Atkinson v. Miller Supply Co.

Opinion op the Court by Judge Nunn Affirming. A few years since, the Louisa Water Company made an assignment, and one F. L. Stewart was appointed receiver. Appellee presented claims against the Water [553] Company amounting to about $3,500.00, and something over $2,500.00 worth of them was allowed as common, claims against the Water Company.. (Miller Supply Co. v. Louisa Water Co.’s Assignee, &c., 128 Ky. 476.) The property of the Water Company was ordered sold, and appellant, G-. W. Atkinson, purchased the property at a price which satisfied all the preferred claims and paid about 60 cents on..the dollar of the .general unsecured claims. Appellant’ claims to have purchased from appellee its claims allowed against the Water Company, u?ider and by the following contract: “In consideration of $1,019.70 cash in hand paid, the receipt of which is hereby acknowledged, The Miller Sup- • ply Company hereby assigns, sells, and sets over to G. W. Atkinson its judgment against the Louisa Water Company in the Lawrence Circuit Court of Kentucky (April Term, 1907), it being expressly understood this sale is made without recourse, and is a sale only of any amount that may be due it in the case of Castle, Assignee v. Louisa Water Company, et al. “The Miller Supply Company, “By W. J. Harvey, Secretary.” This writing was never delivered to appellant, as he alleges, but by agreement it was left with W. J. Harvey, Secretary of aupellee, with the understanding that he would send it the next day to the First National Bank of Louisa, together with a draft on that bank for $1,019.70, the purchase price of the claims, which Harvey failed to do. Atkinson, a few days afterwards, tendered to appellee the above amount, and demanded an assignment of the claims, which was refused, and he then instituted this action against appellee and the receiver to enforce his alleged contract. Appellee answered and denied the allegations of the petition and averred that the trade.was never completed; that it was true its secretary signed the writing copied above, but that it was with the distinct understanding that the paper was to be retained by its secretary to be submitted to the president and directors of the company for their approval, and as they disapproved, the paper was never sent to the bank in Louisa. The lower court tried the case and rendered judgment in favor of appellee. It is not necessary to refer to the testimony in detail; it is sufficient to say that each party introduced positive testimony sustaining their allega [554] tions, and we are unwilling to disturb tbe finding of tbe lower court upon tbe facts, as the testimony of each-party is about of equal weight. For these reasons the judgment of the lower court is affirmed.