
    MENGEL CO. v. DIALS.
    Court of Appeals of Kentucky.
    Feb. 13, 1953.
    Clark Pratt, Hindman, for appellant.
    Dan T. Martin; Hindman, for appellee.
   STANLEY, Commissioner.

The petition seeks judgment on a check for $212.50 given on January 1, 1948, by Thé Mengel Company to Dennis Dials, payment of which was stopped at the bank. The case was resolved into an issue of whether or not it was the amount agreed to be paid for timber wrongfully cut from Dials’ land or whether any such timber was cut.

In the absence of a brief for the appellee, we accept the appellant’s statement of the facts as being established by the record. Skaggs v. Ohio Valley Rock Asphalt Co., 292 Ky. 758, 166 S.W.2d 1005.

The Mengel - Company had purchased timber above "twelve • inches in diameter at the stump on land in which Dials later acquired a half interest. He complained to Mengel’s local manager that a subcontractor had cut some undersize timber from his land and demanded payment. The check was given Dials as security until the matter could be straightened out. The bank was promptly advised not-to pay the check. After investigation,, the company insisted that no undersize timber had been cut from Dials’ tract. A few weeks later Dials accepted in settlement 1,000 feet of lumber with which to build a barn. The suit was filed nearly two years later and after The Mengel Company had closed its operations in Knott County.

The plaintiff failed to prove that certain -claimed undersize logs had been cut from his land. Nor did he prove their value. The court should have directed a verdict for the defendant.

Since there may be another trial with sufficient evidence, we note that the instructions were erroneous. In effect, they authorized a verdict for $212.50 for the plaintiff if the jury believed he had any claim against the defendant.

The motion for an appeal is granted, and the judgment is reversed.  