183 Ky. 362 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
On -June 6, 1910, L. T. Wright and L. C. Craig purchased from the Heilman Machine Works, a corporation at Evansville, Indiana, hereináf ter called “the company,” a traction'engine, a threshing outfit and a small sawmill, for which they agreed to pay the sum of $2,200'.00, none of which was paid in cash, but all of it by deferred payments distributed over a number of years,
It is insisted by plaintiffs’ counsel on this appeal that conceding the evidence to be sufficient to authorize a finding that the Wrights were released, as they claim, then there was no consideration for the release, and it therefore is not binding. This contention no doubt would be true if all of the original makers of the notes were at that time bound thereon, but the evidence is conclusive that in 1911 Craig'had been released from all liability on the notes, and the mortgage which he had executed upon his land had been surrendered and cancelled. This, as we have stated, was upon the consideration that the Wrights executed a mortgage upon the land sought to be sold in this case. If Craig was released in 1911, he became, as between him and the obligee in the notes, as much a stranger to them as if he had never executed them. So that in 1913, when the Wrights claimed that they were released by Craig assuming the payment of the notes, if the company, agreed to that arrangement and agreed to look to Craig alone for their payment, he at that time ■not being obligated thereon, there was a sufficient consideration for the novation, and this contention can not be upheld. The controversy is then reduced to but one issue, which is one of fact, it being whether the company agreed to release the Wrights and to look only to Craig for payment of the notes at the time the latter took charge of the machinery in May, 1913.
We have carefully read all of the testimony in the record, some of it more than once, and we have failed to find any witness who testified in the case supporting the .contention of the Wrights, save L. T. Wright himself. He testified in substance upon this issue that he had gotten tired of running the mill, and he had concluded- to sell out to Craig and notified the company of that fact,
The engineer testified that he did not hear the conversation, but that he was afterwards told by Mr. Wright that he had been released, which, of course, is no testimony at all. Albert Wright testified that Gibson told him that he and his father were released. This, however, is subject to the same explanation as is that which Gibson is alleged to have made to the witness Minton upon whose land the sawmill was being operated. So that if the case should be rested upon the testimony of the witnesses alone directly upon the point, it is extremely doubtful whether the finding of the chancellor that the Wrights were released could be upheld by us, under the rule governing our right to review findings of fact in equity cases. That rule is different between the verdict of a properly instructed jury and the judgment of the chancellor upon the facts. In the case of the verdict of a properly instructed jury, we are not authorized to disturb it unless it is flagrantly against the evidence, while the rule applicable to the judgment of the chancellor, rendered in an equity tease, is that while his judgment as to the facts is on appeal entitled to-some weight, yet this court will judge for itself of the sufficiency or insufficiency of the evidence, and if it is found to be insufficient to support the judgment, it will be reversed. But in addition to the testimony referred to, there are circumstances in this case which convince us almost beyond doubt of the error of the chancellor’s finding that the Wrights were released. We have seen that no writing of any character was executed, evidencing in any manner the alleged release; and furthermore, if defendants ’ contention be true, the company not only released the Wrights from their personal • obligation on the notes but also released the lien upon the land of both father and son for no other consideration than the personal obligation of Craig, whom all parties concede to be wholly insolvent. Such a course does not accord with the conduct of.business men. It would have been entirely unnatural and from a business standpoint both unusual and inexplainable. Beyond these circumstances the record discloses that some time in September, 1913, about four months after the Wrights claim to have been released, L. T. Wright made a proposition to the company to release him from all liability on the
The proposition and letter just referred to are -wholly inconsistent with the defense of a release relied on in the answer. In fact there is no accounting for either the proposition or the letter without the recognition of a continued liability upon the notes, so that when all the facts and circumstances are considered, we can find no escape from the conclusion that the court’s finding that the release had been granted was not only against the weight of the evidence, but against the great preponderance of the evidence. Under the rule, supra, it is not only our right but our duty to find the facts in accordance with the testimony. This compels us to hold that no release had ever been granted, as contended for.
Wherefore, the judgment is reversed with directions to render judgment against L. T. and Albert Wright as prayed for, and to credit it with the proceeds of the machinery which has been ordered sold, and then direct the mortgaged land, or enough of it, sold to pay the balance of the judgment, and for such further proceedings as are not inconsistent herewith.