143 Ky. 447 | Ky. Ct. App. | 1911
Opinion op the Couht by
Affirming.
Appellee J. H. Adkins lbronglit tliis actioú against appellant Henry Ratliff to recover the snm of $912.64, being the balance alleged to be dne under a certain contract for the sale of a boundary of timber for which appellant agreed to pay at the rate of $3.50 per thousand feet, Scribner & Doyle rule of measurement". Appellant denied that there was anything dne on the contract, and further pleaded that, by subsequent- oral agreement, he and appellee agreed that 7x9 ties were to be estimated as containing 25 feet, and thát measuring the timber upon this basis, he had paid for all he received. On motion the case was transferred to equity. An order was then entered referring the case to the master commissioner to hear proof and report what, if anything was due. After hearing proof the commissioner reported that there was due appellee the sum of $485.62. Both appellant and appellee excepted to the report. The conrt overruled appellee’s exceptions, but sustained those of appellant. Judgment was then rendered for $201.00 in favor of ap-pellee. From that judgment Ratliff has appealed, and Adkins has prosecuted a cross-appeal.
Appellant first insists that, as there was no reply filed to his answer pleading that he had paid appellee in full, and also pleading the subsequent oral" contract by which he and appellee agreed that 7x9 tms were to be paid for at the rate of 25 feet each, he was entitled to judgment on the face of the pleadings. The original record, as filed here did not contain the reply. Since then
The chancellor held that the proof did not justify the conclusion that there was an agreement between appellant and appellee to the effect that 7x9 ties should be paid for on the basis of 25 feet each. While appellee swears one way, and appellant the other, and appellant introduced two or three witnesses who claim to have heard appellee say that there was such an agreement, yet in view of the fact that appellant credited appellee on the basis of a larger number of feet in 7x9 ties, we can not say that the chancellor erred in his conclusion. It is not at all .probable, if there had been such an agreement, that appellant would have been so liberal.
We find, upon an examination of the pleadings, that appellee filed an original and several amended petitions, all of which differ as to the amount which he claims to be due him. We also find that, in Ins testimony, he claims different amounts at different times. Nor is appellant’s testimony any more satisfactory. Indeed, it is- impossible to tell from the record before us how much is due. The case, therefore, falls within that line of cases holding that where, after a reading of the entire record, the mind is left in doubt, the judgment of the chancellor will not be disturbed. (Young Bros. & Co. v. Clayborn, 125 S. W., 712, and cases cited.)
Judgment affirmed.
