Morgan v. Hazard Lumber & Supply Co.

15 S.W.2d 292, 228 Ky. 369, 1929 Ky. LEXIS 575

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 26, 1929
• Status: Published

Opinion

Opinion op the Court by

.Commissioner Hobson

.Affirming..-

Dr. Gr. W. Morgan bought from the Hazard Lumber & Supply Company material for certain work on his' residence ; the lumber company, the bill not being paid, filed a lien as provided by the statute,- and brought suit to enforce its lien. • Dr. Morgan pleaded as a counterclaim, in substance, that the lumber company had received from •Troy Stacy, and converted to its-own use, lumber belonging to him, amounting to $212.21, and prayed judgment against it for the balance after deducting the amount of plaintiff’s claim. The circuit court on the proof gave judgment in favor of the plaintiff.. The defendant appeals. The facts are these:

Dr. Morgan made a written contract with Troy Stacy by which Stacy agreed to furnish the material and build the house, for $5,800. The amount of the lumber that would be required was estimated at $2,554.42. Stacy made a contract with the Hazard Lumber & Supply Company to furnish the material, and it was agreed between the three that Morgan would pay for the material as it •was delivered on the ground: As the material was delivered the bill was sent to Stacy, and a copy of the bill mailed to Morgan. Morgan paid these bills-, and in his settlement with Stacy credited himself with the amount so paid, $2,554.42. Stacy, .claims that he had finished the contract; Morgan claims that the contract was not finished ; Stacy claims that Morgan owed him about $300 for extra work, find Morgan claims that- there was over $100 of work which remained undone, and should have been performed under the contract. Stacy removed his tools and everything he had -from the premises, including some lumber embraced in the estimate find in fact not used in the building, amounting to $212.21.. . Stacy .toojk this lumber back to. the lumber company, and the lumber company paid him for it.

The question presented is: Was this Stacy’s lumber or was it Morgan’s lumber? On questions of-fact.like this, this court gives-some weight to-the finding of the chancellor, and does-' not ■ disturb' his' finding when the mind’is left'in doubt as to the truth.'- The- testimony of Morgan and Stacy is very conflicting. According to Stacy, Morgan owes him $30Q ; but .according. t.o, Morgan, Stacy owes him a somewhat smaller amount'. '’ Biit' the fact is that in the settlement between-Morgan: and Stacy, Stacy was charged with the whole bill of lumber, $2,554.-42. The facts of the transaction support the conclusion that this lumber was in fact sold to Stacy and not to Morgan, and was in fact Stacy’s lumber when Morgan, in the settlement with Stacy, credited himself with the whole amount of the bill. The amount which Morgan paid the lumber company on the lumber was money paid by Morgan for Stacy under his contract with Stacy, no less than any sums he may have paid Stacy’s workmen. How the account stands between him and Stacy must be settled in an action between them. By a clerical error one of the credits on the bill was omitted, and judgment was entered against Morgan for $121.30, when the undisputed-proof was that the true balance was $117.97. This clerical error may be corrected in the circuit court on the return of the case.

Judgment affirmed.