116 S.W.2d 945 | Ky. Ct. App. | 1938
Reversing.
This is the second appeal of this case. Moore v. Pope,
It will be seen at the outset that the appellee is seeking by this suit to hold Mrs. Moore responsible upon an obligation to which she was not a party. As pointed out on the former appeal, "We do not conceive the liability of Mrs. Moore to depend upon whether her husband only promised to place the stock with the notes as collateral and did not do so." Unless some act of hers or some failure to act when she should have done so operated to the detriment of appellee, it is obvious that there is no basis for the assertion of a claim against her. The trial court properly presented this thought to the jury in its instructions. The evidence for appellee indicated that at the time when the notes to J.W. Bomar were executed, Mr. and Mrs. Moore and several other persons were present, although Bomar was not. It is claimed that at that time Moore, in the presence of Mrs. Moore, agreed to pledge the fifteen-share certificate together with the certificate for ten shares which he was then buying. It is likewise claimed that the fifteen-share certificate was there at the time and that Mrs. Moore made no objection and asserted no claim against the stock. Mrs. Moore, on the other hand, denies having been present on this occasion and asserts that the certificate remained in her possession during all of the periods involved. J.W. Bomar did not testify. The most that can be said of appellee's testimony is that it indicates an agreement on the part of H.R. Moore to pledge the fifteen-share certificate. When it comes to a consideration of whether or not the stock was actually pledged, we are confronted by circumstances which are overwhelming. Letters written by the attorney for Mr. Bomar on November 18, 1930, just two months after the transaction, show that but ten shares of stock were pledged with the note. Similarly, the notes themselves bear the indorsement: "This note secured with ten shares of Modern Motors, Inc. stock." Appellee asserts that this notation was placed on the notes after he had signed them. But in the face of his assertion, it appears that the notations were written on the same typewriter as *393 the body of the note, and in several instances the alignment of the type indicates very strongly that the notation must have been made without removing the instrument from the machine when the body of the note was written. There is likewise filed in evidence a letter written by appellee in June, 1931, to H.R. Moore, in which he refers to the fact that Bomar is pushing him for payment, and suggests that "no one here wishes to purchase the stock by itself, but if they could secure this and the $1500.00 that you or your wife owns they would be interested in purchasing the whole bunch together." He asserted no claim at that time to the effect that the fifteen-share certificate had been pledged. In addition, appellee, while asserting that the notes to Bomar had been altered and that the fifteen-share certificate had been surrendered by Bomar to appellant after it was pledged with him, made no effort to defend the suit by Bomar against him, although, if what he says is true, he must have had a good defense against Bomar's claim. Similarly, at the time the supposed pledge took place, it appears that Mr. and Mrs. Moore had already agreed to sell the stock to Spicer. It seems to us that the verdict is flagrantly against the evidence. Indeed, we are inclined to the view that a peremptory instruction for the defendant might have been proper. We cannot safely go to this extent, however, in view of the fact that the pleadings are not before us.
The only record now here presents the steps taken in the case after it was reversed and returned to the circuit court on the former appeal. It is the duty of counsel to see to it that the record on a former appeal is placed with the record on a subsequent appeal "when the record of the former appeal in the same cause is necessary to the decision of a subsequent appeal." Rule III, section 15, rules of the Court of Appeals. Upon our own investigation in the clerk's office, we find that the record on the former appeal was withdrawn by order of the circuit court and has not yet been returned. Obviously, in these circumstances, this court cannot and will not consider points not fully presented in the record here. There is enough for us to determine that the verdict on the second trial is flagrantly against the evidence. Other questions argued would require a re-examination of the pleadings, and we therefore do not consider them. They are reserved.
Judgment reversed. *394