Swan v. Vaughn

1 Ky. Op. 522, 1867 Ky. LEXIS 323

• Court: Court of Appeals of Kentucky
• Decided: April 18, 1867
• Status: Published

Opinion

Opinion op the Court by

Judge Kobertson :

The multitudinous beirsliip of the appellants is sufficiently admitted for the maintenance of this action.

The proof falsifies the answer so far as to show indisputably that Samuel Swan was a joint and equal purchaser of the land. It also shows that Swan and Vaughn were mercantile partners and that Vaughn induced Swan to join him in the purchase by assuring him that he would pay for the land with partnership funds which he, the only active manager, represented as more than sufficient to pay the entire consideration.

And, there being no proof of a deficit of partnership funds, or even of any settlement of partnership accounts, the prima facie presumption is that Vaughn paid for the land, as contemplated by both parties, with partnership means, either directly or indirectly.

The facts and deductions imposed on the appellee, Vaughn, the burden of showing either that there were no partnership funds appropriable to the purchase or that they had been otherwise accounted for and appropriated, and that Swan, therefore, had abandoned the purchase.

Woods, for Appellant. Roundtree & Fogle, for Appellee.

It seems to us, therefore, that the converse did not devolve on the appellants under the pleadings and proofs, and that, consequently, the judgment dismissing their petition without prejudice, only because they would not so amend it as to show the opposite of what the appellee ought to have been required to show, was erroneous. Wherefore, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.