K. & M. Lumber Co. v. Gully
K. & M. Lumber Co. v. Gully
Opinion of the Court
This suit originated in the Circuit Court of Kemper County when the appellant, K. & M. Lumber Company, Inc., as plaintiff, filed its declaration against the appellee. H. II. Golly, as defendant, seeking to recover an alleged indebtedness of $8,121.90 on open account. An itemized statement of the alleged account was exhibited to the declaration. The account covered the period from October 17, 1951, through March 31, 1956.
Thereafter the appellant, K. & M. Lumber Company, Inc., as complainant, filed its original bill in the Chancery Court of Kemper County against the appellees, H. IT. Gully and Mrs. Ruby Rush Gully, as defendants, alleging that the said defendant, H. H. Gully, was indebted to it in the sum of $8,121.90, and seeking to recover that amount on open account and seeking further to have set aside certain conveyances and transfers of real and personal property alleged to have been made by the appellee, H. H. Gully, to his wife, Mrs. Ruby Rush Gully, for the purpose of hindering, delaying and defrauding creditors, and particularly the complainant. Later on motion
It was further alleged in the amended bill that the complainant, K. & M. Lumber Company, Inc., was engaged in the business of operating a lumber yard and that it purchased rough dressed lumber from various persons and that the defendant, H. H. Gully, has been engaged in the business of operating a sawmill and in purchasing tracts of timber and cutting same and selling the rough dressed lumber realized therefrom to the complainant and other persons or corporations. It was also charged that certain conveyances made by the appellee, Gully, to his wife were fraudulent and for the purpose of hindering and delaying creditors.
The defendants answered the said amended bill of complaint, denying that the said H. H. Gully was indebted to the appellants in any amount, admitting all of the items of the itemized statement of account with the
The appellees challenged the correctness of the foregoing items of the account but admitted all other items of the account. The appellees made their answer a cross-bill wherein it was alleged that they did not owe the aforesaid items aggregating $16,700, and that when said items are eliminated, the amount showed an indebtedness owing by the appellant to the appellee, H. H. Gully, in the sum of $8,578.10, and the appellees, by cross-bill, demanded judgment against the appellant in this amount.
The appellees in their answer, while admitting that the appellee, H. H. Gully, transferred and conveyed to his wife, Mrs. Euby Eush Gully, all of his real and personal property, denied that said transfers were for the purpose of hindering, delaying and defrauding creditors, and denied particularly that the same was for the purpose of defrauding the appellant, and averred that they were not in any manner indebted to the appellant for the sum demanded or in any amount.
At the conclusion of the evidence, the chancellor made a finding of facts and stated his conclusions of law. He held under conflicting evidence that the proof on behalf of the appellant was insufficient to show that the appellees, or either of them, were indebted to the appellant in any sum, and further held that the proof was insufficient to show that the appellant was indebted to the appellees in any amount on the appellee’s cross-demand. The chancellor accordingly rendered a decree dismissing* the amended bill of the appellant and also dismissing
The appellant prosecutes an appeal to this Court from the decree of the chancellor. There is no cross-appeal by the appellees, H. H. Gully, and his wife, Mrs. Ruby Rush Gully. On this appeal the appellant makes the following assignments of error:
(1) The trial court erred in refusing to admit into evidence a complete record of the business dealings between the appellant and the appellee, H. H. Gully, for the period of time covered by the appellant’s itemized statement of account on which the suit was based.
(2) The trial court erred in its finding of fact to the effect that the appellant, complainant below, had failed to prove its case by a preponderance of the evidence, and such finding of fact is manifestly erroneous and is not supported by substantial evidence, and the trial court, therefore, erred in entering a decree dismissing the appellant’s bill of complaint and in failing to award the appellant a decree for the full amount sued for. .
(3) The trial court erred in failing to set aside the conveyances from the appellee, H. H. Gully, to the appellee, Mrs. Ruby Rush Gully, of all of the said H. H. Gully’s real and personal property on the grounds that said conveyances were fraudulent and that they were made for the purpose and intent of hindering, delaying and defrauding the appellant as a creditor of the said H. H. Gully.
The appellant contends that the chancellor’s finding of facts is not supported by substantial evidence. We think this contention is not well founded.
The evidence on the issue as to whether or not the appellee, H. II. Gully, was indebted to the appellant, or
Thus the issue was sharply drawn as to whether the disputed items, with the two exceptions mentioned, represented funds which the appellant advanced for the purchase of timber that was to belong to the appellee Gully, or whether it represented funds paid by the appellant to purchase timber for its own account. It was
It readily appears that the evidence was conflicting and presented an issue of fact for the determination of the chancellor. The chancellor determined this issue of fact and we are unable to say that he was manifestly wrong and are, therefore, not warranted in disturbing his finding.
It is further contended by the appellant that the chancellor erred in failing to admit in evidence a complete record of the business dealings between the appellant and the appellee, H. H. Cully, for the period of time covered by the itemized statement of account. The appellant particularly complains that the chancellor erred in refusing to admit in evidence certain cancelled checks payable to the appellee, H. H. Cully, and certain lumber settlement sheets, covering the entire period of the account. The ledger and two journals covering the account of the appellee, H. H. Cully, were admitted in evidence and reflected the entire account sued on. The chancellor in his ruling excluded only such checks and settlement sheets as pertained to the admitted items of the account, and expressly stated in his ruling that he would hear proof with reference to the disputed items of the account. We are of the opinion that the chancellor was not in error in so ruling.
The appellant also contends that the chancellor erred in failing to set aside as fraudulent the conveyances by the appellee, H. H. Cully, to his wife. Of course, since the chancellor found as a fact and held that the appellee, H. H. Cully, was not indebted to the appellant, it followed as a matter of course that the appellant was not entitled to have the conveyances set aside.
Affirmed.
Reference
- Full Case Name
- K. & M. Lumber Company, Inc. v. Gully, et ux.
- Status
- Published