58 S.W.2d 662 | Ky. Ct. App. | 1933
Affirming.
C.A. West claims that J.L. Butler employed him to advertise and sell at public auction the property known as the "Dillehay Brien Company property," situated in Danville, Boyle county, Ky., and agreed to pay him 20 per cent. of the gross price for which it sold; that he fully executed the contract; that the property sold for $12,000, and by reason thereof Butler is indebted to him in the sum of $2,400. Butler's defense is a denial, but, by an amended answer and counterclaim, he sought to recover of West $500 paid by him on a note theretofore executed by West as principal and himself as surety, to the Citizens' National Bank of Danville, Ky.
The case was tried before a jury. The evidence in behalf of West fully sustains the allegations of his petition, while that for Butler supports his defense. West claims the contract was in parol. Butler asserts that it was reduced to writing, signed and delivered by West. He produced the writing as a part of his testimony. It reads:
"Oct. 17, 1924. In agreement of C.A. West J.L. Butler of the Farris Sale Oct. 24/24. West is to put on sale for Butler of Dillehay Brick Company *406 property C.A. West puts on the sale for Butler, on the following terms. West and Butler is to share equally in the expense of sale that is West pays half expense and Butler pays half expense and all over $23,000 Dollars the property brings they are to divide equally."
A review of the evidence evinces the fact that it is conflicting. Where the evidence is conflicting, as it is in this case, this court is without right to interrupt the verdict of the jury. It is sufficient to support a verdict for either West or Butler. The verdict is conclusive unless some other error affirmatively appears in the record. West contends that the written contract produced by Butler in support of his defense was improperly admitted in evidence. It is his contention that it was incumbent upon Butler to set up in his answer the written contract and thus present it as a defense, and, having failed to do so, it was inadmissible as evidence. The traverse of West's petition presented a general issue. With it so raised it should not be disputed that Butler was entitled to prove, and the evidence was competent to show, the contract between them was reduced to writing and signed by West, and that its terms and provisions disproved the allegations of the petition. Butler in order to defeat his recovery was not confined to parol evidence or the exhibit filed as a part of his pleading. Royer Wheel Co. v. Dunbar, 76 S.W. 366, 367, 25 Ky. Law Rep. 746; Cumberland Tel. Tel. Co. v. Cartwright Creek Tel. Co.,
The court in its instructions to the jury concisely presented the theory of West as it was alleged and proven. Ordinarily, where the defense is a denial, a converse in form, as follows: "Unless you so believe the jury will find for the defendants" — is proper and sufficient to present the respective theories of the parties. Louisville N. R. Co. v. King's Adm'r,
West offered an instruction authorizing the jury to return a verdict on the counterclaim asserted by Butler, growing out of the $500 note. He complains because the court refused to give it to the jury. Conceding the correctness of his contention in respect to this instruction, the jury failed to find for West, and there was nothing to offset the $500 admitted due Butler, and therefore West was in no way prejudiced by the failure of the court to direct it to offset or credit its finding *408 under instruction No. 1, with the $500 counterclaim. The issues made by the pleadings and to which the evidence of the parties was directed, were properly presented by appropriate and concise instructions, and a fair and impartial trial was accorded to West.
Therefore the judgment is affirmed.