Owens v. Dyer

Opinion op the Court by Drury, Commissioner ^Reversing. This is the second appeal of this case. The former •opinion is in 204 Ky. 59, 263 S. W. 663. This suit was brought by Dyer to settle a partnership which he alleged •existed between him and the appellant, Thomas H. Owens. Owens, in his answer, admitted that a partnership' had existed between them but alleged.that in 1921, “He bought the entire interest of Dyer for the contract price of $1,000.00.” Dyer does not deny this, but says in his reply: “He then made the proposition of selling out to the defendant, and agreed to take $1,000.00 . . . and Owens promised and agreed to take it but . . . never did so.” Owens afterwards filed .an amended answer and counterclaim containing this: “On the 27th day of April, 1921, that said Dyer executed and delivered to G. S. Smith two notes for the sum of $810.00 and that thereafter and before *360 said notes became due that the said Smith indorsed and delivered said notes to this defendant and that said notes are just, due and unpaid, and that same is-filed herewith and made part hereof, and marked ‘Notes’ for identity.” The case was referred to the .commissioner and in the-report of the commissioner this claim of defendant Owens for $810.00 was allowed against Dyer. To this report Dyer filed exceptions, complaining’ of six different items-therein, but making no complaint of the allowance to Owens of this claim against Dyer of $810.00 on account of' these notes. When Dyer’s deposition was taken, he said on direct examination, “I told Owens if he would give me $1,000.00 ... I would take it.” On cross-examination, he said, “I owe this $810.00.” “Nothing was said about these notes.when I agreed to take $1,000.00.” The trial court adjudged this sale invalid because not made in writing, entered a judgment in accord with the report of the commissioner, but disallowing this claim of $810.00 against Dyer which the commissioner had allowed. Dyer appealed and Owens prosecuted a cross-appeal. The judgment was reversed on both the original and cross-appeal. In the opinion this court spoke of this sale four different times as a sale for $1,000.00. That opinion has never been -modified. According to that opinion, according to the pleadings, and it appears to us, according’ to the evidence, this was a sale by Dyer to Owens for $1,000.00. Clearly, against this $1,000.00 Owens was entitled to set off this $810.00 as^•serted in his counterclaim, or anything else Dyer owed him, yet the trial -court refused to allow it, and entered a judgment in favor of Dyer against Owens for $1,000.00,. which was equivalent to finding that Owens was to pay Dyer $1,810.00 for his interest in the restaurant. The appellee, Dyer, has not found sufficient merit in this judgment to furnish us with a brief in -defense of same. We have been unable to find any defense for him. The judgment is reversed and the canse remanded for consistent proceedings. -