140 Ky. 306
Court of Appeals of Kentucky.
Oct. 18, 1910.
ACTION: Reversed.

Appeal from Circuit Court, Knox County.
Action by James Kinningham against the Flat Lick Stave Company.
From a judgment for plaintiff, defendant appeals.

This action was commenced by appellee, James Kinningham, by filing a petition in the Knox circuit court to recover from appellant, Flat Lick Stave Company, $178, balance due him, as alleged, upon a contract with it for hauling staves. The answer admitted an indebtedness to the plaintiff of $138, and denied owing the remainder. In the second paragraph of the answer the defendant alleged as a set-off against the claim of the plaintiff that, while engaged in the work of hauling staves for it, he had wrongfully and surreptitiously taken 10,000 staves belonging to the defendant, and wrongfully converted them to his own use, to the damage to the defendant in the sum of $500. The affirmative allegations of the answer were placed in issue by appropriate pleading, and a trial before a jury resulted in a verdict in favor of the plaintiff in the sum claimed in his petition, to wit, $178. The defendant's motion for a new trial having been overruled, it has prosecuted this appeal for the purpose of reversing the judgment dismissing its answer in so far as it alleged a set-off.

The evidence showed conclusively that the plaintiff had taken timber belonging to the defendant, out of which he had manufactured some 7,000 or 8,000 staves, which he sold to one Jack Asher. He claimed that this timber was given him by R. C. Baker & Bro., who had sawed the staves for defendant under contract with it. The evidence further showed without contradiction that the appellant purchased the timber from George Kinningham, the plaintiff's father, and paid him $600 for it; that this timber was sawed for appellant by R. C. Baker & Bro. under contract, but Baker & Bro. had no sort of authority to give away the timber of appellant. R. C. Baker denied that he gave any timber to the plaintiff; but, conceding for the purpose of this case that he did so, he had no authority and his gift conveyed no title to the plaintiff. The court should have instructed the jury peremptorily to find for the defendant on its set-off the value of the timber appropriated by the plaintiff to his own use, and should not have submitted the question whether the conversion was wrongful or not. There was evidence tending to show that the plaintiff had concealed and stolen a lot of the staves, which he was hired to haul for the appellant. This he denied, but he did not deny that he had manufactured from the timber given him, as he claims, by Baker & Bro., something over 7,000 staves, which he had sold to Jack Asher. To the extent of the value of these staves, the appellant was entitled to a peremptory instruction. And, in addition, it was entitled to an instruction that, if the plaintiff had taken and wrongfully converted any other staves belonging to appellant to his own use, they should find for it, in addition, the value of the staves so wrongfully converted.

For these reasons, the judgment is reversed for proceedings consistent with this opinion.

Ky.App. 1910.
131 S.W. 6, 140 Ky. 306


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