56 S.W.2d 545 | Ky. Ct. App. | 1932
Reversing.
The Turner-Elkhorn Coal Company made a verbal contract with T.W. Smith to do some construction work for it in the opening of a coal operation. As a result of the relation the company was compelled to pay out $828.49 to take care of certain checks issued by Smith during the course of the work. The company sued Smith to recover the amount of the checks. Smith admitted liability on the checks, but set up a counterclaim for a much larger amount for work done under the contract. The case has been tried three times. At the first trial Smith obtained a judgment on his counterclaim, which this court reversed. Turner-Elkhorn Coal Co. v. Smith,
It is first insisted that the case should have been transferred to equity upon the grounds that it involved *114
the cancellation of a written instrument upon an allegation of fraud in its obtention, and the adjustment of numerous accounts so complicated, and with such great detail of facts, as to render it impracticable for a jury intelligently to try the case. It is true that the cancellation of written instruments for fraud in procuring them may be the appropriate subject of equity jurisdiction, and in many species of fraud the jurisdiction is exclusively equitable. Queen Ins. Co. v. Marks,
In this case the plaintiff's original claim upon the checks was not denied, but the defendant in his counterclaim set up matters of fraud and sought an accounting of an extensive and complex character. The evidence showed a great detail of facts which no ordinary jury would be competent to try intelligently. A single instruction given to the jury embraced ten subdivisions, each referring to a separate item, and comprehended many details so complicated and difficult that it was impracticable for a jury to determine a result with any degree of accuracy. Hence, the case was one peculiarly appropriate for trial by the court, and the failure to transfer the case to equity was an error, prejudicial to the substantial rights of the appellant. *115
It is earnestly argued, however, that in the opinion on the last appeal in this case, this court said that if an amended pleading setting up fraud in the procurement of the contract were filed on the return of the case to the lower court and that pleading should be supported by sufficient evidence, "then the question of fraud in procuring the contract may be submitted to the jury." It is insisted that this statement in the opinion is the law of this case, and that, therefore, the trial court was without power to transfer this case to equity on its return to that forum. The opinion on the second appeal in this case was written at a time when no motion had been made to transfer this case to the equity docket. This motion came on the return of the case to the circuit court after the second appeal and after the amended answer and counterclaim of the defendant had been filed. Thus there was presented a different state of record than was before this court on the second appeal, and the statement of this court in its opinion on that second appeal that the case might be submitted to the jury did not preclude the trial court from transferring the case to equity when a different state of record was presented to it, as was the situation in this case after the motion to transfer had been made on the return.
Moreover, the whole case for the defendant depended at last upon the cancellation of a solemn settlement in writing, and the only testimony impeaching the writing was produced by Smith himself. His direct testimony was impaired and weakened by his admissions on cross-examination. His statements as to the alleged false representations were contradicted by three witnesses who were present when the writing was executed. The writing itself constituted cogent evidence of a complete settlement (Walker v. Walker,
In the case of Perry v. Thomas,
"Cancelling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them."
The court may permit further evidence to be taken, or dispose of the case on the record already made, as the parties may be advised, or the court determine.
The other questions raised on the record and debated by counsel need not be decided, but will be reserved without discussion or enumeration.
The judgment is reversed for proceedings not inconsistent with this opinion.