Opinion
Decided June 24, 1927.
Appeal from Carter Circuit Court.
JOHN M. THEOBALD and THOMAS S. YATES for appellant.
G.W.E. WOLFFORD for appellee.
Affirming.
Kate Underwood brought this action against the administratrix of the estate of S.R. Erwin, alleging in her petition that on or about January 4, 1917, she deposited and left in the care of S.R. Erwin the sum of $500, which he then and there agreed to return and repay to her upon demand, and that the same had never been returned or repaid to her, though duly demanded. She prayed the enforcement of the trust and judgment for the money. The allegations of the petition as to the deposit of the money with S.R. Erwin were controverted by answer. Proof was taken, and on final hearing judgment was entered in favor of the plaintiff. The defendant appeals.
There was no plea of limitation. The appeal raises only a question of fact. The plaintiff lived about a mile from the store of S.R. Erwin, who was a prosperous merchant, owning a farm and carrying on an extensive business. The plaintiff proved by O.W. Miller, who was a neighbor, that about a year and a half before Erwin's death this occurred:
"I was working for him, and we were sitting in his barn, and the subject came up about the financial condition of the Underwoods, and I said, 'I guess they all have their money,' and he said, 'I don't know about the rest of them, but I know about Kate Underwood, for I have her money.' "
She also proved by H.F. Owens, who was also a neighbor and friend of Erwin, this:
"I was at his place about three years before he died, and we was sitting by the store. Kate Underwood came to the store, and she went in the store and I think his son waited on her, and as she walked away I asked him who she was, and he told me it was Kate Underwood, and he said, 'I have $500 of her money for safe-keeping, not borrowed, and she hasn't got any note, witness, or anything of the sort; nobody don't know anything about it but me and her."
She showed by the cashier of the bank that she had $520 in bank on January 4, 1917, and drew it out on that day. She also showed by her sister, who was with her, that as they came home from the bank she went into the store of Mr. Erwin, and after staying there some minutes went on home. There was no effort to show that she had been paid. Erwin in the fall of 1923 took typhoid fever and died nine days after he was taken sick. He was a money lender, but all this is not inconsistent with his taking the $500 from Kate Underwood to take care of for her. It seems that her brother wanted to borrow the money. He did not want her to lose it. Her testimony on cross-examination is in effect that she lent him the money, but his declarations are that he simply took the money to take care of it for her. The circuit court knew better than this court the value of the testimony of local witnesses. The court cannot say that his findings of fact are against the weight of the evidence. The testimony of Miller and Owens, above quoted, is uncontradicted and, if credited by the court, warrants the judgment.
Judgment affirmed.