184 Ky. 255 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
This action was instituted by Runyon and Epling in the Pike circuit court against the Superior Coal Company and W. T. Brooks, its general manager, to recover $1,650.00 for manufacturing lumber, and $137.50 for logs cut and skidded, under a contract entered into between the parties April 18, 1916, whereby Runyon and Epling undertook to manufacture a certain boundary of timber belonging to the company, into lumber at the price of $11.00 per thousand feet,
The defendant answered, denying the allegations of the petition, except it admitted the execution of the contract and a partial performance thereof, but pleaded a counterclaim and set-off in which it alleged that at the time of the making of the contract for the manufacture of the lumber, it was preparing to enter into the coal mininabusiness at Elkhom City, and that in order to have lumber with which to erect its tipple and mining camp on which it desired to rush the work, it entered into this contract with Runyon and Epling limiting the time in which to begin the manufacture of the lumber and completion of it in order to expedite their work of building and equipping their coal mining camp; that the work of constructing the mining camp depended upon the rapidity with which the lumber was furnished and that the failure of
Each party acknowledged the execution of the original written contract, but appellees Runyon and Epling insisted that at the time Epling’s name was placed in the contract by Brooks, the terms of the contract were modified to the extent of giving additional time in which to .complete the manufacture of the lumber, and the failure of appellee Runyon to commence the work within 10 days was waived. This is denied both by the pleading and the evidence of the Superior Coal Company and Brooks. Quite a volume of evidence was introduced upon the few controverted points, and the case being submitted to the court for judgment, it was decreed that Runyon and Epling recover of the defendant Superior Coal Company the sum of $1,269.40 for lumber actually manufactured at the contract price of $11.00 per thousand feet; and the further sum of $300.00 for work done in cutting, snakiusr and skidding timber which was not manufactured into lumber, but which was partly or wholly prepared for that purpose. The attachment was also sustained. From this judgment Superior Coal Company appeals.
It is the contention of appellant that the petition did not allege a cause of action in that it did not aver the contract had been fully completed but that it only averred that appellants had sold 7,000 feet ofilumber and had converted to their own use 14,000 feet of lumber,
The trial court rejected the counterclaim of appellant, and rightfully so we think, because the weight of the evidence is to the effect that the delay in commencing the work was due to the failure of appellant to provide a mill site, and the time in which to complete the work was extended. The judgment of the chancellor is sustained by the weight of the evidence, and there being no error of law cited by appellant, the judgment is affirmed.