156 Ky. 218 | Ky. Ct. App. | 1913
Opinion of the Court by
Commissioner — Affirming.
On August 3, 1911, plaintiff, E. A. Hurst, brought an action against H. C. Duff, Jr., to cancel the contract of sale and the notes executed in pursuance thereto on the ground of fraud. Pending this action the note for $3,000 matured, and E. C. Duff and Chester Duff, claiming to be the owners thereof, brought suit to enforce its collection. The two actions were consolidated and on final hearing plaintiff’s petition was dismissed and judgment rendered against him on the note in question. From that judgment he appeals.
Hurst charges a scheme on the part of H. C. Duff, Jr., and E. C. Holliday to defraud him. The alleged scheme was this: Holliday was to and did represent to Hurst that he, Holliday, was the agent of C. B.‘Slemp for purchasing coal and mineral lands in Perry and other counties on the Kentucky Eiver; that Slemp was very desirous of purchasing Duff’s coal, and would pay $8,000 for it, and that if Hurst would buy it from Duff, he, Holliday, would have Slemp take it off his hands at that price.
On the question of fraud the evidence, in brief, is as follows: Hurst says that about the 1st of July, 1911, Holliday came to his office in Jackson and asked' him to purchase of Duff a tract of land that Duff owned on the North Fork of the Kentucky Eiver. Holliday said that he was the agent of Slemp, and that Slemp owned about 800 acres of mineral land on Caney Creek in Breathitt County, and that he and Slemp wanted to buy the Duff land in order to bring the mineral through Duff’s land, which would afford a shorter route from the 800 acres to the railroad which was being built. By going through Duff’s land they would be able to save the building of a railroad down Caney Creek some three
Duff testified that some, time between the first and third of July he came by Hurst’s office. Mr. Hurst, E. C. Holliday and Bob Holliday were present. E. C. Holliday asked him if he had sold his minerals. He told ¿Holliday that he had not, but that he had two letters from Virginia offering $12.50 an acre for it. He then told Holliday he would like to sell it to him and Slemp, the man he was working for. Holliday replied that Slemp did not want minerals below the Perry County line; that the boom was on from the Perry County line up. He further said “I would not give you $500 for the minerals.” He told Holliday that he could not get it then. In five or six days from that time he came by Hurst’s office. Hurst wanted to know if he would trade his minerals for town property. After some further discussion he left. About the 12th or 15th of July he came by Hurst’s office. Hurst told him that he had taken a notion to purchase his minerals. He then priced the minerals to Hurst at $3,500. They got into some discussion about the time of payment and then he left. Nothing further was said about the matter until July 22nd. He then priced the property at $3,750. Hurst declined to give it. Finally Hurst agreed to give him $3,650, and to execute his note payable in 90 days at six per cent
According to E. C. Holliday’s testimony, Hurst asked him if he was working for Slemp, and he informed him that he was not. Hurst began discussing the purchase of the minerals. After some talk he and Hurst agreed to purchase Duff’s minerals and divide the profits. Hurst suggested that they meet Duff and that he tell Duff that Slemp would not take the minerals. Following this plan he did tell Duff this. As to what took place at the conversation between him and Hurst and Duff, he corroborates Duff. He also stated that he did not enter into any scheme with Duff to sell his property, nor did he receive a part of the proceeds or any sum at any time from Duff. Bob Holliday, his brother, gives the conversation that took place at the time of the conference in substantially the same language as E. C. Holliday.
On the facts as developed by the record, we see no reason to disturb the finding of the chancellor. While there is evidence tending to show that E. C. Holliday represented to Hurst that Slemp would take the lands and pay a bonus therefor, the evidence utterly fails to show that these representations were part of a conspiracy entered into between him and Duff. In other words, even if it be conceded that there was fraud on the part of Holliday, there is nothing to connect Duff with the fraud. The weight of the evidence is to the
Judgment affirmed.