206 Ky. 515 | Ky. Ct. App. | 1925
Opinion op the Court by
Affirming on the original and reversing on the cross appeal.
Under a contract with the Lee Tire and Bubber Company of Pennsylvania giving him the exclusive sales agency for its tires in certain counties of Western Kentucky, among which were McCracken and Christian, the appellee, E. A. Eodgers, had prior to April 15, 1921, been conducting an automobile tire business in Paducah with a branch at Hopkinsville. At this time the affairs of this Hopkinsville branch, which had been under the management of H. C. Moore, had become much involved, and it is not quite clear from the proof that B. A. Eodgers was then himself absolutely solvent. On the date mentioned, in company with James Wilton, an auditor, Eodgers went to Hopkinsville and there got in touch with
During the interim Herbert had bought from his father at Paducah automobile tires and merchandise to the extent of $3,094.12, as he admits in his proof, although bis answer admits only $3,033.28, for which he was indebted to his father at the close of this period. Pie had by November also collected in a large part of the outstanding accounts referred to in the bill of sale, the uncollected portion amounting to $3,719.42, and he then had on hand very little merchandise or fixtures. It is true that he had paid off so far as this record shows the liabilities set out in the bill of sale and had drawn some $1,600.00, as he says, for living expenses, but at that, there was a large sum of money which he had realized out of the business but where it has gone he does not say.
Between the date of the bill of sale in April and the bringing of this suit in November following, the appellee, R. A. Rodgers, had become more and more involved in the conduct of his business at Paducah. In September, he was compelled to call upon his son, the appellee, R. E. Rodgers, who was conducting a like business at Owensboro, for help. This son will hereinafter be called Emmett. Emmett was a good business man and was prosperous. In response to his father’s call, he went to Paducah and straightened out his father’s affairs. In so doing, he became guarantor’of his father’s account with the Lee Tire and Rubber Company in Pennsylvania, subject to certain conditions of control of his father’s business by him. He then returned to Owensboro, but he had scarcely reached home when his father utterly ignored all of the conditions that Emmett had prescribed for the conduct of the business at Paducah. Becoming alarmed at the way things were going at Paducah and fearful of his guarantee, Emmett in the latter part of October went back to Paducah, examined his father’s books, found him insolvent, and then in order to save him the humiliation of a public failure took over the business and its assets and assumed all its outstanding liabilities. Although R. A. Rodgers consented, of course, to this transfer, he became angry at his son for “forcing him out of
By his answer and counterclaim, Herbert admitted the account sued on in this action to the extent of $3,033.28, but pleaded by way of counterclaim that through mutual oversight there had been omitted from the bill of sale a clause or provision whereby his father guaranteed the outstanding accounts to be worth one hundred cents on the dollar; that this guarantee was a part of the transaction of sale and a part of the consideration of his purchase of the Hopkinsville business, and that the outstanding accounts had failed to realize one hundred cents on the dollar by the amount of $3,719.42, for which he asked credit on the account sued on and a judgment for the difference between them. A reply in the nature of a traverse completed the issues.
The proof of the appellant was directed, in the main, to show the omission by mutual mistake or oversight of the alleged provision concerning the guaranteeing of the accounts. On the theory that appellant had not shown himself entitled to a reformation of the bill of sale, and that as the bill of sale was full and complete on its face, it could not be varied by parole evidence in absence of a right of reformation, the lower court excluded all the testimony concerning the alleged guarantee and gave Emmett a judgment for $3,033.28, admitted to be due him by Herbert’s answer. Appellant’s appeal presents squarely the proposition whether or not by his proof he
It has been written by this court times without number that to obtain the reformation of an instrument, the proof of mutuál mistake or fraud must be clear and convincing and such proof is not confined alone to the express statements of witnesses, hut may also be tested by the character of the testimony, the coherency of the entire case, and the documents, circumstances and facts which are proved. Irwin v. Westwood Real Estate and Development Co., 200 Ky. 760, 255 S. W. 546. The appellant, to substantiate his claim, introduced himself, Wilton, who drew the-bill of sale, Boston, his father-in-law, and his father, a nominal plaintiff and appellee herein. Appellant and his father testified that the guarantee of one hundred cents on the dollar was a part of the contract of sale, and that it was omitted from the written bill of sale through a mutual oversight. As heretofore pointed out, Boston, R. A. Rodgers, and Wilton all three testified that after the bill of sale in its entirety had been explained to Boston by Wilton and Rodgers in the hospital at Paducah, Boston raised the question about the value of the accounts covered by it. It is obvious from this that Boston was then quite aware that there was nothing said in the bill of sale about a guarantee or he would not have raised the question he did, and it is equally as obvious that R. A. Rodgers and Wilton both knew the guarantee was not in the bill of sale, because instead of referring Boston to the bill of sale on the question he raised, R. A. Rodgers said that he would guarantee the accounts at one hundred cents on the dollar. Herbert was not present at this conversation, being in Hopkinsville, and only he and his father were parties to this bill of sale.. Up to this time, R. A. Rodgers had not signed the bill of sale and if it had been the desire of the parties to incorporate this guarantee, which it is claimed was a part of the contract of sale, in the bill of sale it could then easily have been done, especially since its absence was thus called to the attention of at least one of the parties and of the draftsman. However, we believe that the parties at that time had exactly the same idea of the situation as is disclosed by the testimony in this case of the auditor, Wilton. On direct examination this witness said: Q. “Mr. Wilton, why was it that that (the guarantee) was not incorporated in the bill of sale
Appellee, R. E. Rodgers, has filed a cross-appeal claiming that ho proved the account sued on to be $3,270.55, but was given judgment only in the amount admitted by appellant’s answer, that is $3,033.28. Appellee’s proof as to the exact amount of his claim is very unsatisfactory, and we therefore are obliged to abide by the admissions made by appellant as to what is due appellee. Although appellant’s answer admits only $3,033.28 due, his proof shows the amount to be $3,094.12, ■and therefore to the extent of the difference between these two figures, the case is reversed on appellee’s cross-appeal, with instructions to the lower court to enter judgment in favor of appellee, R. E. Rodgers, against the appellant, A. H. Rodgers, for $3,094.12 instead of $3,033.28. In all other respects the judgment is affirmed.
Affirmed on the original and reversed on the cross appeal.