149 Ky. 819 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
In the years 1906, 1907, 1908 and 1909 the appellee, Nantz, was sheriff of Leslie County, and the appellant, Sizemore, was his deputy. After the expiration of his term Nantz brought suit against Sizemore to recover a balance alleged' to be due him on a settlement of his accounts as deputy sheriff. To this petition Sizemore filed an answer, set-off and counterclaim, in which he sought to recover judgment against Nantz for an amount alleged to be due him on a settlement of their accounts. After the pleadings had been made up the case went to trial before a jury, with the result that a verdict was returned in favor of Nantz, and from, the judgment on this verdict Sizemore appeals. One ground of reversal relied on is that the verdict of the
It appears that in 1910, after the term of office of Nantz had expired, Sizemore and Nantz had a settlement of their accounts, and whether or not in this settlement all matters in dispute between them were adjusted is one of the principal issues in this case. Both of the parties concede that a settlement was made, and counsel for Sizemore asked the court to give the following instructions:
“If you believe from the evidence that the plaintiff, Nantz, and the defendant, Sizemore, at the time mentioned in the evidence made a complete settlement, including’ the years 1908 and 1909, and the defendant, Sizemore, agreed thereto, then you ought to find for the plaintiff as set forth in instruction ‘A.’ ”
Instruction “A” offered for Sizemore, reads:
“You will find for the plaintiff, Allen Nantz, any sum you may believe from the evidence defendant G. A. Sizemore is indebted to him, not to exceed the sum of $645.82, unless you believe from the evidence as set forth in instructions two and three following.”
The court declined to give the instructions offered, but on his own motion instructed the jury substantially as requested by counsel for Sizemore. Indeed the only objection made to the instructions, is to the instruction! given by the court on the subject of the settlement between the parties. Upon this point the court directed the jury as follows:
*821 “If you believe from the evidence that the plaintiff, Nantz, and the defendant, Sizemore, at the time mentioned in the evidence made a settlement, including the years 1907, 1908, 1909 and 1910, and that the defendant, Sizemore, agreed thereto then you ought to find for the plaintiff as set forth in instruction No. 1.”
The only difference between this instruction and the one offered by counsel for Sizemore is that the offered instruction directed the jury to find for Sizemore if they believed a “complete” settlement was made while in the instruction given by the court the word “complete” is not used. It will, however, be observed that in the instruction given by the court the jury were told that they could only find for Nantz in the event a settlement was made and that “Sizemore agreed thereto.”
We do not think there is any substantial difference between the offered instruction and the one given. The instruction given conveyed to the jury the idea that .the settlement made between the parties to be effective must have embraced all their accounts during the years that Nantz was sheriff except for the year 1906, and there was no dispute between the parties, as to the business of this year. If a settlement was made for the years 1907, 1908, 1909 and 1910, and Sizemore agreed to it this settlement covered all matters in dispute between them. It is also apparent that the jury believed that a settlement was made between the parties, and that in this settlement all matters in issue were adjusted and a balance found to be due Nantz.
It is also complained that the court erred in rejecting the evidence of A. B. Morgan, who acted as deputy sheriff for Nantz during the year 1907. We have examined the rejected evidence and find that there is only one question and answer that was competent and this answer was not of sufficient importance to influence the jury either one way or the other.
It is also argued that a new trial should have been granted upon the ground of newly discovered evidence. Nantz testified that no settlement was attempted to be made between Sizemore and himself for the year 1907, while Sizemore insisted that a settlement was attempted to be made.
In support of his motion for a new trial on the ground of newly discovered evidence Sizemore set out ■that while the trial was in progress he had misplaced
Upon the whole ease we find no reason for interfering with the judgment, and it is affirmed.
The motion to dismiss the appeal granted in the circuit court is sustained and that appeal is dismissed, with damages.