136 Ky. 634 | Ky. Ct. App. | 1910
Opinion op the Court by
— Affirming.
Upon the return of the case a trial was had and the jury again returned a verdict in favor of the Bank of Taylorsville. Prom the judgment based thereon, IT. C. Mathis is here on appeal.
The first error assigned is the failure and refusal of the court to sustain appellant’s petition for a chang-e of venue. The application for a change of venue was based upon the alleged undue influence of appellee is Spencer county.' The evidence heard upon this application in behalf of appellant was to the effect that the Bank of Taylorsville was the principal financial institution of Spencer county; that the county had about 1,800 voters, of whom about 1,000 or 1,200 were eligible to jury service; that the bank’s depositors numbered about 700 or 800; that, oin addition to this, it had 30 stockholders. Besides these, there was a considerable number of people who borrowed from the bank. Such persons lived in every section of the county. While appellant’s witnesses testified to the influence of the bank in the county, the majority of them on cross-examination were of opinion that appellant could obtain a fair trial in the county. The statute authorizes a change of venue where undue influence is shown. The evidence in this case fails to disclose any influence other than that growing out of the successful operation of the bank and the following secured by reason of a well-earned reputation. Although such following is
It is next insisted that the court erred in submitting to the jury the issue of partnership, as such issue was not made in any pleading in the case. While it is true that the evidence in a case should be confined to the issues made by the pleadings,'and that the instructions should relate only to the issues so made, a peculiar state of facts is presented in this case. In its response to the petition for rehearing. this court said that, although in its opinion C. G-. Mathis was not directly authorized to sign H. C. Mathis ’ name to the notes executed by bim for overdrafts in his (C. G-. Mathis’) account, nevertheless, if H. C. Mathis was a partner of C. G-. Mathis in the ventures or business enterprises In which the money drawn out on over-drafts was invested, and if the account was opened up in the name of his son with his (H. C. Mathis’) knowledge and consent, and for the benefit of the firm, and he ratified and approved the notes given to satisfy the overdrafts, he should account to the bank for such sums. This response did not direct that appellee amend its pleading. Upon the return of the case, the only real question between the parties was one of partnership. Upon the trial of the case, the evidence was directed to this issue. The case was fought out along that line. This question was submitted to the jury by instructions authorized by this
Upon the question of partnership, the evidence of appellant and his son, C. O. Mathis, was to the effect that no partnership existed. It was shown that on J anuary 1, 1903, appellant leased his farm to his son, C. Gr. Mathis, and his son-in-law, C. W. Muir. The arrangement between C. Gr. Mathis and C. W. Muir was abandoned. Some time in February the interest of Muir in the partnership venture and in the property that had been bought to carry on the business was sold and paid for by appellant’s check for the sum of $50. The evidence for appellant further tended to show that, after the interest of Muir was purchased, C. Gr. Mathis remained the sole lessee of the farm. At the time of the leasing to Muir and C. Gr. Mathis, they executed a note for the rent. The name of C. W. Muir was erased from this note. When appellant advanced certain sums to his son, it was merely a case of borrowing and lending, and not because of any interest appellant had in the conduct of the farm or in property on the farm. On the other hand, the evidence for appellee is to the effect that prior to January 1, 1903, appellant and O. Gr. Mathis were partners in the operation of the farm. The son furnished the labor, the father the capital and the farm, and the son was to have one-third of the profits. When Muir was released from his rent, appellant stated that this threw the farm back on his hands. After Muir retired, appellant paid some of the hands on the farih. In the year 1903 appellant listed all
While there is a sharp conflict in the testimony, and much to sustain the contention of appellant that no partnership existed, the question was one for the jury, and we cannot say that their verdict is flagrantly against the evidence.
The court did not err in permitting the banks’ president (Mr. Bourne) to testify to a conversation had with O. G-. Mathis, in which the latter stated that Charley Muir had declined to go into partnership with him and that his father had taken his place. C. G. Mathis, on cross-examination, was asked if he had made such a statement, and he denied that he had. The evidence in question was incompetent as substantive testimony to prove partnership, but was admissible as affecting the credibility of C. G. Mathis, and the court so told the jury. Indeed, throughout the case the court did not permit any statements of O. G. Mathis, to the effect that he and his father
Nor are we able to see how appellant was prejudiced by the statement of the president of the bank that the overdrafts in the account of C. Gr. Mathis in the bank were good if PI. C. Mathis was bound, and were not worth anything if he was not bound. The fact that C. Gr. Mathis was insolvent is abundantly established in the record, and there was not a man upon the jury who did not know this fact, regardless of Mr. Bourne’s statement.
The instructions given by the court are very long, .and it will be unnecessary to set them out at length. Suffice it to say that in every substantial respect they conform to the instructions directed to be given by this court in the opinion and extended opinion on the former appeal.
Perceiving no error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed.