley, and F.W. Finley, to recover $4,600, the value of the timber on the Abbott tract at $26 per acre.
On December 30, 1926, Daniel F. Thomas et al. (grantors in the deed of February 24, 1921) sued Aaron Perry to cancel that deed.
On September 25, 1934, Francis M. Thomas, Aaron Perry, and the holders of various liens on Perry's interest filed this suit against Charles Finley and the Proctor Coal Company upon this contract and obtained the $500 judgment from which this appeal is prosecuted.
Limitations do not start from the making of a contract, but from the date of its promised performance. The time fixed for the performance in the contract alleged was when the suit of December 30, 1926, was settled. That date was December 30, 1930, and as this suit was filed September 25, 1934, there was no question of limitations involved, hence before giving it again the court will strike from its instruction No. 7 reference to limitations.
Judgment reversed, and new trial awarded.
Whole court sitting. *425