182 Ky. 334 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
. The appellee in this action, E. W. Avey, recovered of the appellant J. H. Hollingsworth, in the court below a judgment of $1,532.76 upon an account for merchandise, consisting of provisions and other supplies alleged to have been sold and delivered certain tenants of the latter. An appeal was taken from the judgment by Hollingsworth, which was dismissed by this court because of his failure to file the transcript of the record in the office of the clerk of the court within the time required by the Civil Code, section 738. As the appellant had superseded the judgment by the execution of the proper bond, when the appeal was dismissed, appellee, in addition to recovering his costs on the appeal, was awarded ten per cent damages on the amount of the judgment superseded. The case is now before us on a second appeal from the judgment of the circuit court, which, as two years had not expired after its rendition, appellant had the right to take by praying it in this
We find from our examination of the record that the claim was made by appellee in the petition that appellant’s indebtedness to him was $2,285.24, but by an amended petition, filed before the latter answered, this amount was reduced to $1,532.76, the amount recovered. The answer denied any indebtedness from appellant to appellee and pleaded a settlement between the parties made, as alleged, three years before the institution of the action whereby appellant’s indebtedness to appellee was fully paid; and that for such merchandise as he after-wards purchased of appellee the latter was paid at the time of its purchase or soon thereafter. The answer also alleged that appellant had made various payments to appellee for which the latter failed, by mistake or otherwise, to give him credit; and that numerous charges were made against him in appellee’s account for merchandise sold to several'of appellant’s former tenants after they left his farm and employment. The answer further alleged that by reason of errors in appellee’s account arising from his failure to credit appellant with payments he had made him, appellee had been paid by him $500.00 more than he owed him, for which judgment was prayed by appellant and to recover which the answer was made a counterclaim and set-off. After the filing of a reply traversing the allegations of the answer, counterclaim and set-off, the case was transferred to the equity docket and the proof taken by the parties in the form of depositions. The trial resulted, as previously stated, in a judgment in appellee’s favor for $1,532.76.
It appears from the evidence that appellant or his wife is the owner of a tract of land on the Mississippi River in Hickman county, known as “Wolf Island,” which he has had cultivated from year to year by numerous tenants who pay the rents by sharing with appellant the crops they raise thereon; and that his contracts with these tenants made it his duty to furnish them with such foodstuffs and other supplies as would enable them to produce the crops required of them, for which he would be paid out of their portions of the crops as produced. It
Tested by either of the rules stated, it is our conclusion that the judgment should not be disturbed. Wherefore, it is affirmed.