203 Ky. 580 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Appellee, R. P. Davidson, sued the appellant, Harlan Coal & Coke Company, in the Harlan circuit court, to 'recover $4,300.00 damages which he alleged resulted to him from appellant’s breach of a written contract between them by which appellant had agreed that he might log from the lands owned by it one million feet of timber.
As appellant’s contentions are presented by brief only one of the grounds set forth in the motion and grounds for a new trial is relied upon as authorizing a reversal of the judgment of the lower court. It relates to the abuse of discretion by the trial court in refusing to permit appellant to file an amended answer on the day the case was called for trial. It appears that the petition in this case was filed March 17, 1920. The answer was filed April 8, 1920. Appellant’s reply was not filed until January 5,1921, while appellee’s rejoinder was filed January 7, 1921. No further steps were taken in the case until it was called for trial on the 2nd day of May, 1922. This was the 26th day of the April term, 1922, of the court. By its original answer and counterclaim, filed more than two years previous to this time, appellant had pleaded that appellee had broken and voluntarily abandoned the contract for logging the timber, and that at the time he abandoned the work it had overpaid him for the. work he had done $129.33. By the amended answer and counterclaim, which it offered to file May 2, 1922, it set forth that for the work appellee had done for it under the contract before he quit the job, it had overpaid him to the amount of $379.70. The amended answer and counterclaim, by orders of the court, was made a part of the record for the purpose of this appeal. The orders do not indicate why the trial court refused to permit it to be filed. The amended answer and counterclaim is copied into the record and in our opinion does not state facts sufficient to constitute a counterclaim. The trial court may have refused to permit it to be filed for that reason.
At the close of the testimony in the case, appellant renewed its motion to file the amended answer and counterclaim, relying upon the provision of section 134 of the Civil Code authorizing an amendment to conform the pleadings to the facts proved. It is earnestly insisted that as the testimony clearly and without contradiction shows that for the work performed by appellee under the contract appellant overpaid him $379.70, the trial court erred in refusing the amended answer and counterclaim when offered at the conclusion of the evidence. We find, however, that the testimony on this subject for appellant
Three lines of the typewritten brief for appellant are devoted to the argument that the verdict of the jury is not supported by the evidence. We are of the opinion that appellant’s counsel devoted as much of his brief to that question as the facts warranted. On the issues as to which of the parties violated the contract, appellee testified that the appellant did, while appellant’s superintendent in charge of its work testified that appellee did. The jury found in favor of appellee.
No other question was raised by the brief for appellant, and as we have said in Brown v. Daniels, 154 Ky. 267, and Crawford v. Wiedemann, 158 Ky. 333, the court is not inclined to hunt for errors, and if none are points out by the briefs we wiil assume that none exist, or that they have been waived.
Judgment affirmed.