203 Ky. 468 | Ky. Ct. App. | 1924
Opinion of the Court by
-Affirming.
Tbe Remedial System of Loaning, a corporation of Lexington, Kentucky, instituted an action in tbe Fayette circuit court against tbe firm of Aker & Vogt, appellees herein, and one H. R. Baker. As its cause of action tbe plaintiff alleged tbat Aker & Vogt bad transferred and assigned to it before maturity and for a valuable consideration a certain promissory note executed and delivered to them by tbeir codefendant, Baker; tbat tbe note was dated May 25,1920, and was for tbe principal sum of $1,646.03, payable in twelve monthly installments of $137.18 each, beginning June 25, 1920; and that tbe payment thereof was secured by a chattel mortgage, likewise assigned to plaintiff, on a certain Traffic truck, whereby it was provided that, in tbe event of a default in tbe payment of any monthly installment, all of tbe unpaid, balance should immediately become due and payable. Alleging tbat defendants had paid only two of tbe monthly installments and were therefore in default, plaintiff prayed for a judgment against Aker & Vogt and EL R. Baker for tbe unpaid balance of tbe note and sought by attachment to enforce its lien on tbe truck described in tbe mortgage. Thereafter Aker & Vogt paid tbe balance due on tbe note which, together with tbe mortgage, was transferred and assigned back to them by tbe Remedial System of Loaning, and with tbe latter we have no further concern upon this appeal.
Appellees, Aker & Vogt, filed a cross-petition against tbeir codefendant Baker, and joined with him as a defendant in tbe cross-petition the appellant, Roberts, who theretofore had not been a party to tbe action. It was alleged tbat Baker and Roberts were partners and as such bad
The appeal presents no question of law; it raises ■simply an issue of fact. In cases of this character, while this court will give some weight to the finding of the chancellor, nevertheless, it will give judgment according to the truth of the matter as it appears from the record. Where, under the evidence, the truth of the matter is ■doubtful, the chancellor’s conclusions on the facts will not be disturbed. We are convinced, after a careful consideration of the record upon this appeal, that the judgment is in accord with, rather than against, the weight ■of the evidence.
Appellant, Roberts, was a yard foreman of the L. & N. Railroad Company at Paris, Kentucky, but had been ■engaged in the garage business as a side line since some time in February, 1919; at various times since that date .he had been a member of different partnerships and had
Acting upon this request, appellees drove one of their trucks to Paris, and, as they claim, sold it to Roberts and Baker jointly, or, as Roberts claims, .sold it to Baker alone. At all events, upon arriving at Paris Aker & Vogt called at Roberts’ garage, where the latter got in the truck with them and the three together drove to where Baker was at work. On the way they discussed the time of payments and other details of the proposed sale. The parties differ materially as to what was said and done at the conference later when they found Baker. Appellees claim that, after the usual negotiations that take place at a sale, Roberts said they would take the truck, and further said, “Of course, you know I am buying this truck, but I am putting it in Baker’s name, and if he runs over and kills anybody it won’t take everything I have.” Roberts thereupon gave them his personal check for $524.00, the amount of the first payment on the purchase price, and they delivered the truck to Baker and him jointly. The balance of the purchase price was to be financed- or carried by the Remedial System of Loaning, but appellees did not have the necessary papers with them at the time, and it was understood that they would return with them in a day or two. The next day appellee Vogt returned to Paris with the unsigned note and mort
On the other hand, while denying that he made the ■statements sworn to by both Aker and Yogt, appellant admits that he requested appellees to bring the truck to Paris and that he there discussed its purchase and advised Baker relative thereto, but insists that he was acting solely for Baker and not for himself. He further admits making all the payments mentioned above, but states that he was simply financing Baker so as to enable the latter to pay the $1,500.00 which he owed appellant for the truck alleged to have been purchased from him.' In ■support of this he testifies that Baker was doing a large amount of hauling with both the trucks for the Mason & Hanger Company, a construction company which had a large contract in that neighborhood. Being without means it was necessary for him to advance money from time to time both to and for Baker, so that the latter could •continue to operate his trucks and thus keep up his pay
_ It would unduly lengthen this opinion to enter into a discussion of the various items set out in the itemized statement or the inferences to be drawn therefrom. This was all the evidence offered by appellant, Roberts, and while it, in a measure, supports his theory, of the case, it by no means outweighs the evidence offered by the appellees.
Upon a consideration of the whole case we are satisfied that the lower court was justified under the evidence in holding that the appellant was in fact a partner of Baker, at least to the extent of having jointly purchased with him the truck in question, and therefore the court did not err in rendering judgment against him for the amount of the purchase price.
Wherefore, the judgment is affirmed.