T. G. Gaylord & Co. v. O'Bryan

3 Ky. Op. 684, 1870 Ky. LEXIS 239

• Court: Court of Appeals of Kentucky
• Decided: March 10, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

Appellants, owners of a foundry, furnished the castings which constitute the subject of this litigation, by orders of O’Bryan, contained in two letters to them dated the 7th and 15th of April, 1867, and in which he directed the castings to be shipped to the Henderson Gas Company at Henderson City, promising to pay the price of said casting promptly on delivery. They were shipped on the 8th of May, 1867, by appellant and reached their destination in due time. When they arrived O’Bryan had left Henderson, his place of residence when he ordered the casting, rather in a clandestine manner, about the 24th of April, 1867, and has not returned since, he had left some days before, and after an absence of several days returned, and left the last time within a very few days thereafter. He was not at Henderson when the castings arrived, and had made no arrangement for their reception. Had no means to pay for them, told one of the witnesses about the time he left that he was unable to pay his debts, or to carry out his contract with the city, and directed the castings to be consigned to the Henderson Gas Company, when he knew there was no such company then in existence. These and other facts and circumstances show very clearly that the castings were bought by O’Bryan with the fraudulent intent of not paying for them.

Vance, for appellants. Yeaman, for appellees.

And that being the case appellants had a right to vacate the contract, if they could in fact be regarded as having parted with the title to the castings, and have a restoration of them, as against appellees whose equity was subordinate to the prior equity of appellants.’ Lane, &c. v. Robinson, 18 B. M., 623.

Wherefore the judgment is reversed and the cause is remanded with directions for further proceedings consistent herewith.