| Ky. Ct. App. | Mar 11, 1914
Opinion op the Court by
Affirming.
Appellant was sued by appellee in the court below for the sum of $500.00, commission alleged to be due him on the sale of 1,031 poplar, lynn, ash, cucumber, pine and chestnut trees, situated on Elkhorn creek in Pike and Letcher counties, Kentucky, to the Wright-Kitchen Lumber Company, a corporation of Ashland, Kentucky, by P. M. Mechlin, trustee of Pittsburg, Pennsylvania. The appellant, Alex Moore, acted as the agent of F. M. Mechlin in making the sale of the timber to the Wright-Kitchen Lumber Company, and it was alleged in the petition that the appellee, Albert Damron, was employed by the appellant to assist him in effecting the sale, in doing which, he rendered valuable services for which appellant agreed to pay him the sum of $500.00; that although appellant had received from his principal, Mechlin, trustee, a commission of five per cent amounting to more than $1,300.00 for making the sale of the timber in question, he refused to pay appellee the $500.00 agreed upon between them as compensation for his services and placed the amount he had received from Mechlin to the credit of his-wife, Kissie Moore, in the Pikeville National Bank, with the fraudulent intent to cheat, hinder an'd defraud his creditors; especially the appellee, in the collection of the $500.00 due him.
The petition properly. alleged grounds necessary to obtain a general attachment against the property of appellant and such attachment was issued upon the filing of the petition, a copy of which was executed upon the Pikeville National Bank as garnishee.
Appellant filed an answer of two paragraphs, the first containing a traverse. In the second paragraph, it was alleged that appellant had been employed by F. M. Mechlin, trustee, of Pittsburg, Pennsylvania, to sell all of the soft-wood’ timber owned by the latter on Elkhorn creek in Pike and Letcher counties, Kentucky, for effecting
The trial resulted in a verdict in favor of appellee for $500.00, the amount claimed! in the petition; and_the judgment entered thereon also sustained the attachment. Appellant moved for a new trial, which was refused, and he has appealed.
Appellant makes no complaint of the instructions that were given on the trial, but insists that the court erred in refusing an instruction asked by him, and also erred in refusing to allow to be filed an amended answer offered by him. The refused instruction was as follows: ‘‘ The court instructs the jury that if they believe from the evidence that in making said sale, that plaintiff was the agent of the Wright-Kitchen Lumber Company, then in that event they will find for defendant.” This instruction was properly refused, because it was neither alleged in the answer of appellant nor shown by the evidence, that appellee was the agent of the Wright-Kitchen Lumber Company. It is true that at one place in his testimony appellee apparently admitted that he was or had been the agent of the Wright-Kitchen Lumber Company, but this statement was evidently inadvertently made and was later explained by him on his re-examination; from which it appears that he had, prior to the sale of the tim ber to the Wright-Kitchen Lumber Company, been in its employ, and that following the purchase by that concern
Appellant’s contention that the refusal of the court to allow to be filed the amended answer offered by him was error, is equally without merit. The amended answer was not tendered or offered to be filed until after the evidence had all been introduced, the instructions given, the case argued and the jury had retired to their room for deliberation and to find a verdict. While section 134, Civil Code, gives a trial court broad discretion in the matter of allowing amendments to be filed, this discretion should not be stretched to the extent of permitting an amendment as attempted by the appellant in this case. It may not be an abuse of discretion for the trial court to permit an amended pleading* to be filed even after a trial has commenced, or at any time before the case is submitted to the jury, if the ends of justice require it. The only limitation upon the discretion of the court in allowing amended pleadings is that they must be in furtherance of justice and must not change substantially the claim or defense; and with few exceptions the action of the trial court in permitting or rejecting amendments will be approved. Greer v. City of Covington, 83 Ky., 410" court="Ky. Ct. App." date_filed="1885-12-03" href="https://app.midpage.ai/document/greer-v-city-of-covington-7131669?utm_source=webapp" opinion_id="7131669">83 Ky., 410; L. & N. R. Co. v. Pointer, 113 Ky., 952" court="Ky. Ct. App." date_filed="1902-10-16" href="https://app.midpage.ai/document/louisville--n-r-r-v-pointers-admr-7135107?utm_source=webapp" opinion_id="7135107">113 Ky., 952; Rogers
Consideration of the evidence in this case convinces us that it was amply sufficient to sustain the verdict of the jury. We think it reasonably shows that but for the assistance rendered him by appellee the appellant could not have succeeded in selling for his principal the timber purchased by the Wright-Kitchen Lumber Company. Those services and their value in bringing about the sale are shown, not only by the oral testimony introduced in appellee’s behalf, but also by much of the correspondence appearing in the record, and, in large measure, by the admissions of the appellant. The same is true as to the evidence showing the contract between appellant and appellee, whereby the latter was to be paid $500.00 for the services rendered by him, and that this amount was to be paid him for his assistance in disposing of the timber that was sold, without regard to the failure of the parties
The record presenting no reason for disturbing tlie. yerdict, the judgment is affirmed.