122 Ky. 564 | Ky. Ct. App. | 1906
OPINION by
— Reversing.
In July, 1904, tlie Star Drilling Machine Company delivered to Geo. K. McLeod a portable drilling machine, which McLeod used in drilling oil wells ini Barren_ county. On October 17, 1904, creditors of McLeod brought suit in the Barren circuit court against him and took out attachments, which were levied on the drilling machine. Thereupon the Star Drilling Machine Company brought this suit, alleging that it was the owner of the property and took out an order of delivery for it. The written contract under which the machine was delivered to McLeod was filed as part of the petition. The court sustained the demurrer of the creditors to the petition of the Star Drilling Machine Company and entered judg
. The judgment of the court is based on the idea that the written contract between the company and McLeod constituted a sale of the property by it to' him. It is insisted for the company that the contract is not a sale, hut only an option, or offer to- sell, and-that' title to the property remained in the company, The written contract, so far as material, is in these words: “Memoradum of agreement, made in duplicate, this 16th day of July, 1904, by and between, the Star Drilling Machine Company of the city of Akron, county of Summit, and State of Ohio, party of the first, and George McLeod of city of Masontown, county of Fayette, and State of Pennsylvania, party of the second part: Witnesseth that the said first party has this day agreed to furnish to said second party, one No. 7 Star Portable Drilling Machine, oak frame, with 20 H. P. Oil Country Boiler, mounted, on its trucks, together with, the ropes and tools mentioned in the schedule hereto annexed, and made part hereof. The said first party agrees to load said machine on board cars at Akron, Ohio, for shipment; said second party agrees to receive the same upon its arrival at Glasgow, Kentucky, and to pay the freight and charges upon the same. The said party of the first part, warrants said machine to be of good materials, to be well made, and to do good work in drilling, pipe driving, or prospecting, if properly managed. It is agreed that said machine shall he furnished by said first party to the second party on a test trial of ten days, from its arrival at Glasgow, Kentucky, and that until the end of said test trial and until the complete fulfillment of the
The plaintiff alleged in the petition that $500 was paid,, but charged that it was paid as rent, and that this was left out of the contract by oversight and mistake. It also alleged That McLeod had failed to execute the notes and mortgage referred to; that he had bored a number of wells, which, at fifty cents a foot, amounted to more than the sum he had paid it;
The substance of the contract is that the company guaranteed the machine to be of good material, to
The Circuit Court properly discharged the order of delivery and properly held that the drilling company was not the owner of the property, but he erred in sustaining the demurrer to the petition of. the drilling company and dismissing its action. Though the plaintiff had brought its action in ordinary, when it should have been in equity, the fact that the action was brought on the wrong docket was no reason for dismissing it. The facts stated in the petition being sufficient to show that the plaintiff was entitled to a lien on the property, the court under the prayer for proper relief might give the plaintiff such relief as the facts showed it was
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Petition for rehearing by appellee overruled.