27 Ky.L.Rptr. 686
Court of Appeals of Kentucky.
April 13, 1905.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by N. A. Chamberlain against J. E. Golden.
From a judgment for defendant, plaintiff appeals.

This action was instituted by the appellant in the lower court to enforce a lien for lumber furnished appellee in the erection of a dwelling house in the town of Barbourville, Ky., amounting to the sum of $47.12 balance. The account produced by appellant, and filed with his petition, begins with items of lumber sold December, 1889, and continues to April 30, 1890. The total value of the lumber alleged to have been furnished to appellee in the erection of this house amounted to $132.12, and deducting the amount paid, $85, left the balance of $47.12 due appellant.

The appellee presented several defenses to appellant's cause of action, but we will notice only one. He denied that the items in the account sued on beginning with January 21, and ending April 30, 1890, amounting to the balance claimed, were furnished to him in the erection of this house, or that they were so used. He alleged that the ceiling and the other items specified in this contested part of the account, used in the erection of the building named, were purchased from others. The appellant controverted this, proof was heard, and upon a trial the lower court dismissed appellant's action.

The evidence preponderates in favor of the appellee--that the lumber referred to in that part of the account contested was not used in the erection of this dwelling, but that the lumber was purchased from three other parties.

Appellant contends that the appellee, some time after the institution of his action, and after appellee had filed his answer, in consideration of $5 paid to appellee, executed a writing agreeing to withdraw his defense to the action, and permit appellant to enforce the lien on the dwelling for the payment of the amount of the balance claimed by him. Appellee did not deny the execution of the writing, or of receiving the $5 in consideration therefor, but says that at the time of the execution thereof his counsel was absent, and that he was so much under the influence of intoxicating liquors that he was not capable of protecting himself. It appears that at the time appellee, for the consideration of $5, agreed to abandon his defense to appellant's action, he was not the owner of the dwelling house; that he had sold it to one Bowman, who had sold it to Black, and Black was then in the possession thereof; that these facts were known to both appellee and appellant. Neither Bowman nor Black had been made parties to the action. Appellant knew that Black was the owner of the dwelling, and was interested in the question as to whether or not his alleged lien should be enforced upon this property, and his action in securing this writing from appellee, under the circumstances, is not entitled to the favorable consideration of the court, and especially when it is sworn, under the proof, that he had a good defense to the action.

Wherefore the judgment is affirmed.

Ky.App. 1905.
86 S.W. 521, 27 Ky.L.Rptr. 686


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