Erwin's Administratrix v. Underwood

295 S.W. 1066, 220 Ky. 713, 1927 Ky. LEXIS 634

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 24, 1927
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson—

Affirming.

Kate Underwood brought this action against the ■administratrix of the estate of S. R. Erwin, alleging in her petition that on or about January 4, 1917, she deposited and' left in the care of S. R. Erwin the sum of $500, which he then and there agreed to return and repay to her upon demand, and that the same had never been returned or repaid to her, though duly demanded. 'She prayed the enforcement of the trust and judgment for the money. The allegations of the petition as to the •deposit of the money with S. R. Erwin were controverted by answer. Proof was taken, and on final hearing judgment was entered in. favor of the plaintiff. The defendant appeals.

There was no plea of limitation. The appeal raises-only a question of fact. The plaintiff lived about a mile from the store of iS. R. Erwin, who was a prosperous merchant, owning a farm and carrying on an extensive-business. The plaintiff proved by O. W. Miller, who was a neighbor, that about a year and a half before Erwin’s death this occurred

“I was working for him, and we were sitting in Ms barn, and the -subject came up about the financial condition of the Underwoods, and I said, ‘I guess-they all have their money,’ and he said, ‘I don’t know about the rest of them, but I know about Kate-Underwood, for I have her money. ’ ’ ’

She also proved by .H. F. Owens, who was also a. neighbor and friend of Erwin, this:

“I was at Ms place about three years before he ■died, and we was sitting’ by the store. Kate Underwood came to the store, and she went in the store- and I think his son waited on her, and as -she walked away I asked him who she was, and he told me it was Kate Underwood, and he said, ‘I have $500 of her 'money for safe-keeping, not borrowed, and -she hasn’t got any note, witness, or anything of the -sort;, nobody don’t know anything about it- but me and her. ’ ’

, She showed by the cashier of the bank that she had $520 in bank on January 4, 1917, and drew it out on that, day. She also showed by her sister, who was with her, that as they came home from the- -bank she went into the-store of Mr. Erwin, and after staying there some minutes went on home. There was no effort to show that-she had been paid. Erwin in the fall of 1923 took typhoid fever and died Mne days after he was taken sick. Pie-was a money lender, but all this is not inconsistent with Ms taking the $500 from Kate Underwood to take care of for her. It seems that her brother wanted to borrow the money. He did not want her to lose it. Her testimony on -cross-examination is in effect that she lent Mm the money, but Ms declarations are that -he simply took the money to take care of it for her. The circuit court knew better than this court the value of the testimony of local witnesses. The court cannot say that Ms finding’s of fact are against the weight of the evidence. The testi mony of Miller and Owens, above quoted, is uncontra•dicted and, if credited 'by the court, warrants the judgment.

Judgment affirmed.